[Cryptography] Lavabit's and Snowden's Solos

[Ray Dillinger]

On 03/05/2016 03:17 AM, John Young wrote:
> Lavabit's brief for Apple has the gutsiest skin in the game, going
> solo, no joining a pack. None of the fattest of strutting corporate
> cats rushed to defend Lavabit against absence of FBI
> corporate-coddling, Congress-stroking, corraling the frightened herd
> for taking down mavericks like Lavabit and Snowden.
> 
> https://cryptome.org/2016/03/usg-apple-102-105.pdf
> 

I think this case actually has a lot to do with the Lavabit episode.

Lavabit received an order asking IIUI to enable the FBI to access a
*single* account. The operator, fearing that their motive might be
persecution and vengeance rather than prosecution and justice, took less
than 48 hours to consult with an attorney. Consulting with an attorney,
as a constitutionally guaranteed right, seems reasonable to me.

He may or may not have voluntarily provided access to that account -
we'll never know, because by the time he had finished consulting an
attorney the FBI had, apparently because of his less than instant
compliance, made a completely intolerable demand instead for the keys to
the entire site. That would have enabled covert, real-time access to the
communications of subscribers who were specifically purchasing the
service of privacy. Deprived of the ability to sell what his subscribers
were buying, he shut the business down rather than engage in fraud or
the provision of pretended services.

Then as now, the FBI made a demand for access so broad in scope,
burdensome to provide, or contrary to the basic principles of the party
from whom it was demanded, as to be offensive.

The major distinction as far as I can tell is that Apple has the money
to hire a herd of lawyers and fight it in court, and Lavabit didn't.

If Lavabit had fought the demand in court and lost (very likely given
its meager legal budget and the infamy of the single account that the
FBI originally demanded access to) it would have established a precedent
which the FBI would now be trying to leverage in further cases. So the
decision by Lavabit to shut down rather than have a court battle was
probably the only available way to avoid the creation of a harmful
precedent.  Leaving the arena means you don't win, but it also means
denying victory to your opponent.

In much the same way the FBI now seeks a precedent in the Apple case,
and in much the same way, compelling compliance with their order seems
more important to them than the data from the single instance that the
case is ostensibly about.

So I have to wonder if an attempt to replace the precedent they planned
to get from a Lavabit case, which they failed to obtain because it never
came to court, may be part of what motivates the FBI in its battle over
the Apple case.

Of course if they had that Lavabit precedent, they would certainly be
using it against Apple right now.

				Bear

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