Privacy takes a beating in the FBI’s kangaroo court

The cyber-privacy wars continue, but it still looks like we’re losing and losing huge. Two steps forward followed by sucker punches to the face, gut, and crotch resulting in 15 steps back. I think that’s about right, and I’ve really run out of contemptuous snarky comments here other than … wow.

In Privacy Wars Episode 3,457: A New Hope, Silent Circle just raised $30 million in VC funding. These are the guys working on building NSA-frustrating and publicly available encryption as well as the Blackphone Batman keeps in his utility belt, so investors think they’re a pretty good bet since people are a little tired of every hack-nerd and cyber-spy setting up shop in their shorts. The bucks come from Cain Capital and Ross Perot Jr., who must be getting a late start ticking off his dad.

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Silent Circle is also one of two founding members of the dramatically named Dark Mail Technical Alliance. The other one is Lavabit, a fairly young email provider that was naively founded on the principal that we deserve our digital privacy. It foolishly sought to enforce this maxim by offering features like asymmetric encryption. Tellingly, its most famous customer was Edward Snowden.

Those are the two not-so-recent steps forward for us. Now the bad news.

In Privacy Wars episode 3,458: The Empire Strikes Back, it turns out that the Dark Mail Technical Alliance is actually a solo operation because the federales forced Lavabit to shut down last August.

The story starts with some FBI agents showing up at Lavabit’s offices one fine morning (right after it was suggested that Snowden had been a customer — what an amazing coincidence) without even the basic decency of bringing coffee and donuts. They demanded that the company allow it to install surveillance equipment on its network. Hey, why not? The FBI then also presented a court order demanding that Lavabit fork over its private encryption keys so it could access minor information like all customer passwords. Lavabit dug its heels in at that point and told the Feebs it wasn’t going to comply until it got legal advice.

But the FBI apparently anticipated that move because it immediately fired off a machine-gun blast of legal documents, including an eventual summons to appear in a Virginia court in 48 hours even though Lavabit operations were located in Texas. Lavabit’s founder, Ladar Levison, claims he spent the first two weeks trying to find an attorney who understood both privacy and technology well enough to represent him (and we all know how easy it is to find a tech-savvy lawyer) only to find that when he got to Virginia, the court denied him the right to counsel since the government was only after his property not his personal freedom. He wound up facing the judge alone. Wow.

Once standing alone in court, Levison discovered that the government had merrily pulled the ole switcheroo and swapped out the encryption key demand for a straight search warrant and also set up a new court date. Levison tried to hire a small Virginia law firm to help him, but according to Levison, they were immediately castrated like harem guards because the judge forbade them to consult outside experts concerning both the statutes as well as the technology involved in the case. It wouldn’t even deliver transcripts of Levison’s first court appearance until two months later. Wow.

Not content with that low blow, another judge took a break from golf and kitten chewing long enough to enter a contempt charge against Levison without holding a hearing and ignoring his attorney’s request to argue the charge. Since the hearing didn’t happen, Levison thinks the appellate court will simply say his right to counsel was waived and he’ll be … well, screwed to put it mildly. Wow.

Levison has been fighting his legal battle — only some of which has been detailed here — ever since, but he published an open letter yesterday that finally admits defeat. Basically, our Uncle Sam stymied every legal course Lavabit had to ensure its customers’ email privacy.

In fact, the prosecution (a strange term, considering this wasn’t a criminal case until the end) said Lavabit’s customers had no expectation of privacy even though that was the company’s whole focus and, supposedly, our God-given right. It claimed that current technology doesn’t allow user-specific information to be identified until all data flowing in and out of Lavabit’s servers had been decrypted and analyzed. It posited that because computers were doing the analysis, not people, it wasn’t subject to normal search and seizure laws.

The kitten chewers agreed. Faced with being unable to maintain his company’s privacy promise, Levison felt he had no choice but to shut his doors, and despite a brave battle, he’s not going to be allowed to open them again. Wow.

So if they can’t get you to knuckle under, they just drive you out of business by deciding they’re simply above the law, and if we don’t like it, well who cares, and here’s a vicious legal smack down for even trying to fight back. There’s your sucker punch and 15 steps back. Again, all I have is … wow.

This article, “Privacy takes a beating in the FBI’s kangaroo court,” was originally published at InfoWorld.com. Follow the crazy twists and turns of the tech industry with Robert X. Cringely’s Notes from the Field blog, follow Cringely on Twitter, and subscribe to Cringely’s Notes from the Underground newsletter.