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Comment by lmm | Hacker News Reader

The more I read the more sympathy I have for the government here. They had a (presumably lawfully obtained) warrant against a specific user; it's not they who designed lavabit such that it was impossible to execute this without obtaining access to every other user. The proposal that Levison would extract the information himself rather than turning over the keys strikes me as completely unrealistic - any information so obtained would be quite rightly thrown out of court, because there's no reliable evidentiary chain, only (in effect) Levison's word. Even if he had turned over the SSL keys, the US still has a fairly strong "fruit of the poison tree" doctrine: any information the government happened to obtain on other users would be invalid for prosecution because it wouldn't be covered by their search warrant.

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The more I read the less I have. why? Because it is individuals within the government, who know that what they truly need it limited access, but rely on the backing of the US Government to just get everything in hopes something neat falls out.

Worded differently, far too many of these agents are willing to abuse the power of the courts, the secrecy of it all, to intimidate anyone because it makes the feel equally powerful.

there is NO justice when the courts are secret. Justice does not exist where the public is not allowed to go.

the issues he faced proved that there is nothing you can do because they will simply slap "secret" on anything and then threaten you with jail, which once there your stuck because no one was allowed to know.

Since when are search warrants conducted without being under seal? Warrants persuant to a murder or racketeering case are not public information prior to execution. Otherwise the evidence would be disposed of by the perpetrators.

I think he was referring to the fact that so much of the case remained, and still does remain, secret for long after the warrant was served.

> it's not [the government] who designed lavabit such that it was impossible to execute this without obtaining access to every other user.

That's true, but they're still essentially implying that services which are explicitly designed to omit backdoor capabilities for the government to spy on you -- that is, services offering actual cryptographically guaranteed privacy, not just "no one has looked yet, and if they did, it'll all turn out okay in the end trust us" -- are broadly illegal and will get you criminal contempt.

It has always been illegal to not comply with search warrants. Why would search warrants for digital data be any different?

It's also always been legal to say "sorry, we never record any of that information". You can get a warrant asking a bartender to provide you with names, addresses, and arrival and departure times, and transcripts of every conversation of every patron of his bar, and he can stand up in court and say "sorry, I don't have that information, and I'm not prepared to start collecting it.". Would you be happy for the FBI to be able to compel a bar owner to start collecting those records for everybody who walks into his bar? Without letting either new patrons or regulars know he was doing so?

It's also always been legal to say "sorry, we never record any of that information"

Only if it is true. He has the data, the article says he has worked with law enforcement before in a kiddie porn case.

>You can get a warrant asking a bartender to provide you with names, addresses, and arrival and departure times, and transcripts of every conversation of every patron of his bar

No, you can't; the courts don't issue warrants like that. They'd issue a warrant for that information for one particular patron whom they already had reasonable suspicion of.

If the FBI have a warrant to put a bug on one regular's table, that doesn't seem unreasonable. If the bartender's carefully built the bar so that you can hear every conversation from every table and so the only way you can place a bug is one that would also record everyone else's conversations... yeah, I'd say that's unfortunate (and pretty poor design on the owner's part), but the FBI has the right to place the bug they've got the warrant for, and if there's really no way to do that without it picking up other conversations then too bad.

The nature of email is that the government's methods would simply collect all users' data, regardless of whether it was the target's or not. This would be true regardless of Lavabit being designed with user protection in mind or not, unless specialized methods such as those Levison offered to write were employed. Such methods would necessarily vary from provider to provider, because each provider is set up differently. The government simply defaults to massive collection in all cases so they don't have to write that or pay someone to write it. He offered to give them a means to get only the data they asked for, but they turned that down.

Lavabit had no such guarantees. First, the court order was for meta-data which wasn't encrypted. Second, encryption was done server side, so they did have access to the data the government requested.

The judge wasn't talking about end-to-end encryption. They were talking about Lavabit's assertion that it was difficult to get the data they admitted to having.

You say "Lavabit had no such guarantees."

Without me arguing one way or another whether that's true -- do you think if they had better guarantees, that anything would be different here? That the government would say "oh no, we'll back down now"?

Suppose that Lavabit sold smart cards for end-to-end encryption, and as a service would store ciphertexts for you. The government shows up with a warrant, Lavabit says, "Sorry, we cannot comply because we cannot access secret keys or decrypt messages by some other means." What exactly does the government do after that?

The point is that Lavabit's architecture did not resist these kinds of demands at all. At best all Lavabit could do is protect your mail until you log in.

So here's a hypothetical for you. Suppose we build an architecture which you feel is more secure. Then the NSA people say "we have analyzed it, and there's a theoretical information leak. because that information leak exists you have to install our software which will exploit it. but if you'd designed your system better you would have been okay. also, incidentally, you're now legally forbidden from fixing this leak."

Then the legal obligations of the architecture are primary determined by the effectiveness of your security architecture; the existence of defects in the architecture which would preserve security in the absence of their exploitation is the thing matters to the court system.

That sounds tantamount to what you're proposing; is that really the sort of legal framework you think we have / should have? I personally think it's ridiculous, and I reject your justification and others which rely on a technical deficiency in Lavabit's implementation to endorse the legality and moral authority of the court's orders.

"Suppose we build an architecture which you feel is more secure. Then the NSA people say "we have analyzed it, and there's a theoretical information leak. because that information leak exists you have to install our software which will exploit it. but if you'd designed your system better you would have been okay. also, incidentally, you're now legally forbidden from fixing this leak.""

One of the features of a good security system is that there is no single party that can be compromised in a way that violates everyone's security. Basically, your example assumes that the system has a fundamentally risky design.

Even if you need a trusted party in your design, it should be the case that the party only has a limited ability to violate everyone's security. For example, consider an identity-based encryption system, which by its nature requires a trusted party to generate keys. Under the right circumstances, that party can delete the master secret key needed to generate keys; one can imagine setting things up so that the master secret is destroyed periodically, say once per month, so that only keys that were recently issued can be compromised if the authority is compromised (your identity under such a system might include some information about when your key was issued).

"I reject your justification and others which rely on a technical deficiency in Lavabit's implementation to endorse the legality and moral authority of the court's orders."

I think it would be fantastic to have a trustworthy government, but that is orthogonal to the issue here, because the security of a system like Lavabit is not limited to resisting court orders. Suppose the Lavabit have become as big as GMail i.e. big enough that the government might threaten an antitrust investigation if special favors were not performed. Suppose that a foreign government was trying to conduct industrial espionage against Lavabit's users, and surreptitiously installed eavesdropping software or equipment.

For that matter, suppose that you were personally involved in a lawsuit against Ladar. Would you communicate with your lawyer using Lavabit in that situation?

Also consider the reality that laws can change. It might take a massive terrorist attack to cause laws to change for the worse. Maybe a dictator will rise to power. Maybe people will just stop caring. Maybe it will be a combination of things, but the point is that building a system that relies on the law to protect users' rights is a fundamentally bad approach. It was not merely laws that stopped mass surveillance previously; when letters were sent primarily via the postal system, it was the lack of abundant and automatic copying that prevented mass surveillance. Laws are easy to change; widely deployed and widely used technologies are much harder to change (at least in ways that conform to the desires of politicians and governments).

CALEA requires that all telephone companies (and now mobile phone and cable companies) provide a means of "tapping" a phone line. To my knowledge, there's nothing similar that says a data service has to provide the ability to retrieve unencrypted data.

What they required was more like the means to tap all the phone lines simultaneously.

See Section 216 of the Patriot Act, which throws in the ability to get "pen register" information (metadata) from Internet communications.

http://www.justice.gov/archive/ll/subs/add_myths.htm#s216

Yet another reason to repeal the "Patriot" Act.

Wouldn't metadata in this case be like "Ip X connected at Y and transferred Z bytes"? Similar to what a pen register produces with a phone call.

You are incorrect. The usual process in cases where the government subpoenas data from service providers is for the service providers to gather the data and supply it to the government. Doing anything else is nearly nonsensical since the government does not have the domain knowledge of the systems of the service provider to be capable of retrieving the data.

> "They had a (presumably lawfully obtained) warrant against a specific user; it's not they who designed lavabit such that it was impossible to execute this without obtaining access to every other user."

This is what the battle over the clipper chip was about, and the government lost that one. Communications providers, absent any prior court orders, have no legal obligation to make their systems mass backdoor-compliant. It is the government, nominally, which is burdened here by the obligation to conduct their investigation without trampling the rights of 400,000 other people.

> "Even if he had turned over the SSL keys, the US still has a fairly strong "fruit of the poison tree" doctrine: any information the government happened to obtain on other users would be invalid for prosecution because it wouldn't be covered by their search warrant."

Which is why the government uses "parallel construction" to get around this restriction. And because the original source of the evidence remains classified, nobody can say for sure why the defendent was randomly stopped on the highway.

This situation exemplifies a type of conundrum: conditions or goals X and Y are incompatible; they cannot coexist. Persons A and B observe this fact, and A concludes "Therefore X must be sacrificed to protect Y" and B concludes "Therefore Y must be sacrificed to protect X".

Your argument starts with the premise that the government is always entitled to data on particular individuals being investigated, and all other values must always be sacrificed to that end. Your review of the costs imposed, however, recognizes only the wiretapping of "every other user".

There is also an additional price paid, which is even more significant and unfortunately not recognized in your argument nor even in Leveson's arguments in the case. The SSL private key is not only for encryption, it also is designed to authenticate the server to the user. Thus, revealing it enables the additional party to impersonate the server owner online. (In this case, the impersonation would have taken the form of a compromised server, no longer under the owner's control, purporting to be the uncompromised server still under the owner's control.)

The evil comes in with the combination of this demand and the gag order. If the server owner could either keep the key secret or warn the users, this evil could not happen - but when both are prohibited, he is forced to enable the third party to lie to the users and make his server a fraud.

Accordingly, my view is that one of these things must yield - either the secret key demands or the gag orders. This is a higher social value than the wiretapping of persons alleged to be suspected of crimes ("alleged" because the secrecy of the process prevents the citizens verifying that the government has any legitimate grounds at all).

Regardless of "fruit of poison tree" laws, information known is hard to unknow, and it wouldn't be surprising if information leaked to others could be used to lead hounds to foxes via different paths.

Indeed: what they routinely do in those cases is take some otherwise-ignorant agent, give them a little advice like "hey, you really should check out some stuff in this area" (nudge-nudge/wink-wink) and have him "rediscover" this information. Then they tell the court that it was Obtained Through That Agent's Normal Ordinary Investigations. "Parallell construction" aka "intelligence laundering".

https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intel...

I have not reviewed the documents in question, so forgive me if I'm wasting your time, but I suspect it was not, in fact, a warrant. Generally requests for so-called 'metadata' don't require the same amount of supporting evidence as search warrants (the theory being that you shouldn't have an expectation of privacy for that data).

Lavabit was a service that explicitly provided a secure and private email to its paying customers. In my opinion, an expectation of privacy _did_ in fact exist for its user's 'metadata'.

I don't mean to be mean or rude, but yes, you are wasting our time. It was, in fact, a warrant.

Surely there must have been a way to have Levison decrypt that users account that would have been satisfactory to the government. I agree that him extracting the information himself isn't a solution, but surely there's a way to do it properly.

The solution isn't either of the extremes, 1) Give access to all Lavabit users or 2) Refuse to comply with a legal warrent, it's somewhere in the middle.

I think you might make the piece of software reviewed by a digital forensics and make it somehow sign the captured document. It might stand in court.

> the US still has a fairly strong "fruit of the poison tree" doctrine: any information the government happened to obtain on other users would be invalid for prosecution because it wouldn't be covered by their search warrant.

After everything we've seen from the Snowden leaks until now, do you honestly still believe this? Parallel construction? Hello??

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