ISTM the thread has gone off the rails. Let’s return to Lavabit. Reading the Guardian article linked in the OP, plus the Wired and Democracy Now articles linked by others, it appears there are two issues. First, is Lavabit appropriately subject to a warrant requiring it to cooperate with a search which, in effect, undermines its raison d’etre, i.e., providing a secure email service? Second, is Lavabit appropriately prohibited from disclosing the nature of the warrant and its grounds for objecting thereto?
The answer to the first question must be yes. Whether the warrant is valid may be contested (by the target, after the fact), but that Lavabit is subject to warrants even it does not deny.
The answer to the second question should be the subject of the thread - it’s the First Amendment issue - but precious few seem to be interested. The problem is that, even assuming the procedure is problematic, how else could we proceed? Folks naturally assume their telephone conservations are private, yet we permit wiretaps (with probable cause). Should phone companies be allowed to tell their customers of the wiretaps? For a long time, the answer has been “no.” Folks naturally assume their bank records are private, yet we permit the authorities to review same (with probable cause). Should banks be allowed to tell their customers of said review? For a long time, the answer has been “no.” To do otherwise, in either case, would undermine the investigation. Lavabit’s situation is no different, legally. It’s a third party. Its privacy interests aren’t implicated. Rather, the main thing implicated is its business interest in providing a secure email service immune from warrants, which it does not have.
I will mention that I’m strongly liberal on Fourth Amendment and surveillance issues. I believe the NSA programs disclosed by Snowden, for example, are (or at least should be) illegal. Nonetheless, IMHO, Lavabit is “crying wolf” here. Warrants based on probable cause are are a different kettle of fish from general data collection. One can recognize the problems with the latter while acknowledging the validity of the former.
Er, no. The correct analogous questions are: Should phone companies be allowed to tell their customers that a wiretap might possibly be placed on a line? Should banks be allowed to tell their customers that the government may decide to review their accounts?
The Patriot Act does not authorize the NSA to collect and store all the online data of everyone in North America. And parts of Europe. And South America. And wherever else. Not that said authorization is needed, obviously, but in an academic sense.
What amuses me most about these types of scandals, and it seems to happen every time without fail, is there’s always people saying “sure, they’re doing A…but not B!” Then we find out they’re doing B. “Sure, they’re doing A and B, everyone knew that…but not C!” Do these people literally work in said departments and does this count as OT, or do they have no working memory? It’s especially ludicrous in this case because Snowden and Greenwald have said they will continue releasing juicier material. And they just released the XKeyscore stuff like 2 weeks ago. It’s like playing chicken with a brick wall.
To have to state that he couldn’t answer the question in an open session would itself be tantamount to answering it, since he wouldn’t answer that way if he had no knowledge of any such classified programs. And that would be unlawful dissemination of classified information. The Congressman remains guilty of entrapment.
Revealing that the head of the NSA is aware of secret programs is disclosure of classified information?? Is that the modern version of the joke about the guy who wrote “DICTATORNAME$ is an idiot!” on a wall and got arrested for revealing a state secret?
(Obviously, the answer “I can’t discuss that in open session” applies in any case whether or not Clapper knows anything relevant to the question. The alternative evokes another old joke: “Did you carry on an affair with Miss Sleazyslut in Miami?” “No.” “Did you carry on an affair with Miss Sleazyslut in Phoenix?” “No.” “Did you carry on an affair with Miss Sleazyslut in Chicago?” “I respectfully decline to answer on advice of counsel.”)
When you’re at the bottom of a hole, stop digging. That goes double if it’s the same hole a waistcoated white rabbit jumped into in a desperate attempt to avoid showing up late.
Fair enough. But we don’t have any reason to believe Lavabit was prohibited from making a similar general disclosure. Frankly, I’d be surprised if one wasn’t already included in its user agreement, given that it had complied with two dozen subpoenas in the past ten years (according to the Democracy Now interview). Indeed, to my recollection, every online privacy policy I’ve ever read included such a disclosure.
Reading between the lines, what appears to have been different about the order inspiring Lavabit to shut down was that, for the first time, the authorities were going to be able to review content and/or capture passwords, where hitherto they had gotten only “envelope” information. (To be clear, this is surmise, but plausible based on the three articles mentioned above.) It’s a tough call whether Lavabit should have been permitted to make a specific disclosure, especially in the context of an actual investigation, but I’m not surprised the authorities (and apparently the court) said “no.”
Notably, Lavabit has since disclosed this vulnerability (without giving details), so that horse is out of the barn. What it really wants, seemingly, is to be able to go into details to rouse public support for the proposition that a secure email service should be immune from warrants reaching content and/or passwords (thereby enabling Lavabit and others to resume service protected by such an immunity). That’s an interesting and difficult First Amendment question, even assuming as I do that Lavabit doesn’t have a snowball’s chance in hell of winning the warrants issue. judicially or legislatively.