5 ms·

Fwiw, law prof Orin Kerr doesn't think this is a strong appeal: http://www.volokh.com/2013/10/11/lavabit-challenges-contempt-order/ http://www.volokh.com/2013/1

by mjn 13y ago

Fwiw, law prof Orin Kerr doesn't think this is a strong appeal: http://www.volokh.com/2013/10/11/lavabit-challenges-contempt-order/ http://www.volokh.com/2013/10/11/lavabit-challenges-contempt...

caf 13y ago
In regards to the subpoena power, a point that Kerr doesn't address is that the subpoena power is to compel the production of evidence (as his US v Calandra quote illustrates). In this case, the SSL private key is not itself evidence - it is merely an artifact that the investigators require in order to look for evidence. Is it the equivalent to using a subpoena to force a third party to produce the physical key to a safe in which the investigating authority believes evidence will be found.
- rainsford 13y ago
  I am not a lawyer, but I have a hard time imagining that subpoena power couldn't be used to obtain a physical key necessary to obtain evidence in a physical safe. As long as the goal is production of evidence, even if it's not necessarily directly obtained, it seems like a valid use of a subpoena. A subpoena would be pretty toothless otherwise since it would be relatively easy to avoid, something I doubt the courts would show much support for.
  - talmand 13y ago
    I would imagine it could be found in past cases where such containers requiring a physical key that couldn't/wouldn't be produced were confiscated and opened by whatever other means necessary. If the law is certain the needed evidence is within the container, the lack of a physical key would not stop the attempt to collect that evidence. I'm curious if there are cases of the police requiring a physical key that is in effect a skeleton key. Say, for instance, an apartment manager's master key that opens every door in the building. Having possession of that would mean the police would have access to every apartment in the building regardless of whether the search warrant allows for that or not. That would be similar to having the SSL key in this case, the authorities would have access to everything. Now, in that case, imagine the police department had recently been shown to not be trustworthy enough to have access to a key that opens every door in the building. I think you could see the dilemma here.
    - tedunangst 13y ago
      The police still need a warrant even if your front door is completely unlocked.
      - talmand 13y ago
        That's true, but the rules are different for your home versus a box with a lock on it.
- bradleyjg 13y ago
  FTA: The key itself is not evidence, contraband, fruits, or instrumentalities of crime, Lavabit argues, but is merely a way to get to evidence, contraband, fruits, or instrumentalities of crime. This is a clever argument pressing an undeveloped aspect of Fourth Amendment law, but I don’t think it ultimately works. It’s pretty standard for computer warrants to authorize the seizure of passwords, encryption codes, operating manuals, “and other information necessary to access the computer equipment, storage devices or data.” I haven’t seen a Fourth Amendment challenge to such provisions, but I would think they are okay because they involve instrumentalities of crime. That is, the password or encryption key is part of the tool used to commit the crime, so it is part of the instrumentality of crime and can properly be obtained in a search warrant.
  - lambda 13y ago
    I'm not sure you could reasonably claim that Lavabit's private key is an instrumentality of crime, since Lavabit's private key is in the control of and used by Lavabit, the service provider, not the alleged criminal. This would be like claiming you could seize the entire phone network because someone somewhere used it to commit a crime. Now, you may be able to demand that Lavibit hand over the user's password or encryption keys, if it is able to do so. Those could likely be considered instrumentalities of crime. But handing over Lavabit's own private keys goes beyond that, to something that Lavabit merely uses to keep it's communications private with all of its customers, the people under investigation and everyone else. Asking for Lavabit's private key is like asking for the master key to let you into any room the building, when only one tenant is actually under investigation. It goes beyond what is necessary to investigate the actual case in question.
    - bradleyjg 13y ago
      If the landlord uses identical locks on all the apartment doors, he can't turn around and complain that turning over the key to the apartment being investigated would open all the doors. As for the instrumentality of the crime, even though it's Lavabit's SSL key the government's contention is that Snowden made use of it in his alleged crimes (by for example encrypting leaked data with the public half of the key for transmission to lavabit's web to email gateway, where it would ultimately be decrypted by lavabit using the private key, and then emailed to the a recipient.) Suppose a criminal rented a car and used it as a getaway vehicle and then returned it. The police could get access to the car for forensic evidence from the rental company, notwithstanding the fact that the car belonged to the rental company who was not accused of any crime.
- deleted 13y ago
  [deleted]

by mjn 13y ago

Fwiw, law prof Orin Kerr doesn't think this is a strong appeal: http://www.volokh.com/2013/10/11/lavabit-challenges-contempt-order/ http://www.volokh.com/2013/10/11/lavabit-challenges-contempt...

caf 13y ago

In regards to the subpoena power, a point that Kerr doesn't address is that the subpoena power is to compel the production of evidence (as his US v Calandra quote illustrates). In this case, the SSL private key is not itself evidence - it is merely an artifact that the investigators require in order to look for evidence. Is it the equivalent to using a subpoena to force a third party to produce the physical key to a safe in which the investigating authority believes evidence will be found.

rainsford 13y ago
I am not a lawyer, but I have a hard time imagining that subpoena power couldn't be used to obtain a physical key necessary to obtain evidence in a physical safe. As long as the goal is production of evidence, even if it's not necessarily directly obtained, it seems like a valid use of a subpoena. A subpoena would be pretty toothless otherwise since it would be relatively easy to avoid, something I doubt the courts would show much support for.
- talmand 13y ago
  I would imagine it could be found in past cases where such containers requiring a physical key that couldn't/wouldn't be produced were confiscated and opened by whatever other means necessary. If the law is certain the needed evidence is within the container, the lack of a physical key would not stop the attempt to collect that evidence. I'm curious if there are cases of the police requiring a physical key that is in effect a skeleton key. Say, for instance, an apartment manager's master key that opens every door in the building. Having possession of that would mean the police would have access to every apartment in the building regardless of whether the search warrant allows for that or not. That would be similar to having the SSL key in this case, the authorities would have access to everything. Now, in that case, imagine the police department had recently been shown to not be trustworthy enough to have access to a key that opens every door in the building. I think you could see the dilemma here.
  - tedunangst 13y ago
    The police still need a warrant even if your front door is completely unlocked.
    - talmand 13y ago
      That's true, but the rules are different for your home versus a box with a lock on it.
bradleyjg 13y ago
FTA: The key itself is not evidence, contraband, fruits, or instrumentalities of crime, Lavabit argues, but is merely a way to get to evidence, contraband, fruits, or instrumentalities of crime. This is a clever argument pressing an undeveloped aspect of Fourth Amendment law, but I don’t think it ultimately works. It’s pretty standard for computer warrants to authorize the seizure of passwords, encryption codes, operating manuals, “and other information necessary to access the computer equipment, storage devices or data.” I haven’t seen a Fourth Amendment challenge to such provisions, but I would think they are okay because they involve instrumentalities of crime. That is, the password or encryption key is part of the tool used to commit the crime, so it is part of the instrumentality of crime and can properly be obtained in a search warrant.
- lambda 13y ago
  I'm not sure you could reasonably claim that Lavabit's private key is an instrumentality of crime, since Lavabit's private key is in the control of and used by Lavabit, the service provider, not the alleged criminal. This would be like claiming you could seize the entire phone network because someone somewhere used it to commit a crime. Now, you may be able to demand that Lavibit hand over the user's password or encryption keys, if it is able to do so. Those could likely be considered instrumentalities of crime. But handing over Lavabit's own private keys goes beyond that, to something that Lavabit merely uses to keep it's communications private with all of its customers, the people under investigation and everyone else. Asking for Lavabit's private key is like asking for the master key to let you into any room the building, when only one tenant is actually under investigation. It goes beyond what is necessary to investigate the actual case in question.
  - bradleyjg 13y ago
    If the landlord uses identical locks on all the apartment doors, he can't turn around and complain that turning over the key to the apartment being investigated would open all the doors. As for the instrumentality of the crime, even though it's Lavabit's SSL key the government's contention is that Snowden made use of it in his alleged crimes (by for example encrypting leaked data with the public half of the key for transmission to lavabit's web to email gateway, where it would ultimately be decrypted by lavabit using the private key, and then emailed to the a recipient.) Suppose a criminal rented a car and used it as a getaway vehicle and then returned it. The police could get access to the car for forensic evidence from the rental company, notwithstanding the fact that the car belonged to the rental company who was not accused of any crime.
deleted 13y ago
[deleted]