April 2014 | Status: First Draft
Mr. Ladar Levison’s somewhat encrypted email service, Lavabit — variously reputed to have had a membership of somewhere between 40,000 and 410,000 before it abruptly closed its doors in May 2013 — seems to have lost its final battle against the U.S. government today.
Mostly because, we are forced to conclude, Levison acted so strangely and unprofessionally in the immediate aftermath of the original subpoena, unnecessarily pissing off the almighty Feds in the high-tension environment following the Snowden disclosures.
This is bad for poor Mr. Levison, bad for Snowden, bad for liberty, bad for human rights, and… also very bad for the good side’s PR department in this highly polarized battleground for internet freedom. As the lawsuit dragged on and brought to light many of Levison’s childish blunders, support for his cause has dwindled rapidly, and now is nowhere to be found.
Why does every landmark case involving online privacy have to involve incompetent, unsavory, or sometimes even downright despicable people (e.g. child pornographers) on the defense side?
In order to force the legal system to take a serious look at the core issues — such as whether the Feds can compel a company to produce its private keys, and whether they can compel a man to produce the password to his encrypted drive — instead of getting distracted by all sorts of confounding factors, the case needs to have a competent defendant and even more competent counsel who make no serious mistakes throughout the course of the trial. That’s the only way we’re going to get a clear, decisive precedent, because otherwise procedural blunders will dominate the legal result.
Levison’s failure to contact the EFF or ACLU the moment he received the first pen/trap order has led the entire community of concerned citizens to waste a lot of time and resources litigating mostly peripheral issues, and probably caused a lot more hardship for Levison himself than he ever needed to get into. Meanwhile, we still don’t have a clear idea of what the U.S. legal system thinks about forcing the disclosure of TLS keys.
Of course, hindsight is 20/20, so maybe there are adequate explanations for why he thought it was a good idea to wave a middle finger in the face of the DOJ. But in the grand scheme of things in the battle for internet freedom, I think we just missed a golden opportunity to get the courts to tackle some serious constitutional issues. Just like in all those other contempt cases where the encrypted drive in question obvious contained child pornography, or all those other surveillance cases where the defendant was a heavy uploader of copyrighted material.
Assholes, pirates, and child pornographers have rights, of course, but they usually don’t make good mascots for a worthy cause.
Well, at least this case served as a good kick in the butt to encourage everyone to use forward secrecy, so I guess it wasn’t an entirely useless exercise.