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The government shouldn't have the right to COMPEL someone to hand over data. They should have the right to ASK and they should have the right to complain public

The government shouldn't have the right to COMPEL someone to hand over data. They should have the right to ASK and they should have the right to complain publicly that AT&T or Google isn't cooperating with a specific case, but as communications get more international it is silly to suggest that they have the ability to intercept every communication. This way there is some actual balance to this madness. If Google refuses to help track down Osama, then the government can announce this, and people will be outraged at Google. Snowden is a different matter, many people don't believe he did anything wrong, so it is hard to take the government's side of things.

mikeyouse 13y ago
The US Government absolutely has the right (under court order) to compel a US-based company to hand over data about a US citizen. Do you really think that if Google had access to OBL's whereabouts and wouldn't comply with court orders to provide the information, that the acceptable outcome would be the CIA whining about Google on TV? If Google refuses to help track down Osama, then the government can announce this, and people will be outraged at Google. Snowden is a different matter, many people don't believe he did anything wrong, so it is hard to take the government's side of things. Are you really suggesting that our laws should be based on public opinion?
- ataggart 13y ago
  Compare this: >The government shouldn't have the right... to this: >The US Government absolutely has the right... You can't refute a normative claim with a positive claim. ---- >Are you really suggesting that our laws should be based on public opinion? I think he's suggesting that violence (which ultimately backs state compulsion) is not an appropriate response to a non-violent act (declining to hand over keys).
  - mikeyouse 13y ago
    I think he's suggesting that violence (which ultimately backs state compulsion) is not an appropriate response to a non-violent act (declining to hand over keys). I'm sure that's what he is saying, but it's an intellectually lazy claim. If you only look at the scope of the demand (hand over the keys or we will put you in jail), it may seem like an escalation of force by the government. The real normative claim being made is that contempt of court charges are unconstitutional. Which is patently absurd. The threat of force exists because through contempt, 'non-violent' dissenters can enable further violence.
- malandrew 13y ago
  If giving up Osama Bin Ladin's location also required giving up the privacy of everyone that uses Google to the CIA, then I would say that act would become OBL crowning achievement. He already succeeded in destroying an icon of our economy and taking thousands of lives with it. Are you really suggesting that its acceptable for us to debase one of the basic human rights that are the foundation of this country in order to capture one man? This is exactly what is happening with Lavabit. I don't think any law should be based on public opinion, but when the interpretation of a law is potentially unconstitutional, then that interpretation becomes a matter of public opinion that should be decided in the US Supreme Court.
  - mikeyouse 13y ago
    Lavabit had the option of providing access to only Snowden's account. They declined that option. The FBI then escalated their demand to get the data they were entitled to. This 'unconstitutional' demand from the FBI was Lababit's creation by being obstinate to begin with. Did they just expect the government to give up after Lavabit told them they couldn't access that data?
    - ahallock 13y ago
      So let's blame the victim? If only Lavabit had capitulated then the poor FBI would not have had to escalate their demands. If only the battered wife had just done what her husband wanted, he wouldn't have had to break her nose. The government does not apply the law uniformly. It escalates when it wants to, when it's been embarrassed or slighted. Keep your head down and don't make trouble.
    - kingkilr 13y ago
      The government doesn't get to escalate, that's not how it works. The government has structural, fundamental, limitations on its power: http://alexgaynor.net/2013/oct/02/thoughts-lavabit/ http://alexgaynor.net/2013/oct/02/thoughts-lavabit/
  - beedogs 13y ago
    > Are you really suggesting that its acceptable for us to debase one of the basic human rights that are the foundation of this country in order to capture one man? That ship has already sailed. Take a look at the Boston marathon bombing manhunt if you need any more evidence of how far 'out the window' your fundamental human rights can go, given the right circumstances.
- metaphorm 13y ago
  the rights of the U.S. government are determined by the constitution of the U.S. the 4th amendment of the constitution makes it perfectly clear that the government can only receive a warrant when they can establish probable cause of criminal activity AND that the warrant is specific and particular. no blanket searches.
  - pflats 13y ago
    Unfortunately, precedent holds that intercepting stuff broadcast over the wires is not a search. "In Smith v. Maryland, the Supreme Court held that a pen register is not a search because the "petitioner voluntarily conveyed numerical information to the telephone company." Since the defendant had disclosed the dialed numbers to the telephone company so they could connect his call, he did not have a reasonable expectation of privacy in the numbers he dialed. The court did not distinguish between disclosing the numbers to a human operator or just the automatic equipment used by the telephone company." http://en.wikipedia.org/wiki/Smith_v._Maryland http://en.wikipedia.org/wiki/Smith_v._Maryland
    - erichocean 13y ago
      Unfortunately, precedent holds that… While I can see why lawyers and judges should care about that bit of information, I completely fail to see why the common man should. Bad precedents, destined to be overturned, are created all the time. Even the Supreme Court overturns its own "precedents". So while I agree that info is not completely useless, it's not actually relevant to the question of what the common man should do, because that doesn't change: he should do what's right and just, regardless of the present position of the state.
    - metaphorm 13y ago
      I believe that statute is the reason why Lavabit considered it legal to provide metadata information only. Numbers dialed is a form of metadata. The contents of the call (or email in this case) is another thing entirely. Thats really the basis of the appeal.
    - shawn-furyan 13y ago
pflats 13y ago
I agree that the current status of the pen register (it doesn't constitute a search and thus doesn't require probable cause, only that it's "likely" the data will be relevant) is a bar too low. If it had the same requirements as a search warrant, though, I can't say I register an objection. Beyond that, saying that the government's recourse is to put out a press release that says, "So, we're trying to get into Osama's email, but Google won't let us," is the appropriate way to handle a secret criminal investigation, then I think we'll always disagree.
rayiner 13y ago
You can argue that the government shouldn't have the right to compel someone to hand over data or documents.[1] But the fact is that a broad subpoena power, enabling the government to do precisely that, has been part of American law since before there was a United States. So if you think the government shouldn't have this power, the real question is: how do you change this hundreds of years old practice? [1] You can argue this, but it should be noted that nobody on HN seems to have a problem with the subpoena power when it's say used to subpoena documents from say Enron's accountants.
- prirun 13y ago
  The difference is, Enron was suspected of committing a crime. Lavabit committed no crime. If the government subpoenas an individual for their encryption key, because they have reason to suspect the individual for a crime, it is different than to subpoena an innocent, indirect 3rd party. To me, it's like saying "We don't have enough police to handle this crime. So here - you have to take this gun and help us find the criminal. If you refuse, we throw you in jail." Any service on the Internet could be used by all types of people, for good and bad purposes, just like a hammer can be used to drive nails or kill someone. You don't throw a hammer manufacturer in jail when someone uses a hammer to kill someone. Lavabit is an innocent 3rd party in all of this, regardless of how their computer system was designed.

mikeyouse 13y ago

The US Government absolutely has the right (under court order) to compel a US-based company to hand over data about a US citizen. Do you really think that if Google had access to OBL's whereabouts and wouldn't comply with court orders to provide the information, that the acceptable outcome would be the CIA whining about Google on TV? If Google refuses to help track down Osama, then the government can announce this, and people will be outraged at Google. Snowden is a different matter, many people don't believe he did anything wrong, so it is hard to take the government's side of things. Are you really suggesting that our laws should be based on public opinion?

ataggart 13y ago
Compare this: >The government shouldn't have the right... to this: >The US Government absolutely has the right... You can't refute a normative claim with a positive claim. ---- >Are you really suggesting that our laws should be based on public opinion? I think he's suggesting that violence (which ultimately backs state compulsion) is not an appropriate response to a non-violent act (declining to hand over keys).
- mikeyouse 13y ago
  I think he's suggesting that violence (which ultimately backs state compulsion) is not an appropriate response to a non-violent act (declining to hand over keys). I'm sure that's what he is saying, but it's an intellectually lazy claim. If you only look at the scope of the demand (hand over the keys or we will put you in jail), it may seem like an escalation of force by the government. The real normative claim being made is that contempt of court charges are unconstitutional. Which is patently absurd. The threat of force exists because through contempt, 'non-violent' dissenters can enable further violence.
malandrew 13y ago
If giving up Osama Bin Ladin's location also required giving up the privacy of everyone that uses Google to the CIA, then I would say that act would become OBL crowning achievement. He already succeeded in destroying an icon of our economy and taking thousands of lives with it. Are you really suggesting that its acceptable for us to debase one of the basic human rights that are the foundation of this country in order to capture one man? This is exactly what is happening with Lavabit. I don't think any law should be based on public opinion, but when the interpretation of a law is potentially unconstitutional, then that interpretation becomes a matter of public opinion that should be decided in the US Supreme Court.
- mikeyouse 13y ago
  Lavabit had the option of providing access to only Snowden's account. They declined that option. The FBI then escalated their demand to get the data they were entitled to. This 'unconstitutional' demand from the FBI was Lababit's creation by being obstinate to begin with. Did they just expect the government to give up after Lavabit told them they couldn't access that data?
  - ahallock 13y ago
    So let's blame the victim? If only Lavabit had capitulated then the poor FBI would not have had to escalate their demands. If only the battered wife had just done what her husband wanted, he wouldn't have had to break her nose. The government does not apply the law uniformly. It escalates when it wants to, when it's been embarrassed or slighted. Keep your head down and don't make trouble.
  - kingkilr 13y ago
    The government doesn't get to escalate, that's not how it works. The government has structural, fundamental, limitations on its power: http://alexgaynor.net/2013/oct/02/thoughts-lavabit/ http://alexgaynor.net/2013/oct/02/thoughts-lavabit/
- beedogs 13y ago
  > Are you really suggesting that its acceptable for us to debase one of the basic human rights that are the foundation of this country in order to capture one man? That ship has already sailed. Take a look at the Boston marathon bombing manhunt if you need any more evidence of how far 'out the window' your fundamental human rights can go, given the right circumstances.
metaphorm 13y ago
the rights of the U.S. government are determined by the constitution of the U.S. the 4th amendment of the constitution makes it perfectly clear that the government can only receive a warrant when they can establish probable cause of criminal activity AND that the warrant is specific and particular. no blanket searches.
- pflats 13y ago
  Unfortunately, precedent holds that intercepting stuff broadcast over the wires is not a search. "In Smith v. Maryland, the Supreme Court held that a pen register is not a search because the "petitioner voluntarily conveyed numerical information to the telephone company." Since the defendant had disclosed the dialed numbers to the telephone company so they could connect his call, he did not have a reasonable expectation of privacy in the numbers he dialed. The court did not distinguish between disclosing the numbers to a human operator or just the automatic equipment used by the telephone company." http://en.wikipedia.org/wiki/Smith_v._Maryland http://en.wikipedia.org/wiki/Smith_v._Maryland
  - erichocean 13y ago
    Unfortunately, precedent holds that… While I can see why lawyers and judges should care about that bit of information, I completely fail to see why the common man should. Bad precedents, destined to be overturned, are created all the time. Even the Supreme Court overturns its own "precedents". So while I agree that info is not completely useless, it's not actually relevant to the question of what the common man should do, because that doesn't change: he should do what's right and just, regardless of the present position of the state.
  - metaphorm 13y ago
    I believe that statute is the reason why Lavabit considered it legal to provide metadata information only. Numbers dialed is a form of metadata. The contents of the call (or email in this case) is another thing entirely. Thats really the basis of the appeal.
  - shawn-furyan 13y ago

pflats 13y ago

I agree that the current status of the pen register (it doesn't constitute a search and thus doesn't require probable cause, only that it's "likely" the data will be relevant) is a bar too low. If it had the same requirements as a search warrant, though, I can't say I register an objection. Beyond that, saying that the government's recourse is to put out a press release that says, "So, we're trying to get into Osama's email, but Google won't let us," is the appropriate way to handle a secret criminal investigation, then I think we'll always disagree.

rayiner 13y ago

You can argue that the government shouldn't have the right to compel someone to hand over data or documents.[1] But the fact is that a broad subpoena power, enabling the government to do precisely that, has been part of American law since before there was a United States. So if you think the government shouldn't have this power, the real question is: how do you change this hundreds of years old practice? [1] You can argue this, but it should be noted that nobody on HN seems to have a problem with the subpoena power when it's say used to subpoena documents from say Enron's accountants.

prirun 13y ago
The difference is, Enron was suspected of committing a crime. Lavabit committed no crime. If the government subpoenas an individual for their encryption key, because they have reason to suspect the individual for a crime, it is different than to subpoena an innocent, indirect 3rd party. To me, it's like saying "We don't have enough police to handle this crime. So here - you have to take this gun and help us find the criminal. If you refuse, we throw you in jail." Any service on the Internet could be used by all types of people, for good and bad purposes, just like a hammer can be used to drive nails or kill someone. You don't throw a hammer manufacturer in jail when someone uses a hammer to kill someone. Lavabit is an innocent 3rd party in all of this, regardless of how their computer system was designed.