[00:00.000 --> 00:03.620]  Without further ado, this is our 11 a.m. talk here in the Manning Room at HOPE X.
[00:07.720 --> 00:09.860]  And this one is Ethical Questions.
[00:10.440 --> 00:14.340]  And it's going to be Declan... See, I can't even read anymore.
[00:15.880 --> 00:17.800]  Well, you were confused and thought this was... Because it's Sunday.
[00:18.360 --> 00:21.080]  You thought this was a biotech hacking panel, I think.
[00:21.420 --> 00:21.820]  And Nick.
[00:22.340 --> 00:22.960]  Welcome, guys.
[00:30.790 --> 00:32.630]  Okay, thank you, folks, for joining us today.
[00:32.730 --> 00:37.350]  I should say, by way of full disclosure, that my bio on the HOPE website is a little out of date.
[00:37.530 --> 00:42.270]  I left CNET slash CBS a few months ago to found a news-related startup.
[00:42.490 --> 00:49.430]  You can find out more about it and sign up for the beta at recent.io, R-E-C-E-N-T.io.
[00:50.290 --> 00:59.450]  So we're here this morning not to denounce illegal, unwarranted, probably unconstitutional government surveillance.
[00:59.690 --> 01:00.570]  I mean, we know the arguments.
[01:00.810 --> 01:01.930]  We've been there, done that.
[01:01.930 --> 01:04.810]  And all of you should have been in Edward Snowden's talk yesterday.
[01:05.190 --> 01:14.930]  Anyway, instead we're going to try to address a different and maybe more difficult point, which is how a service provider can conduct itself ethically.
[01:15.510 --> 01:18.230]  And by service provider, I mean this is a pretty general term.
[01:18.410 --> 01:20.230]  We're trying to be very inclusive here.
[01:21.070 --> 01:26.630]  Email, IM, chat, social networks, photo sharing, ISPs, pretty much anything.
[01:27.270 --> 01:40.770]  So I think it's fair to say that it's better to answer these questions early on before the feds show up with a court order of dubious constitutionality, demanding something that you may be unwilling or, worse yet, unable to provide.
[01:41.310 --> 01:57.770]  So today we have with us immediately to my left, your right, Nicholas Merrill, who with the ACLU successfully challenged the portion of the Patriot Act that expanded or rewrote the rules for national security letters, including a gag order that the recipients always are delighted to receive.
[01:58.070 --> 02:02.990]  And we have with us Ladara Levinson, who ran Lavabit.
[02:03.730 --> 02:05.290]  Your reputation precedes you.
[02:06.550 --> 02:14.130]  Which for folks of you who are not clapping, and probably should have been for both of them, it was used by Edward Snowden, an email provider.
[02:14.130 --> 02:21.670]  The feds last summer obtained a search warrant, demanding that Lavabit turn over private SSL keys that protected web traffic to the site.
[02:22.030 --> 02:27.270]  In response, Ladara shut down Lavabit, even though he had spent the last previous ten years building it.
[02:27.650 --> 02:29.990]  So these two gentlemen are privacy heroes.
[02:30.250 --> 02:35.910]  They have a strong sense of what's right and wrong for service providers to do, and I'm delighted that they're here today.
[02:37.670 --> 02:50.010]  So, we wouldn't be having this session here at HOPE Award for Edward Snowden, but it's been over a year since Edward Snowden's disclosures started to appear in The Guardian, and The Washington Post, and elsewhere.
[02:50.250 --> 02:51.370]  And what's really changed?
[02:51.610 --> 03:02.110]  I mean, I think it's fair to say that the left coast, Silicon Valley companies are more sensitive to the topics, are more willing to challenge things in court, or at least speak publicly about the ongoing existing challenges.
[03:02.230 --> 03:13.830]  But over these right coast companies that we all kind of use, whether we like it or not, AT&T, Comcast, Verizon, I mean, some of these documents that Snowden leaked refer to productive surveillance partnerships, I'm quoting, by the way, those are productive,
[03:13.970 --> 03:18.030]  and partnerships are in these docs, that go back decades with these phone companies.
[03:18.370 --> 03:25.610]  The names are redacted, Company A and Company B, but the market share info is there, and you just correlate with the FCC docs, and you realize, hey, they're talking about AT&T and Verizon.
[03:25.890 --> 03:26.330]  Surprise!
[03:26.770 --> 03:29.030]  So, what's actually changed, either of you?
[03:30.670 --> 03:32.850]  Well, I think the market has certainly changed.
[03:34.070 --> 03:38.950]  Privacy has become a differentiator that consumers pay attention to.
[03:40.370 --> 03:49.330]  And services and businesses that build products designed to protect the privacy of their users are seeing a huge upsurge.
[03:50.370 --> 04:00.190]  Unfortunately, as a company that operated in that space for about nine and a half years, I don't get to take very much advantage of it, but I still like to see it going on.
[04:01.010 --> 04:11.430]  The question really is, where do you draw the line in terms of your willingness as a business to protect your users' privacy?
[04:12.630 --> 04:18.770]  It's kind of hard to operate as a business in any country if you're completely unwilling to obey the laws of that country.
[04:19.590 --> 04:25.610]  But at what point do the laws become unjust, unethical, unconstitutional?
[04:26.230 --> 04:31.610]  And how and why should you fight them?
[04:36.490 --> 04:52.110]  One of the things that I think has changed from my perspective is I've been feeling, and a lot of people I know have been feeling, you know, this growing lack of trust in the public source cryptography that's out there.
[04:53.050 --> 05:17.240]  You know, there was a little bit of news about NSA's working within all the task forces that define the different crypto protocols, particularly like the NAIC curves, and it's led me to sort of back up a bit and start to wonder about, you know, all the weird little occurrences,
[05:17.680 --> 05:35.860]  the heart bleed bug, a couple of other things where just like one line of code was added, and it undermined an entire, you know, set of libraries that was underpinning a lot of the web traffic that people wanted to keep private.
[05:35.980 --> 05:48.380]  And so it's led me to start to think more about the idea of layering lots of different protocols, and kind of going even beyond like a belt and suspenders approach to like belt and suspenders and duct tape and string.
[05:49.900 --> 06:00.560]  Like, we run a Jabber server which forces everyone to use TLS, but then it also forces people to use end-to-end OTR, and it also offers the ability to use it as a Tor hidden service.
[06:00.800 --> 06:17.080]  And ideally, if you could use these different layered protocols, you know, when the heart bleed bug happened, our Jabber server is vulnerable to that, but OTR wasn't, and Tor debatably might have been.
[06:17.940 --> 06:29.420]  But by layering the different protocols and sort of introducing within the layer cake, protocols that government people weren't involved in the defining of.
[06:30.020 --> 06:40.380]  I think it seemed a bit nuts at first, but that type of approach is, I think, something that people are going to have to start to be considering as we move forward.
[06:41.440 --> 06:42.540]  Ladar, let me ask you this.
[06:42.700 --> 06:57.880]  You previously, going back in time, complied with narrowly tailored court orders in the past before shutting down LAV a bit, because the... I think you told me when we did this out...
[06:57.880 --> 07:03.260]  when we did a public event in San Francisco last year that it was just... it went too far across the line.
[07:03.260 --> 07:04.980]  But where is this line?
[07:05.140 --> 07:17.400]  I mean, if you're giving advice to folks in this room who may be running providers or technical staff at them or thinking of founding them, I mean, where do you draw the line between acceptable compulsory surveillance and unacceptable surveillance?
[07:17.560 --> 07:21.960]  Is it targeting a specific user versus wholesale bulk surveillance?
[07:22.120 --> 07:22.940]  Where is this line?
[07:24.760 --> 07:32.700]  So, personally, and this is obviously just a personal opinion, not a legal one, I draw the line at the Constitution.
[07:34.540 --> 08:03.760]  When there is a warrant issued by a judge for an individual user's data that is not overly broad or generic, then I believe it's just and right, and I should do everything I can to cooperate with law enforcement, because I think I enjoy the fact that I don't have to worry about somebody breaking into my home or stealing my car.
[08:04.460 --> 08:11.640]  I enjoy the rule of law, and the rule of law requires that law enforcement be able to collect evidence and prosecute criminals.
[08:13.400 --> 08:23.140]  Where I drew the line was when I'm talking to these agents, and they said, well, then you just have to turn over your SSL key.
[08:25.720 --> 08:56.100]  And it just struck me on so many different levels, because I understood, one, that that SSL key belonged to me, not the user, two, that from a technological perspective, because they had no idea where the suspect was connecting from, they were going to have to decrypt and inspect the contents of everyone's email passing through the server,
[08:56.320 --> 09:00.960]  just to presumably isolate the information that they were going after.
[09:00.960 --> 09:18.680]  And three, I was completely uncomfortable with law enforcement having unfettered, unaudited, unmonitored access to all of this information that I felt it was my primary responsibility to protect.
[09:19.400 --> 09:25.920]  So for me, that wasn't just a toe over the line, that was what line?
[09:27.940 --> 09:43.920]  And for me, it kind of took on an added component of malfeasance or villainy, when I was told that I couldn't tell anyone I had even received this request.
[09:43.920 --> 09:46.700]  Could you talk to an attorney?
[09:47.000 --> 09:49.100]  Was that clear or implicit or explicit?
[09:49.540 --> 09:51.960]  So this question comes up a lot.
[09:53.320 --> 09:55.080]  Could I talk to an attorney?
[09:55.320 --> 09:55.740]  Yes.
[09:56.300 --> 10:12.260]  In this particular instance, because the order in question was the byproduct of a criminal indictment in federal court, I was able to consult an attorney for the purposes of interviewing them to retain their services.
[10:12.260 --> 10:16.720]  When you're dealing with a classified warrant, the rules change.
[10:17.420 --> 10:31.240]  When you're dealing with a classified warrant, you actually have to consult the FBI first and verify that the attorney you want to speak with has the requisite clearance and get permission to tell them.
[10:32.240 --> 10:35.040]  So it really depends upon the circumstances.
[10:35.360 --> 10:41.820]  But in either case, you're denied the ability to send out a call for help.
[10:42.980 --> 10:48.040]  For me, I knew exactly which mailing lists to go to.
[10:48.240 --> 10:51.960]  I've been a member of the OpenSSL developers list for 10 years.
[10:52.480 --> 10:59.420]  That very day, my gut reaction was to send out a message to that list and ask if anybody had ever heard of something like this before.
[10:59.420 --> 11:16.060]  I had done research on the Internet looking for law review mailing lists that focused on information technology law and wanted to send out a similar message to those lists and see if I could find an attorney to help with my case.
[11:16.060 --> 11:18.200]  And I couldn't.
[11:18.480 --> 11:30.700]  I was denied what I thought were inalienable rights guaranteed to me as a citizen of this country and a prerequisite for receiving a fair hearing.
[11:32.740 --> 11:42.080]  I mean, the list goes on, but it really changed my thinking about where to draw the line.
[11:42.380 --> 11:47.400]  I'm not sure how long I should ramble on for, but...
[11:47.400 --> 11:49.280]  Well, if when in doubt, let me cut you off.
[11:49.660 --> 11:50.060]  Okay.
[11:50.280 --> 11:51.260]  We'll get back to this in a sec.
[11:51.260 --> 12:00.400]  So, both of you did the right thing, the ethical thing, when the Fed showed up with overly broad or potentially legally problematic surveillance demands.
[12:00.580 --> 12:03.160]  And so far, history has vindicated both of you gentlemen.
[12:03.660 --> 12:05.280]  But these were small businesses.
[12:05.680 --> 12:10.980]  So, Nick, you were trying to raise a few million bucks a few years ago when I interviewed you for CNET.
[12:11.320 --> 12:24.440]  Let's say that you're running an ISP or email provider and you become wildly successful and a manual plugs you on off the hook and Snowden and Ellsberg joins your board and everyone in this room who's kind of slacking right now turns into a paying customer.
[12:24.440 --> 12:30.020]  You do an IPO and you get a hundred million users and the Feds come calling with a surveillance demand.
[12:30.100 --> 12:36.460]  They have a court order and they were requiring you to install what they're saying is a custom port reader box on your network.
[12:36.660 --> 12:37.920]  It's been designed by the Feds.
[12:38.020 --> 12:40.380]  The FBI has a laboratory just for this in Virginia.
[12:40.560 --> 12:42.140]  And they say it's going to only intercept metadata.
[12:42.540 --> 12:45.440]  And they've sworn this to the court and the court order is legit.
[12:45.440 --> 12:48.520]  You fight it in court and you lose before a district judge in an appeals court.
[12:48.760 --> 12:49.540]  So, what do you do?
[12:49.680 --> 12:53.680]  Do you shut down and strand your hundred million users and get sued by your investors?
[12:54.700 --> 12:56.120]  What do you do ethically here?
[12:57.780 --> 13:15.720]  Well, part of my thinking in this respect is that, you know, if people in this room are going to do a new startup today, you have to kind of anticipate these things and then in your design spec from the very beginning, you have to try to create a situation in which you cannot provide data.
[13:16.200 --> 13:17.220]  I tried that.
[13:17.440 --> 13:17.740]  Remember?
[13:18.060 --> 13:18.460]  Yes.
[13:19.160 --> 13:22.980]  But the problem was you had these keys that could unlock data.
[13:22.980 --> 13:32.420]  And so, you know, for instance, earlier I was talking about the Jabber Kalix Institute org server forcing people to use OTR end-to-end.
[13:33.400 --> 13:40.620]  If you create a situation in which only the end users hold the keys, then the service provider cannot be forced to hand anything over.
[13:42.560 --> 14:01.220]  And basically, one of the things that we're working on now in terms of we have a prototype that we're building with the intention of it being used on public networks like library, public Internet or Internet cafes or, you know, organizations that have open Wi-Fi,
[14:01.440 --> 14:08.760]  which is devices that Torify the traffic and automatically send everything over the Tor network.
[14:10.280 --> 14:20.500]  What if the request is a little more nefarious and what they want you to do is reconfigure your systems to inject something onto the user's device?
[14:21.320 --> 14:23.360]  Because you don't have access to the data.
[14:23.920 --> 14:31.260]  This is like the forced... this is the fed malware, a forced update of your anti-virus software operating system or whatnot.
[14:31.660 --> 14:32.340]  Windows update?
[14:32.560 --> 14:33.300]  Windows, exactly.
[14:33.600 --> 14:35.200]  Okay, so this is the hypothetical.
[14:35.200 --> 14:40.120]  Some of this gets beyond the technical level and into legal questions.
[14:40.680 --> 14:51.320]  And one of the questions that a bunch of people that I consult with and I have been discussing is the idea of the separation between the provider and the developer of the software into separate legal entities.
[14:51.640 --> 15:04.860]  Because I think that the bar would be much higher to impose a change in software or inserting a backdoor against an organization that does nothing but develop software as opposed to actually being a service provider.
[15:05.080 --> 15:13.360]  So if you have a separate legal entity that develops the software and a separate legal entity that is the provider, the provider doesn't write the software.
[15:13.440 --> 15:16.760]  But they are subject to all these laws like CALEA.
[15:17.880 --> 15:19.780]  CALEA is... what is the acronym?
[15:19.940 --> 15:21.000]  It's like communities...
[15:21.000 --> 15:22.960]  Communications Assistance for Law Enforcement.
[15:23.520 --> 15:37.860]  So this law forces service providers to be able to provide a real time stream of either telephone calls or Internet traffic to the feds in real time.
[15:37.980 --> 15:43.900]  So you have to essentially have a plug for them to plug into and all your equipment has to be compliant with their specs.
[15:43.900 --> 15:47.520]  Now, there's no simple way to get around that.
[15:48.140 --> 15:59.440]  And one of the scary things about CALEA is that if you are not compliant with it, it not only can have civil penalties, but there are actually criminal penalties.
[15:59.580 --> 16:03.180]  So you can go to prison if you set up a system that does not comply with it.
[16:06.120 --> 16:17.380]  Now, I don't see an easy way around that, except to ensure that the data that's passing through is encrypted on the client's device with keys that the service provider does not have.
[16:18.580 --> 16:35.080]  And then again, this idea of having the software development part and the service provider part being in different legal entities, I think, creates a situation in which it would be extremely burdensome for the government to force a developer to put a backdoor in that way.
[16:35.260 --> 16:43.520]  But I've got this modified version of eJabberD that I really want you to run, and it's going to be injecting this malware into Pidgin clients as they connect.
[16:44.300 --> 16:49.340]  Yeah, I mean, there is a weird thing that I've noticed in terms of judges.
[16:49.620 --> 16:56.800]  Like, you know, you ran into problems with judges, in which, you know, a judge can issue an order, and they kind of have free reign.
[16:57.500 --> 17:04.400]  I've been in court and seen people be rude to a judge and be instantly sentenced to two weeks in prison just on the spot.
[17:04.400 --> 17:06.300]  And judges have a lot of leeway.
[17:06.740 --> 17:11.820]  They can issue orders, which I suppose you can always appeal and go to a higher court.
[17:11.960 --> 17:16.800]  But if you don't, you know, those orders stand and those judges are like little kings.
[17:17.780 --> 17:28.580]  And so if they tell you to do something like that, that's when you get into a super difficult situation where maybe you're going to decide to implode like Ladar did with Lavabit.
[17:29.900 --> 17:40.740]  Although I think my tendency would be to call up the ACLU again and have a discussion about whether this is legal or, you know, constitutional.
[17:42.920 --> 17:45.040]  Now, let me inject a personal note here.
[17:45.180 --> 17:50.980]  So I left CNET to found a news startup that will intelligently recommend articles based on what it understands your interest to be.
[17:51.060 --> 17:55.400]  And if you read a lot of articles on a certain topic, the feds, in theory, might be interested.
[17:55.760 --> 17:59.340]  Give us the identities of anyone interested in Al-Qaeda or explosives or both.
[17:59.400 --> 18:01.820]  Never mind that there are legitimate reasons to be interested in both.
[18:01.960 --> 18:05.240]  So what I've done is put in the privacy policy and my attorney ruled her eyes at this.
[18:05.900 --> 18:10.480]  As of today, we have not received any legal process or demands from any federal or local government.
[18:10.600 --> 18:13.900]  No NSLs, civil subpoenas, search warrant, FISA orders, et cetera.
[18:14.020 --> 18:19.040]  We received no legal orders requiring us to monitor users' future activities or to modify our service.
[18:19.200 --> 18:21.980]  We do receive any form of compulsory process, et cetera, et cetera.
[18:22.940 --> 18:25.800]  This is kind of a warrant canary in a privacy policy.
[18:26.060 --> 18:29.580]  Is this something that an ethical company should do?
[18:30.960 --> 18:32.780]  What would you recommend in this case?
[18:32.940 --> 18:34.500]  Or just not offer the service at all?
[18:34.500 --> 18:42.240]  So this reminds me of a conversation I had with the prosecutor in my case after the hearing I had in D.C.
[18:42.420 --> 19:02.100]  where I tried to explain to him, amongst many concerns, one of the ones that I had was continuing to advertise my services secure once I had knowledge of a little black box on my network sniffing up all the traffic and knowing that SSL was no longer protecting the information as it traversed the wire.
[19:03.360 --> 19:11.580]  And I said, well, could I at least modify my site to remove some of these marketing materials?
[19:12.160 --> 19:24.420]  And he said, no, you can't make any changes to your site or your materials that would in any way indicate to the suspect in the case that there may be an investigation going on.
[19:25.540 --> 19:27.470]  But this is an FBI agent.
[19:28.600 --> 19:30.040]  This was an assistant U.S. attorney.
[19:30.420 --> 19:31.180]  This was an AUSA.
[19:31.320 --> 19:32.740]  Senior assistant U.S.
[19:33.000 --> 19:35.340]  But this is not the same as a court order saying.
[19:35.780 --> 19:38.380]  AUSAs make claims that may not be legally grounded.
[19:38.380 --> 19:42.040]  But I think Nick wanted to jump in with a thought.
[19:42.620 --> 19:46.000]  Warrant canaries, I've always thought that they're an interesting idea.
[19:46.000 --> 19:48.940]  And I love legal hacks of that sort.
[19:49.680 --> 20:00.080]  I've had talks, though, with really knowledgeable civil liberties attorneys who kind of laughed and said, you're going to be charged with contempt if you try that.
[20:01.460 --> 20:03.180]  But someone has to try.
[20:03.480 --> 20:04.840]  I would love to see it happen.
[20:04.980 --> 20:06.840]  I don't know that I want to be that person.
[20:08.380 --> 20:15.780]  So I'm not convinced 100% that it would work and that it wouldn't result in someone going to prison.
[20:15.780 --> 20:19.500]  But it would certainly be nice to see someone take that stand.
[20:20.280 --> 20:24.540]  You know, there was another legal hack that I floated that was kind of similar.
[20:24.680 --> 20:32.060]  Like a trick in that I was talking about what about if you made your passphrase for your key an incriminating statement.
[20:32.260 --> 20:37.020]  So you say something like, on the 5th of July, 1982, I stole a car and drove it into a river.
[20:37.620 --> 20:40.920]  And that way you could plead the 5th and refuse to give your passphrase.
[20:44.580 --> 20:48.060]  Then they'll give you use immunity and say, we're not going to prosecute you for it.
[20:48.120 --> 20:51.120]  I was going to say, we need to check with a lawyer on that one first.
[20:51.380 --> 20:52.840]  Kill someone to make it really convincing.
[20:53.000 --> 20:54.280]  Maybe we're not going to go down this path.
[20:54.420 --> 20:55.900]  This may not be the ethical approach.
[20:56.460 --> 20:58.360]  But these things, I think you'll get thrown in jail.
[20:58.480 --> 20:59.780]  That's what I've always been told.
[21:00.720 --> 21:04.080]  Are there some services that maybe we just can't ethically offer?
[21:04.200 --> 21:15.040]  Let's say there's a new company called Know You Better that's going to give you a free computer, but we're going to analyze everything on your phone, everything, assuming a rooted phone, the contents of your phone calls, everything on your PC.
[21:15.180 --> 21:17.260]  You'll plant audio bugs in your house.
[21:17.260 --> 21:18.220]  I thought schools were doing that.
[21:18.260 --> 21:18.740]  Hold on, hold on.
[21:18.880 --> 21:20.300]  The GPS trackers in your phone.
[21:20.420 --> 21:22.360]  It would actually be a really good personal assistant.
[21:22.360 --> 21:24.320]  It would be like a real Jeeves in your pocket.
[21:24.420 --> 21:26.980]  But it might be a one-stop shop for government surveillance.
[21:27.160 --> 21:30.040]  Can we just draw the line and say it's unethical to ever offer this?
[21:30.600 --> 21:31.160]  Hell yeah.
[21:33.080 --> 21:37.220]  This is why you're not living in Silicon Valley right now, I think.
[21:37.220 --> 21:46.520]  It is completely unethical to give somebody a device without informing them that the sole purpose of that device is to collect personal information on them.
[21:46.920 --> 21:49.700]  You get a free computer, you get a free phone out of it.
[21:49.800 --> 21:50.600]  It just tracks you.
[21:51.360 --> 21:52.460]  I mean, it discloses this all.
[21:53.960 --> 21:55.860]  I mean, there are a lot of things out there.
[21:55.980 --> 22:05.120]  You could argue that Google and Facebook and your mobile phone are what you just described, except that they don't advertise it as being a tracking device.
[22:05.120 --> 22:09.720]  And in the case of your phone, they make you pay to carry the tracking device.
[22:09.920 --> 22:13.120]  Well, there is the idea of informed consent.
[22:13.580 --> 22:26.180]  So, you know, are we in a situation where the person has been informed and given their consent to be monitored, say, in participating in some academic research study?
[22:26.180 --> 22:36.100]  That is at a very different level than, say, manipulating data on a large social networking site and seeing how it influences the mood of your users.
[22:37.620 --> 22:38.880]  Well, I'm not going there.
[22:38.980 --> 22:40.300]  That's a different topic.
[22:40.560 --> 22:41.920]  We could spend a whole day on that.
[22:42.160 --> 22:43.200]  But both of you are...
[22:43.200 --> 22:44.340]  I mean, you mentioned Google and Facebook.
[22:44.520 --> 22:46.760]  You're kind of proposing an alternative to Google and Facebook.
[22:47.160 --> 22:49.360]  And maybe you even want to compete with them at some level.
[22:49.360 --> 22:50.760]  But can I ask you this?
[22:51.200 --> 22:52.470]  Some of these left...
[22:53.060 --> 22:58.240]  Let's assume that the right-post companies were these long-standing, decades-long partnerships.
[22:58.760 --> 23:01.240]  They're probably not going to change their spots right away.
[23:01.360 --> 23:03.320]  But maybe the left-post companies are different.
[23:03.480 --> 23:12.360]  I mean, I was the first to disclose last May, before anyone ever heard of Edward Snowden, that Google was fighting the feds over not just one, but two national security letters, including one here in New York.
[23:12.800 --> 23:17.560]  Google adopted forward secrecy before anyone else and turned on HTTPS by default in 2010.
[23:17.560 --> 23:19.680]  Yahoo didn't until earlier this year.
[23:19.800 --> 23:22.140]  And last I checked, still doesn't support forward secrecy.
[23:22.500 --> 23:28.540]  Twitter notified some of the WikiLeaks folks, including Jake, that they were the targets of a court order.
[23:28.620 --> 23:31.220]  I can't imagine Facebook doing that.
[23:31.440 --> 23:34.100]  Can we say that some of these companies are more ethical than others?
[23:34.180 --> 23:34.880]  Is there a continuum?
[23:35.220 --> 23:36.680]  EFF has that privacy scorecard.
[23:37.200 --> 23:38.300]  Who's got your back every year?
[23:39.020 --> 23:40.440]  Oh, there certainly is.
[23:40.740 --> 23:54.180]  And unfortunately, because so much of this stuff plays out in back rooms and outside of the public eye, it's really difficult to tell which companies are worthy of your trust and which ones aren't.
[23:54.360 --> 24:08.140]  And that's why the EFF scorecard is so valuable, because they do their homework and give you a summarized answer of how good is this company about protecting your privacy.
[24:10.240 --> 24:10.720]  Nick?
[24:11.580 --> 24:27.340]  On a certain level, the whole business model of data mining the user's data and then providing targeted advertising based on that, it kind of has to be thrown out the window if you're going to be really serious about privacy.
[24:27.540 --> 24:36.500]  And I think as tough of a hill as it is to climb, we really have to think about sort of moving back to the fee-for-service model.
[24:37.420 --> 24:38.800]  I think you'll pay with a credit card.
[24:39.500 --> 24:40.220]  You can.
[24:40.800 --> 24:42.120]  You know, there are alternatives.
[24:42.360 --> 24:45.000]  There's Bitcoin, there's, you know...
[24:45.000 --> 24:45.420]  Cash.
[24:45.660 --> 24:47.560]  There are some, like, more cash.
[24:47.780 --> 24:48.500]  Remember cash?
[24:48.700 --> 24:50.840]  There are some semi-anonymous ways to deal with it.
[24:51.380 --> 25:02.640]  But I guess my point is, regardless of how you pay, if you're going to move to a model where the service provider does not have access to the communications of the users, then you can no longer data mine it, you can no longer sell it to data aggregators,
[25:03.360 --> 25:05.460]  and it doesn't... it cannot be a revenue stream.
[25:05.620 --> 25:12.440]  So you have to figure out some other way to sort of capitalize in your business model when you're designing it right at the beginning.
[25:13.640 --> 25:23.860]  And unfortunately, you know, fee-for-service is... it's hard, you know, when there's so many things like Gmail out there for free that are so convenient, that work so well.
[25:24.860 --> 25:31.320]  Or 50 bucks a year and you get your no ads, what is it, Google Apps for Business or Education.
[25:31.620 --> 25:40.380]  I was going to say, I think the ethical question also changes when you're allowed to inform your users when you turn over their data to a third-party.
[25:41.020 --> 25:45.840]  And that third-party doesn't necessarily have to be, you know, a government request.
[25:45.840 --> 25:49.720]  It could be, you know, a research company that you're partnering with.
[25:49.720 --> 26:02.780]  And I really think that's the direction we need to move in, is every time a credit agency gives my personal information to a potential lender, they have to let me know.
[26:02.960 --> 26:06.720]  And I should be able to get a copy of that very same data myself.
[26:07.080 --> 26:25.440]  Taking it into the context of law enforcement, what really bothered me was the fact that I was seeing firsthand that people were being accused of crimes in court, warrants were being issued to conduct surveillance, and nobody was ever being arrested.
[26:25.860 --> 26:31.920]  And because they were never arrested, they never had an opportunity to face their accuser or set the record straight.
[26:33.360 --> 26:41.320]  Take it one step further, you've got a service provider that's turning over their personal information indefinitely.
[26:42.700 --> 26:48.660]  that information is then being collected, coalesced, and eventually used against them.
[26:48.780 --> 26:53.460]  And they have no ability to get a copy of that very same data to use in their defense.
[26:54.560 --> 26:58.700]  I think the equation really changes with secrecy.
[26:58.780 --> 27:01.740]  And I think that we need to move away from that.
[27:04.000 --> 27:13.080]  I'm willing to say that if I were to ever restart Love a Bit, I think I would change the way I responded to law enforcement requests.
[27:13.440 --> 27:23.580]  And I don't think I'd ever feel comfortable again servicing a law enforcement request that remained secret indefinitely.
[27:24.180 --> 27:28.540]  So the question becomes, you know, how long should it remain secret?
[27:28.540 --> 27:42.780]  You know, the Supreme Court has said for a very good reason that our right to free speech is superseded by the government's need to conduct investigations and keep the targets of those investigations secret.
[27:43.240 --> 27:46.220]  But is that right indefinite?
[27:47.180 --> 27:48.300]  Where does it end?
[27:48.420 --> 27:49.180]  When does it stop?
[27:49.440 --> 27:59.440]  It's been a year now, and I'm still not allowed to discuss who the target was of, you know, the investigation that led to my shutdown.
[28:00.840 --> 28:02.500]  Nick, it's been about 10 years.
[28:02.640 --> 28:04.580]  I think you have some news on that front, don't you?
[28:05.960 --> 28:06.940]  Yes, sort of.
[28:08.520 --> 28:16.660]  I've been continuing to fight the gag order that I was placed under in 2004 for now 10 years, a little bit more than 10 years.
[28:17.400 --> 28:32.940]  And as time has gone on, I've slowly chipped away at it for the first seven years with the help of the American Civil Liberties Union, and more recently with a legal clinic at Yale Law School, the Media Freedom and Information Access Law Clinic.
[28:33.700 --> 28:35.200]  They're really great people.
[28:35.980 --> 28:42.060]  I've been blessed to have pro bono legal help for free.
[28:43.140 --> 28:50.700]  If I didn't have that, I would not have been able to make any progress in my legal case.
[28:51.180 --> 29:08.120]  The most recent thing that happened a few weeks ago was that I finally earned the right to talk about the target of the underlying investigation in my case, because now the FBI finally admits that there is no underlying investigation there.
[29:08.120 --> 29:13.420]  What, you mean the secrecy just expired magically and you were allowed to talk?
[29:13.640 --> 29:14.400]  No, that's the thing.
[29:14.540 --> 29:14.800]  That's the thing.
[29:14.960 --> 29:15.580]  Who is the target?
[29:16.380 --> 29:17.260]  Come on, Spill.
[29:17.400 --> 29:25.420]  The irony is that I'm not going to tell you who the target is, because the target doesn't want me to reveal their identity.
[29:26.240 --> 29:28.840]  And I respect their right to privacy.
[29:29.400 --> 29:31.260]  It's a private individual.
[29:32.560 --> 29:39.500]  It's not an entity or an organization that's sort of interesting or newsworthy.
[29:39.820 --> 29:41.080]  It was just a person.
[29:41.340 --> 29:43.400]  So I don't want to reveal their name.
[29:43.840 --> 29:51.160]  But I finally could tell my wife that I've been married like four years and I was finally able to explain to her exactly what happened.
[29:51.800 --> 29:56.580]  However, I'm still partially under a gag.
[29:57.060 --> 29:59.840]  And essentially my national security letter was three pages long.
[29:59.960 --> 30:06.580]  And the third page was this appendix that listed all the types of information that the FBI was demanding from me.
[30:06.920 --> 30:08.620]  And it was completely redacted.
[30:08.800 --> 30:12.700]  And all you could see was that they left the bullets of each line unredacted.
[30:13.280 --> 30:14.240]  So you could count them.
[30:14.340 --> 30:15.780]  So it was like 16 bullet points.
[30:15.920 --> 30:19.580]  And I'm still not allowed to talk about what types of information were sought from me.
[30:19.580 --> 30:34.320]  And in a lot of ways, that is the meat of the public policy discussion of what types of information is the government allowed to gather on all of us without any actual suspicion of a crime having occurred.
[30:34.480 --> 30:35.420]  Can I ask you this?
[30:35.560 --> 30:35.920]  There's...
[30:36.580 --> 30:44.400]  NSLs, if you read the actual text of the statute, which I did not for six months or eight months, but it actually seems rather narrow.
[30:44.400 --> 30:50.340]  But I've heard, not from you, but from other folks, that the government's interpretation has expanded over the years.
[30:50.800 --> 30:52.520]  Would you generally agree with that statement or disagree?
[30:53.380 --> 30:54.940]  I don't know how they're being used.
[30:55.100 --> 30:57.460]  I mean, thank God I've not received another one.
[30:58.000 --> 31:03.020]  Although, you know, I would love to have another crack at challenging the statute.
[31:03.260 --> 31:12.420]  And I was always disappointed that what happened in my case was that we won at the lowest court level and the NSL provision was ruled unconstitutional.
[31:12.420 --> 31:14.280]  And then we kept winning and kept winning.
[31:14.460 --> 31:21.420]  And eventually the government withdrew the letter, which removed my legal standing to challenge the illegal search.
[31:22.520 --> 31:33.240]  And I think, you know, they didn't tell me and I can't read their minds, but I think that this was a tactical move for them to avoid losing in the Supreme Court, which would have potentially invalidated the entire Patriot Act then.
[31:33.240 --> 31:34.880]  There was a lot at stake for the government.
[31:36.200 --> 31:41.680]  But it left a bitter taste in my mouth because essentially they just ran away.
[31:42.460 --> 31:47.040]  And the issue wasn't able to be adjudicated, you know.
[31:47.160 --> 31:51.700]  So we don't know what the Supreme Court would say on that.
[31:51.840 --> 32:08.400]  And I feel like that this issue of warrantless surveillance has become, whether it's because of political infighting and wanting to slam the current president or for whatever reason, but it's become a huge bipartisan issue in a way that it wasn't several years ago.
[32:09.320 --> 32:13.120]  And I would be curious to see how the court would rule on warrantless surveillance.
[32:13.120 --> 32:28.700]  But we haven't... every time that a person or an entity has challenged national security letters at the constitutional level, there was my case and there was the Connecticut librarians and there was also the Internet archive on San Francisco.
[32:29.100 --> 32:38.120]  Every time that someone has shown willingness to take it all the way to the top, the FBI has always withdrawn the letter and just said, okay, like we don't want that data anymore.
[32:39.860 --> 32:45.280]  Seemingly, for tactical reasons, to avoid actually having the courts rule on the legality.
[32:45.500 --> 32:45.900]  Let me...
[32:45.900 --> 32:52.960]  Well, I was going to say, I think it's pretty clear the FBI thinks they can get access to anything that they want, even if it doesn't reside in this very country.
[32:53.200 --> 33:01.860]  But what I was going to ask you, Nick, is how long do you think it's ethical to keep the name of a suspect in an investigation secret?
[33:02.780 --> 33:04.960]  You know, that's the thing, I mean...
[33:04.960 --> 33:06.640]  I was looking for a number.
[33:06.640 --> 33:07.940]  I don't know.
[33:08.680 --> 33:09.620]  Like, I'm not...
[33:09.620 --> 33:12.640]  I don't claim to be an expert in law enforcement and...
[33:13.280 --> 33:14.600]  It's not a legal question.
[33:15.000 --> 33:19.440]  I think that there should clearly be some type of a statutory limit set.
[33:20.040 --> 33:23.400]  You know, whether it's going to be 30 days, 90 days or some...
[33:23.400 --> 33:25.040]  But some number has to be set.
[33:25.140 --> 33:31.660]  It can't just be that hundreds of thousands of NSLs go out and every recipient is gagged and then they're gagged forever.
[33:32.640 --> 33:35.240]  That was ruled to be unconstitutional, repeatedly.
[33:35.920 --> 33:48.000]  So, the fact that the courts, the lower courts and the appeals courts have all said that this is a violation of First Amendment rights and that it continues to go on and on is completely unacceptable.
[33:48.000 --> 33:56.880]  But I think, and this is kind of conjecture, but I'm pretty sure that the vast majority of NSLs go to the big providers.
[33:57.020 --> 34:01.600]  They go to AT&T, to Verizon, you know, to Comcast, et cetera, et cetera.
[34:02.000 --> 34:12.920]  And unless those companies are willing to take these challenges all the way to the Supreme Court, I don't see how we're going to find out the answer to the ultimate constitutionality.
[34:12.920 --> 34:14.320]  We've shown zero willingness to do so.
[34:14.380 --> 34:15.620]  Let me open this to the audience.
[34:16.140 --> 34:26.640]  We promised, the folks at HOPE promised wisely or unwisely, that we would give you the opportunity to ask questions about things like software design, API design, network design, policy.
[34:26.880 --> 34:29.760]  So, we're here and at your disposal.
[34:30.000 --> 34:32.280]  If you want to identify yourself, feel free.
[34:32.460 --> 34:33.700]  If not, it's a hacker conference.
[34:33.800 --> 34:34.520]  You can make something up.
[34:35.080 --> 34:38.400]  I'll use my name on my Verizon prepaid cell phone, John Doe.
[34:39.580 --> 34:45.880]  I took Mr. Leveson's public advice and I moved my email to a VPS in Iceland.
[34:46.200 --> 34:48.620]  And I'd like to offer that to a few friends.
[34:49.340 --> 34:53.620]  I was wondering at one point, do I become subject to CALEA?
[34:53.740 --> 34:55.100]  And I'd like a follow-up question, please.
[34:56.560 --> 35:01.780]  You become subject to CALEA if you're using the plain old telephone system here in the United States.
[35:01.780 --> 35:20.220]  Because any service provider or telecom company that connects to the POT system here is subject to the provisions of CALEA, which is why VoIP providers, for example, wholly VoIP providers, are still allowed to a certain extent to offer some levels of encryption.
[35:21.000 --> 35:39.940]  If you were to use a telephone company, a VoIP telephone company, like 01 that starts with the word silent, which is based abroad intentionally to avoid the provisions of CALEA, then, you know, that was why they did it the way they did.
[35:39.940 --> 35:42.480]  They're now headquartered in Switzerland.
[35:42.860 --> 35:53.000]  I was going to say that the laws over in Europe are interestingly and varied and different from the ones here.
[35:53.660 --> 36:01.360]  Iceland is interesting because in Iceland the right to speak freely is sacrosanct.
[36:02.260 --> 36:06.700]  But yet the government still has the ability to conduct secret surveillance.
[36:06.700 --> 36:08.060]  They're a member of the EU.
[36:08.380 --> 36:11.140]  They're subject to these external jurisdictions.
[36:12.820 --> 36:24.680]  For me, I tend to prefer the model of a fixed amount of time that the government can conduct this secret surveillance, 30 days, 60 days.
[36:24.860 --> 36:29.160]  I don't think I'm really comfortable with the secrecy lasting longer than that.
[36:29.500 --> 36:51.060]  I think if they've had you under surveillance for 60 days, they should either file charges against you and or you as a provider should be able to notify them that you've been violating their privacy and turning this information over so that they can begin the process of searching for a lawyer and preparing a defense.
[36:51.560 --> 36:55.360]  I think we kind of violate due process by going any farther than that.
[36:55.620 --> 37:12.020]  And it's interesting to look at Europe because there are a lot of countries that feel the same way and actually have laws in place that require the service providers to notify the users whenever they receive a request from law enforcement for their information.
[37:12.300 --> 37:14.620]  And I believe that's the way it should be.
[37:16.360 --> 37:36.060]  You shouldn't have your information slurped up, stuck in a gigantic database forever and ever, and never know that you were even a suspect except until maybe you decide to fly internationally and you get the rubber glove treatment when you go through border security.
[37:37.040 --> 37:39.160]  Ladar, you're sounding almost libertarian.
[37:39.320 --> 37:40.080]  You want to come out of the closet?
[37:41.000 --> 37:43.560]  No, I'm sounding like an American.
[37:43.560 --> 37:44.540]  Yeah.
[37:49.960 --> 37:51.160]  A good applause line.
[37:51.480 --> 38:02.500]  Okay, with that, there's also one thing to keep in mind is that the FBI, probably acting as a proxy for the NSA, has been trying to expand CALEA for something like eight years.
[38:02.940 --> 38:14.400]  If you do some searches for Going Dark, this is the name of their initiative to convince Congress to expand the CALEA to things like social networks, email providers, not your traditional telecommunications providers.
[38:14.400 --> 38:15.620]  Going Dark, thank you.
[38:15.740 --> 38:17.040]  And my follow-up, Mr. Leveson.
[38:17.400 --> 38:24.000]  I understand that being formed as an LLC caused issues for your representation when you had to go to court.
[38:24.080 --> 38:24.640]  Was that the case?
[38:24.920 --> 38:25.160]  No.
[38:25.280 --> 38:28.980]  Would you recommend a specific form of organizational formation?
[38:29.300 --> 38:30.600]  So it's interesting.
[38:30.840 --> 38:33.260]  I've learned a lot about the law in retrospect.
[38:33.700 --> 38:42.000]  And one of the things that I learned is that typically an LLC, a corporate entity, is actually not allowed to appear pro se or without counsel.
[38:42.000 --> 38:42.600]  That's right.
[38:44.730 --> 39:04.840]  But it's interesting because the appellate court decided to overlook that for the very same reason that the judge did, that they were in such a hurry to drag me into court that I was effectively afforded about four days to find an attorney to represent me in court in Virginia,
[39:05.020 --> 39:07.320]  which is about a thousand miles from my home.
[39:09.160 --> 39:25.320]  And because I was dealing with a secret proceeding, I would have to call each individual attorney one by one, explain the circumstances of the situation to them, which would take anywhere from two to four hours, depending on how quick the attorney was,
[39:25.880 --> 39:28.580]  and then ask for their advice about how to proceed.
[39:29.220 --> 39:42.400]  And, you know, I ran into this problem of when speaking with a criminal defense attorney whose sole mission in life is to keep their client out of jail, they couldn't comprehend that I was willing to go to jail to defend the Constitution.
[39:43.180 --> 39:48.640]  So their advice was give the government what they want or be prepared to go to jail.
[39:48.820 --> 39:51.820]  And I was like, well, I don't really need an attorney for those two options.
[39:52.020 --> 39:52.780]  I need...
[39:54.020 --> 39:55.480]  Okay, let's take the next question.
[39:55.620 --> 39:55.960]  Thank you.
[39:59.350 --> 40:05.490]  On the subject of NSLs, I'm familiar vaguely with the legal concept called declaratory judgment.
[40:06.050 --> 40:13.670]  Is there a reason that even though you don't have standing to challenge one anymore, you can't seek declaratory judgment as someone who could be affected by one?
[40:13.850 --> 40:15.290]  I think that's a Marsha question.
[40:16.530 --> 40:21.910]  I think Ladar is referring to Marsha Hoffman, who's sitting in the front row and is a former EFF attorney.
[40:22.070 --> 40:23.630]  Do you want to stand up, Marsha, and say anything?
[40:23.710 --> 40:23.990]  Hold on.
[40:25.330 --> 40:27.390]  Right here is a microphone for you.
[40:30.820 --> 40:39.120]  So are you basically asking whether one could use a concept of declaratory judgment to get the entire statute invalidated?
[40:39.220 --> 40:39.780]  Is that the idea?
[40:40.200 --> 40:48.620]  Just as an ISP, whether you could say, I'm worried that I will be affected by one of these, I would like the court to judge whether or not this is constitutional.
[40:49.000 --> 41:03.220]  So the thing about going to court to challenge something is there's a concept of standing, which means that the court can't really make a judgment about a dispute unless there's actually a real thing that's happening, right?
[41:03.740 --> 41:16.160]  And so you can't take a hypothetical dispute to a court because basically, you know, there's nothing that is going to be determined between two people or two particular entities by that judgment.
[41:16.340 --> 41:19.060]  At least that's kind of, you know, that's the basic idea of the theory.
[41:19.060 --> 41:25.520]  And so you can't go to court and say, you know, I think there's a time in the future where possibly I could have a problem here.
[41:25.560 --> 41:28.060]  And I'd like you to declare that I would be in the right.
[41:28.420 --> 41:32.100]  So you kind of have to wait for the right circumstance to come up before you can do something like that.
[41:32.260 --> 41:38.760]  So, you know, that's why these two guys happen to be in the position to do to, you know, try to do that when they went to court.
[41:39.240 --> 41:40.480]  So it's a good idea.
[41:40.480 --> 41:46.040]  But I think unless you have something that's really crystallized and actually can be decided, it doesn't work.
[41:46.280 --> 41:46.680]  Okay.
[41:46.860 --> 41:47.180]  Thank you.
[41:47.180 --> 41:58.160]  Don't quote me on this, but I believe in 2004, which was when you began fighting the NSL, there were something like 12,000 of these letters sent out.
[41:58.440 --> 42:02.600]  And only one person stood up to challenge it.
[42:02.680 --> 42:04.160]  And he happens to be sitting next to me.
[42:04.660 --> 42:09.120]  If we look, I think at the last year or so, I think that number has reached the double digits.
[42:09.120 --> 42:17.740]  But the fact is when, you know, so many of these letters are going out so quickly, you've got two problems.
[42:18.000 --> 42:27.720]  You've got both a fear to fight and you've got this sort of lack of knowledge amongst our peers.
[42:27.720 --> 42:40.380]  You folks in the audience about when they receive a request like this, how do they evaluate whether or not it's just legal and ethical and whether or not and how they should fight?
[42:40.720 --> 42:44.860]  Because there is no guidebook on ethics for ISPs.
[42:44.860 --> 42:47.360]  It's not a class you take in college.
[42:48.400 --> 42:51.220]  You sort of have to do all of this stuff on the fly.
[42:51.220 --> 42:55.160]  And because of the secrecy involved, you have to do it in a vacuum.
[42:56.360 --> 42:57.280]  Let's take another question.
[42:58.220 --> 42:59.880]  So I have a question and an anecdote.
[42:59.880 --> 43:05.280]  My first question is, Ladar brought up that, you know, his service says, you know, it's totally secure.
[43:05.440 --> 43:13.420]  But if they, you know, the FBI breaks it all and then it's totally insecure, aren't there some sort of huge, you know, FTC implications for that?
[43:13.520 --> 43:15.140]  Because you're still advertising as being secure.
[43:15.400 --> 43:17.200]  And so aren't they then putting you at risk?
[43:17.580 --> 43:18.160]  Yes, there are.
[43:18.540 --> 43:22.060]  And currently the FTC hates the FBI.
[43:24.440 --> 43:24.880]  Awesome.
[43:24.880 --> 43:29.900]  No, I actually heard somebody from the FTC say this at a privacy conference.
[43:30.220 --> 43:33.480]  That, you know, this is a huge problem internally.
[43:34.860 --> 43:40.020]  But if you look at it in terms of both budget and influence, guess who wins?
[43:41.340 --> 43:42.580]  Probably the surveillance state?
[43:42.640 --> 43:45.320]  The one protecting the consumer or the one protecting the state?
[43:46.340 --> 43:49.100]  And I have an anecdote having to do with CALEA, actually.
[43:49.400 --> 43:54.540]  So I used to work for an organization that makes wireless mesh networking software.
[43:55.680 --> 44:04.860]  And so a local organization had this issue where they wanted to set up a huge, you know, mesh network in D.C. and they had funding and it was a great project and they had everything set and it was fine.
[44:05.180 --> 44:12.940]  And so they set all of these things up in D.C. and then they say, hey, you know, this would be so much better if we could connect it to municipal Internet.
[44:13.300 --> 44:17.000]  And so they contacted the municipal Internet and they initially said, yes, this is fantastic.
[44:17.880 --> 44:23.480]  And then they sent a follow up that says, hey, you can't actually do this because on review none of your devices are CALEA compatible.
[44:23.880 --> 44:27.240]  Because they are just typical open work compatible routers that you can buy anywhere.
[44:28.200 --> 44:33.400]  And even though the fact that CALEA doesn't actually, you know, cover wireless mesh networking was totally irrelevant.
[44:33.660 --> 44:37.820]  So they sent another letter that was like, no, no, no, we were just going to go forward with this because you already said we could.
[44:38.020 --> 44:41.100]  And they say, if you do this, we will be forced to intervene.
[44:42.900 --> 44:45.140]  And so that was just very random and strange.
[44:45.420 --> 44:47.420]  And CALEA is a weird thing, I think.
[44:47.420 --> 44:51.560]  I mean, CALEA as a statute on paper is narrow.
[44:52.220 --> 44:54.920]  And it originally referred to just phone companies.
[44:55.640 --> 45:01.640]  But FCC, through issuing papers, has slowly expanded it.
[45:01.960 --> 45:05.320]  But it wasn't done through Congress and it wasn't done through amending the law.
[45:05.320 --> 45:13.100]  But over time, now universities have to be subject to CALEA, university networks, VoIP providers.
[45:14.460 --> 45:20.200]  And it's sort of debatable whether a mesh networking provider is an ISP and whether it should be subject.
[45:20.480 --> 45:31.980]  But a lot of this is happening through, you know, diktats issued through FCC that are not being debated openly in Congress and that are not really subject to public scrutiny.
[45:31.980 --> 45:34.700]  And it's a really awkward situation.
[45:35.320 --> 45:48.280]  And at least in my case, the AUSAs involved effectively felt that the assistance provisions of CALEA actually applied to me.
[45:49.240 --> 46:10.160]  And they admitted that it wasn't written into the law, but that Congress had expressed this intent by passing CALEA, that even though if you look at the legislative record, they debated whether or not to extend, at the time, the assistance provisions of CALEA to Internet service providers and decided explicitly not to.
[46:11.220 --> 46:13.560]  So it's kind of a selective memory question.
[46:13.820 --> 46:14.260]  You're right.
[46:14.400 --> 46:18.960]  Louis Freeh, the then director of the FBI, told Congress, absolutely no, it's not going to apply to email.
[46:19.140 --> 46:20.140]  And he used that term.
[46:20.140 --> 46:26.200]  But ethically speaking, CALEA 1994 law created this disturbing presumption.
[46:26.320 --> 46:31.220]  The feds have a rule that says, in some cases, new technologies may not exist unless they're wiretap friendly.
[46:31.420 --> 46:33.360]  And think of the implications for this as we go forward.
[46:33.640 --> 46:35.020]  Yes, we have time for a few more questions.
[46:35.680 --> 46:36.720]  Hi, I'm Bart Gellman.
[46:37.780 --> 46:38.660]  And I've...
[46:39.140 --> 46:40.220]  Who do you work for?
[46:42.000 --> 46:43.360]  I'll take the fifth on that.
[46:44.480 --> 46:48.360]  So I think I've become slightly more interesting than I used to be to...
[46:48.360 --> 46:49.140]  I know how that...
[46:49.140 --> 46:50.080]  Surveillance types.
[46:50.380 --> 46:50.520]  Yes.
[46:52.200 --> 47:02.080]  And it's no secret I've publicly advertised that I have a Jabber account on, you know, CCEDE and a Rise Up account.
[47:03.140 --> 47:07.980]  And, you know, hypothetically, I might even use the services of somebody else here on the panel.
[47:09.000 --> 47:13.200]  And I wonder, to put it in a very exaggerated fashion, whether...
[47:13.200 --> 47:14.760]  How you assess the risk that you're...
[47:14.760 --> 47:21.420]  That you're, in effect, creating a honeypot for the government by attracting a large fraction of troublemakers.
[47:23.520 --> 47:24.700]  It's definitely...
[47:24.700 --> 47:26.040]  It's a troubling question.
[47:26.340 --> 47:27.240]  It's an awkward one.
[47:27.980 --> 47:37.260]  Actually, part of why I decided to set up the Jabber server that we run was because I started to worry about the CCC server.
[47:37.460 --> 47:40.940]  And just noticing how many people I was communicating with were using this server.
[47:40.940 --> 47:43.800]  And the fact that it's located overseas.
[47:44.240 --> 47:51.860]  And then, you know, some of the revelations from the Stoughton documents were that all the overseas traffic that was encrypted was being stored forever.
[47:52.180 --> 47:55.380]  So that they could sit there banging on it and trying to decrypt it.
[47:57.300 --> 48:04.620]  The other problem, from my point of view, was that the CCC server, not to pick on them.
[48:04.740 --> 48:06.680]  It's a great service that they run.
[48:07.020 --> 48:11.380]  But it wasn't forcing forward secrecy.
[48:14.120 --> 48:17.000]  It only recently became available as a Tor hidden service.
[48:17.140 --> 48:19.660]  And so it seemed like there was a lot of room for improvement there.
[48:20.220 --> 48:25.920]  But you definitely have a point that I think decentralization is extremely important.
[48:27.240 --> 48:35.700]  And actually, the Tor project guys are working on a Tor-based instant messaging client, which is supposed to be completely decentralized.
[48:36.700 --> 48:41.580]  And I think that that is a really interesting development and it's a really important one.
[48:41.720 --> 48:47.360]  But I think it can be mitigated by offering access to the servers as Tor hidden services only.
[48:48.340 --> 48:59.920]  So, like, I think Tor, as a layer on top of existing applications, can really do a lot in terms of obscuring metadata, obscuring geolocation data, as well as encrypting the content.
[49:00.160 --> 49:02.200]  I was just going to say, it's a freedom-hosting problem.
[49:02.200 --> 49:02.580]  Sorry, we're running a little on time.
[49:02.740 --> 49:04.880]  Let me go to closing statements in a sec.
[49:05.060 --> 49:06.440]  One more quick question, anyone, please.
[49:06.660 --> 49:08.100]  It's a comment, actually.
[49:08.900 --> 49:10.780]  There wasn't an unanswered question, I feel.
[49:10.780 --> 49:19.180]  There was, I think, the question was, how long is it ethical to keep records from the feds, basically?
[49:19.420 --> 49:23.500]  And I would answer to that, it's basically indefinitely.
[49:23.800 --> 49:27.240]  I don't believe it's actually ethical to snitch on our users.
[49:27.320 --> 49:27.860]  That's not our job.
[49:27.940 --> 49:30.360]  That's the police job, to surveil people.
[49:33.080 --> 49:35.600]  And my experience with the law...
[49:35.600 --> 49:38.160]  Ideally, the feds should go to the user to get the information, right?
[49:38.280 --> 49:39.560]  I mean, that's the way it's supposed to work.
[49:39.560 --> 49:48.360]  My experience with the law is that the only way to protect ourselves from the law is to, you know, stay as much as possible anonymous as to make zero-knowledge services.
[49:48.420 --> 49:51.860]  Because, yeah, they're not on our side.
[49:52.060 --> 49:53.440]  The law is not on our side.
[49:53.560 --> 49:55.480]  And it's not helping us, and it's not helping...
[49:55.480 --> 49:58.760]  So, what we call suspects are very often political activists.
[49:59.000 --> 50:00.340]  They're not criminals.
[50:00.680 --> 50:01.980]  And they are treated as criminals.
[50:02.240 --> 50:05.120]  So, we need to protect those people and, you know, f*ck the law.
[50:05.300 --> 50:07.320]  Okay, last thoughts for you two.
[50:07.320 --> 50:09.500]  You've got like one minute or two minutes left.
[50:09.560 --> 50:09.740]  All right.
[50:10.000 --> 50:15.260]  I was going to say the big problem is that we're all lazy and we like the convenience of modern technology.
[50:16.080 --> 50:21.020]  We like to be able to send messages from a device in our pocket and access the Internet from it.
[50:21.280 --> 50:31.180]  We like to be able to sit down at our home computer and browse the web at high speed without having to fiddle with the antenna on our roof.
[50:32.800 --> 50:35.100]  We enjoy these conveniences.
[50:35.340 --> 50:47.540]  And the problem is, unless you're willing to give up the conveniences afforded by technology, you're also going to have to give up, at least to a certain extent, some of your privacy.
[50:47.540 --> 50:58.740]  The problem is, we're giving up far more of our privacy than is technologically needed to provide the services that we enjoy.
[51:00.600 --> 51:10.940]  That's what I'm trying... I'm trying to change that with email, but that's only one small portion of how we communicate over the Internet.
[51:10.940 --> 51:11.520]  Nick?
[51:12.780 --> 51:14.120]  Last recommendations.
[51:15.200 --> 51:16.080]  That's a tough one.
[51:16.800 --> 51:18.460]  I'm at a loss for words.
[51:18.560 --> 51:18.840]  I'm sorry.
[51:19.560 --> 51:20.460]  Well, okay.
[51:20.560 --> 51:24.480]  So we have some websites so you can sign up for their products.
[51:24.740 --> 51:27.000]  I think there was a Kickstarter campaign.
[51:27.100 --> 51:28.480]  Is that over now, Ladar?
[51:28.680 --> 51:29.380]  Yes, it is.
[51:29.500 --> 51:34.780]  And I realized that when the Kickstarter ended, people could no longer support the effort.
[51:34.840 --> 51:40.640]  So we've been having to live off of what we raised during that initial fundraising drive.
[51:40.640 --> 51:46.900]  But if anybody does want to support the development effort for Darkmail, there are donation links on Lavabit.com.
[51:47.060 --> 51:48.260]  And Nick, do you have one as well?
[51:48.500 --> 51:48.840]  Yeah.
[51:49.120 --> 51:56.400]  Well, I'm not doing a Kickstarter right now, but we are doing a fundraising membership drive at our table down in the vending area in the mezzanine.
[51:57.100 --> 52:02.420]  And we actually have some interesting technology that we're offering people as a benefit of membership.
[52:02.620 --> 52:04.160]  And Ladar, there's a radio show?
[52:04.340 --> 52:04.720]  Yeah.
[52:04.920 --> 52:11.020]  If anybody has a question they didn't have time to answer, we'll be appearing on Radio Statler at 2pm.
[52:11.220 --> 52:15.240]  You're welcome to, I guess, stop by their sound booth or call in and ask your question then.
[52:15.620 --> 52:17.020]  Okay, we'll give these folks a round of applause.
[52:17.080 --> 52:18.940]  And Marcia, our impromptu guest speaker.
[52:18.940 --> 52:18.960]  Thank you very much.
[52:18.960 --> 52:19.140]  Thank you very much.
[52:19.780 --> 52:19.820]  Thank you very much.
[52:19.820 --> 52:19.840]  Thank you very much.
[52:19.840 --> 52:19.860]  Thank you very much.
[52:19.860 --> 52:19.940]  Thank you very much.
[52:19.940 --> 52:19.960]  Thank you very much.