I believe it is very telling that a pro-privacy company, a company that has integrity and wants to honor the commitments it has made to their customers, is now a "anti-government" company...
I see a lot of comments about how "good" this analysis is, to me it seems very weak, and only "good" if you believe the government should be allowed to violate the 4th amendment, should be allowed to obtain any information from anyone at any time, and should be allowed to get SSL Keys from service providers, without disclosing this to the Certificate Authorities and violation of all security agreements with said CA's.
If you're very much a "pro" government person then I can see how this "analysis" would meet with your approval. To me it looks like pro-government biased drivel
I think you are missing the point. The analysis just says that you can't get an exception from the subpoena power by just claiming "but the whole point of my business is providing protection from it!".
A legal analysis like this is not too concerned with the specifics of a case because otherwise you couldn't have broad judicial principles at play.
That is to say, even if you think the government request was outrageous, Kerr's analysis simply says that yes, there's a long history of the right of the 'people' (here represented by the grand jury) to ask for information even if in the process the dignity or business of the person/institution the government is requesting the information from is damaged.
Lavabit needs to make a good case within those legal boundaries (which Kerr says is difficult) or try to change those boundaries.
My impression, as someone who is not a lawyer, is that much of what gets posted to the volokh conspiracy is "pro-process."
I think it is entirely reasonable to analyze the situation from the perspective of the law, but it seems like underlying their analysis is that the law is more than just a tool, that it is itself not subject to question. I can understand that from a functional perspective. Challenging the law itself, especially long established law (even if it is being applied to new situations) is a very hard task. But too often (at least for my taste) the writers there seem to bleed that over into the law having some sort of unstated moral stature beyond its utilitarian nature.
Volokh is not a philosophy site for people to opine about morality. It's a site about law, courts, and lawsuits. These things are all about process. Even when applied to new situations, the job of courts is to implement solutions consisting with existing law and legal norms, not to stray from the law to implement what they see as the more "moral" outcome.
Volokh is not a philosophy site for people to opine about morality.
Exactly my criticism. There is an underlying current of morality at that site and it seems to be firmly anchored in process. They need to exercise editorial control to eliminate that moralizing, just because it is subtle doesn't mean it is compatible with a site that aims for an analysis of process rather than a cheer-leading of the current process.
> It's a site about law, courts, and lawsuits. These things are all about process.
Reading Orin Kerr is akin to reading someone critique the actions of the principals in a waterboarding without critiquing the rightness or wrongness of waterboarding itself.
There's a creepy overtone to that kind of commentary.
This comment perfectly encapsulates everything that is horrible about legal discussions on HN: they are anti-intellectual, in the sense that they penalize knowledge or understanding insofar as such understanding complicates some poorly-stated valence issue (most often "the government should honor everybody's right to privacy"). It's not that the angry HN commenter has a carefully-considered (or even specific) complaint about Orin Kerr†. Rather, the angry HN commenter is angry that anyone has taken the time to understand the legal issue at all, instead of simply joining them in baying at the moon.
You should be embarrassed to argue this way. You should want to first understand the issues that are at play, and then figure out how your principles engage with those issues. You obviously shouldn't be trying to dismiss dense sources of information that you clearly didn't already have access to by making allusions to torture. But you do anyways, as do many on HN, adding no value, no original insights, no new information, not even a meaningful criticism of someone else's insight or information --- just, "new information that doesn't fit my worldview: BAD".
I've been here long enough to know that you're getting upvoted for comments like these, hopping from thread to thread shouting down anyone who fails to scoop out their eyeballs, pick up the accursed panflute or vile drum, and dance idiotically around the formless confusion of whatever issue you think you're advocating for. Just know, the same people upvoting you for poisoning threads are also the ones upvoting the incomprehensible douchebags who snark about "getting their side project acquired next time they get a job offer". You're two sides of the same debased coin.
† You can, once in a blue moon, find a carefully considered criticism of Orin Kerr on HN, but they've uniformly come from people on HN with law degrees and are thus obviously suspicious.
I see a lot of comments about how "good" this analysis is, to me it seems very weak, and only "good" if you believe the government should be allowed to violate the 4th amendment, should be allowed to obtain any information from anyone at any time, and should be allowed to get SSL Keys from service providers, without disclosing this to the Certificate Authorities and violation of all security agreements with said CA's.
If you're very much a "pro" government person then I can see how this "analysis" would meet with your approval. To me it looks like pro-government biased drivel