It would be absolutely factual. There's a difference between "we could build x, given months of engineering effort, possibly including outside experts" and "we can do x in response to a court order in our current system, on demand."
There is no prior requirement for an email provider to be CALEA compliant, so there doesn't need to be a particular LI function built into the system.
>"we could build x, given months of engineering effort, possibly including outside experts" and "we can do x in response to a court order in our current system, on demand."
That sounds almost like a solicitation for work, and I suspect that is the way that others (Google, MS, friendface, et al) replied.
Right, which is why you just answer with "we do not have that facility." Turn over your billing records and other material you do have, but don't turn over anything you don't have, and be unfailingly polite, prompt, and not a dick.
It was kind of game over once the search warrant for key came in, unless the keys were in an HSM. As long as you can prevent the search warrant from being issued, a regular pen register isn't going to be terribly onerous if it doesn't produce useful data due to everything being encrypted. If you don't have a system to do user logging, you can honestly respond "we do not have records of messages sent through our system". I don't know if they can even require you to turn logging on if it's not already on in that case; they could get a warrant for your whole system, possibly, but that's a much higher legal bar, and "fine, it's in fedex billed to USG account" might be a reasonable answer there.
It appears under USA-PATRIOT 216, virtually any information service provider is compelled to assist with a pen register implementation, which is bullshit. Prior to that, you could have not assisted, forcing the LEA to do it themselves, and if you had crypto and no technical ability to turn over the keys, it'd be at worst a shutdown. Now, you probably can be legally compelled to assist fully and subvert anything.
I assumed this stuff only applied to CALEA entities like PSTN, PSTN-interconnected-voip, and broadband ISPs; it appears it is actually patriot and means there's enough legal pretext to essentially always get keys:
1) Any non-CALEA entity probably does NOT have a system which can log every pen trap piece of data desired. If there's even a single thing which your system internally can't provide, LEA could argue that their own pen trap would be more effective, and could compel you to turn over keys to populate their device. They could compel you to generate new keys outside an HSM if you have technical controls to protect your existing keys from disclosure, too, and disguise that as "hsm failure" or something like that. It seems pretty open ended.
A non-charitable view of the entire Lavabit thing is that it was a roundabout way/pretext to compel key disclosure. It doesn't matter if USG uses the keys illegally for something which isn't used in a criminal prosecution; the data in Snowden's mail is of intelligence value where those rules don't apply.
2) Unless Patriot 216 is found unconstitutional, Ladar is fucked, as is the entire US IT/cloud industry. I don't believe in Lavabit's "keys are protected" argument -- the court presumes LEAs are trustworthy, and will accept just restrictions in policy on what they can do with keys. Only eliminating pen registers for "arbitrary Internet services" will work, and that probably won't happen.
> Turn over your billing records and other material you do have, but don't turn over anything you don't have, and be unfailingly polite, prompt, and not a dick.
No, in fact, when dealing with law enforcement you should be as uncooperative as possible. It is in your best interest. The expectation that if we are polite to some adversarial authority then they'll go easier on us seems quite widespread (seems to me it has some deep bio/psychological roots). Unfortunately, it's completely false. The police doesn't care the least bit if you are cooperative, polite, prompt, not a dick... In fact, they are trained to exploit one's urge to be polite, honest and helpful against you.
If law enforcement decides to come after you (for whatever reason), no politeness in the world is going to make them turn around and say: "Gee, what a nice fellow, we're sure sorry we wasted his time." They are there to get you, not to negotiate and make good first impressions. There is absolutely nothing you can say that can help you in any way.
It's different if you're the target of an investigation vs. a service provider. If you're the target, you just have your lawyer give them as little as possible. If you're a service provider, on the advice of your counsel, there is actually a lot of cooperation you're forced to give them. And they have a pretty broad amount of discretion on how much of a hassle to be to a third party service provider.
I've just sped through the court docs so may be recalling incorrectly but the judge says that as far as he's aware no-one has previously been paid to build something to enable pen/test devices
I think the judge is lying. Every telco in the USA has been paid for providing LEOs with call detail records, which are completely equivalent to the output of such a device. I'm sure the bigger telcos like VZN and ATT have been paid development costs as well, which speaks to either ignorance or deceit on the judge's part.
I don't know how the US court system works, but if companies have opposed the orders and have subsequently been paid costs then these court orders are usually "sealed" so the judge wouldn't know of them.
Some companies probably just rolled over and agreed costs directly with the agencies involved.
Historically, pen/trap is much less controversial than the "Room 641A" crap, so even if the legal department examines every request (which isn't true for every telco), nobody fights any of them. This was actually the source of the unfortunate "if the phone company knows who you call it isn't personal information" theory. Each telco treats this as just another line of business, and they send invoices to law enforcement agencies. "Modern" switches are smart enough to track called and calling numbers without the installation of actual old-fashioned "devices", so I wouldn't be surprised to learn that the price of this service has decreased. However, this is such common knowledge in telcos that I'd be shocked to find it isn't common knowledge in courthouses. So, the judge is either ignorant or dishonest.
Almost all providers want to comply with almost all orders, because 1) they generally like being friends with the law and 2) criminals using their service are bad customers, too. So it probably hasn't been an issue in a lot of cases.
There is no prior requirement for an email provider to be CALEA compliant, so there doesn't need to be a particular LI function built into the system.