> His argument is clearly that people have a right to privacy.
Except there is no right to engage in total privacy. There is a right against unreasonable search and seizure. But that's hardly a right of total privacy.
Maybe his argument is that he thinks people should have a right to total privacy?
> Except there is no right to engage in total privacy.
There is, in practice, an absolute right to privacy. If you combine strong encryption with plausible deniability, you can reliably secure information from law enforcement. There is nothing anyone can do to access it against your will. You can always make the plausible claim the information does not exist and/or is inaccessible to you.
Does asking for a site's private SSL key sound like a reasonable search? I realize "reasonable" is entirely subjective, which is why I don't put much faith in out justice system.
You sound astounded that someone on the receiving side of legal action is trying not to cooperate. Next you'll be stating that him hiring a lawyer is proof of non-cooperation and evidence of guilt.
If you got to do overbroad things every time a defendant was "non-cooperative" it would apply to every single court case.
See my comment here[1]. While I'm not normally a government apologist, from the unsealed court documents, it appears that they did everything by the book here. The original order was for metadata related to a single, specific named account. There were several follow up orders and court proceedings before the request was broadened to turn over the SSL keys.
I'd claim that not producing evidence in response to a lawful subpoena and court order is proof that he's guilty of contempt of court[2].
[2] There are lawful ways to resist such an orders - you file a motion to oppose in the case. While I don't have access to PACER to confirm that no such motion was filed, the judge's orders have no mention of such a motion in the established facts.
dlgeek explains the entire situation better than I. However, I wanted to apologize for poor wording. It wasn't that he wasn't trying to cooperate. Rather, than it seemed like he was trying to be unreasonably uncooperative to what was a reasonable and lawful order (starting with the information/traffic of a single individual). The distinction is important, I think.
Putting aside the vague term reasonable for a moment, we should really examine that the fourth amendment states "... and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
I think we need to analyze "persons" or "things" in an electronic light... could things be roughly analogous to "a mailbox" and could persons be "a person's electronic mail account"?
You can't just state on your warrant "I want all of the things!", you must stipulate that "I want Ben's mail account and logs of all his activity on your service." If there is no way of extracting that information without compromising everyone else's privacy, does the law state "in cases like this, the constitution should be violated to satisfy the terms of the warrant"? or does the law state "the terms of this warrant cannot be enforced without breaching the constitutional rights of at least one other party and thus is illegal"?
It's my guess (and I'd like to emphasise the word guess as I really have no idea), that any reasonable judge (that wasn't on the payroll of the NSA or FISA court) would deem this is an illegal search warrant because it's in violation of every other Lavabit user's fourth amendment rights.
Anyway, that's all by-the-by. The judge who is attempting to enforce this ridiculous debacle (and I use the word ridiculous in the sense of hilarity because every new development is a source of mirth) clearly doesn't give a shit about anyone's fourth amendment rights, and he's pissed at Levison's continued contempt of court so he's stamping his feet like a spoiled little four year old who's just been told he's not getting Dunkin' Donuts for dinner, while getting a schooled by an internet Hero... with a capital H.
Except there is no right to engage in total privacy. There is a right against unreasonable search and seizure. But that's hardly a right of total privacy.
Maybe his argument is that he thinks people should have a right to total privacy?