Even if Mr Levinson wins his action against NSLs, that will remain true. Non-NSL warrants conform to the Constitutional protections and will continue to be served and fulfilled.
So the question is: should encrypted-hosting service designs be illegal unless they have a backdoor for the government and the service provider to get in?
If you want private email, you need to encrypt locally before the message is sent and decrypt locally after the message is received -- end of story.
PGP's model works pretty well. You get the key from a key server, you communicate through a (presumably different) mail server, and if you need more protection you use the web of trust. Imperfect, sure, but no security system is perfect, and at least with this the barrier to spying is high enough to stop mass surveillance (not true of Lavabit, whose users just have to be thankful that the service was shut down over such a request).
All schemes to verify identification of an entity with a key are probabilistic and in some degree unreliable. Even if the correspondent is your best friend and you exchange keys in person, there is the possibility that one of you will fail to maintain exclusive control over his/her secret key. The question is which methods are best in a relative sense - and what qualifies as "good enough" is for each operator to decide.
Of the two major alternatives, the CA system (and other schemes of similar design, relying on trusting third parties) and the web of trust based on individuals' estimations - of these, the latter is clearly more reliable. It was hard to convince anyone of this years ago, but the tech world has (mostly) now recognized the folly of third-party systems after painful experience.
EDIT: Corrected "former" to "latter", per post below - thanks!
> Of the two major alternatives, the CA system ... and the web of trust ..., of these, the former is clearly more reliable.
That is, you wrote "the CA system is more reliable than the WoT".
I'm pretty sure you didn't mean what you wrote. It seems to contradict the rest of your post.
Elaborating for the benefit of other readers: we have lots of evidence that the Certificate Authority system has been repeatedly compromised, certainly by state actors and probably also by (other) criminals. There are semi-solutions, like certificate pinning. One alternative (the only alternative I know of) is not trusting any Authority to get good certs, but rather getting them yourself, or from people you trust, or from people trusted by people you trust, etc... thus the Web of Trust. This alternative is pretty poor, but it might be less broken than CAs.
But does that mean that because you can compromise a system then the government is allowed to force you to compromise your systems to utterly betray the purposes for which they are designed and then lie about it?
I couldn't compromise the system... but as it turns out the feds have a few secret capabilities the public doesn't about... they still need certain things in order to break the security though and that's what I'm fighting. Both for the ability to tell people what those secret methods are and the right to not be forced into helping the feds compromise my system/service...
The reality is that laws can change, and that when we create systems that are technically easy to abuse, there will be people who push for the law to change so that the system is legally easy to abuse. The police are always look for more power, and if you have something like Lavabit, the police will want to have on-demand access to it -- and they will want to reduce the barriers to getting a warrant, or even remove the requirement to get a warrant in the first place (like, say, if the emails are older than 180 days). By having a back door inherent in its design, and by positioning itself as the gatekeeper for that backdoor, Lavabit invites abuse and its users were lucky that the founder is a man of principles.
To be clear, I think it is fantastic that you took a stand on this issue, and I wish more people had that kind of spine. The problem is that your system depends on you being a man who sticks to his principles.
Imagine the existence of a guy called Madar Mevinson, who runs a company Mavabit... that publicly shuts down over privacy concerns, but then reopens in triumph after a court battle... but little did we know, Madar was a government operative the whole time! (Or a non-state-actor criminal. Or just a creepy stalker. Whatever.)
And, because this is the internet, I'll mention that I am absolutely not suggesting that these things are true of Mr Levinson and Lavabit. But it's a bad security model to trust the ethics of a stranger, and from what I understand of Lavabit, that's required here. Maybe I misunderstood Lavabit?
PS: even so, 'mad props' to Mr Levinson, for taking a brave and productive stand
We really don't even need the NSA shut down, or for it to stop the mass surveillance, in order to have secure and confidential communications. Mass wiretapping is evil but it is not such a threat as long as we are legally and practically free to work around it.
The latter freedom is what the government is now attacking. Th US currently has no statute prohibiting "encrypted-hosting service designs [without] a backdoor for the government and the service provider", nor is there any statute commanding individual 'A' to enable the government to cryptographically impersonate 'A' online to deceive 'B'. But now, the USG has practically effected these policies by secret orders approved only by secret courts, with threats of prison for even revealing the existence of such orders, and preventing the subjects from challenging the legal basis in public courts according to Constitutional principles.
This really has profound implications. Do you have a right to run software of your own choice on your own server, to provide a service that enables the fundamental human right to confidential communications? This is an important measure of the descent into fascism, totalitarianism, police state, or whatever you want to call it, and further trashing of the rule of law.
IANAL, though.
Also, I don't know if it's currently "legal" or not to demand companies to keep encryption keys of what they're encrypting, but I'm pretty sure it's unconstitutional. So encrypting communications end to end should be constitutional/legal. The companies can still do that (if they have the will/customer pressure).
As for coerced backdoors, like they tried with Lavabit, that's just disgustingly immoral, and definitely unconstitutional.
That is probably a legislative challenge, not a legal challenge. Is he setting up a PAC?
You make an interesting point about encryption keys; it is unconstitutional to demand that an individual hand-over his keys in a speculative manner, but is not considered self-incrimination if the prosecutor knows that the relevant document is encrypted. for example, if the individual boasts that 'The Man can't read my encrypted tax evasion plan'.
But I have no idea how that reads-across to a corporation.