I’ve written several times here about the Department of Justice’s efforts to force secure email provider Lavabit to turn over its encryption keys. The DOJ wanted transactional information on one of Lavabit’s customers, presumably Edward Snowden. Disclosure of the encryption key would have exposed not only the target’s email activities, but also those of all of Lavabit’s other customers. In response to the DOJ’s legal shenanigans, Lavabit shut down.
Fourth Circuit Upholds Contempt Against Lavabit, Doesn’t Decide Gov’t Access to Encryption Keys
Yesterday, Ladar Levinson, Lavabit’s owner and operator, came forward to explain why he felt he had to shutter the company. The DOJ’s legal blitz against him comes off as, in the words of Boing Boing, both Kafkaesque and Orwellian.
In the first two weeks, I was served legal papers a total of seven times and was in contact with the FBI every other day. (This was the period a prosecutor would later characterize as my “period of silence”.) It took a week for me to identify an attorney who could adequately represent me, given the complex technological and legal issues involved – and we were in contact for less than a day when agents served me with a summons ordering me to appear in a Virginia courtroom, over 1,000 miles from my home. Two days later, I was served the first subpoena for the encryption keys.
With such short notice, my first attorney was unable to appear alongside me in court. Because the whole case was under seal, I couldn’t even admit to anyone who wasn’t an attorney that I needed a lawyer, let alone why. In the days before my appearance, I would spend hours repeating the facts of the case to a dozen attorneys, as I sought someone else that was qualified to represent me. I also discovered that as a third party in a federal criminal indictment, I had no right to counsel.
In Virginia, the government replaced its encryption key subpoena with a search warrant and a new court date. I retained a small, local law firm before I went back to my home state, which was then forced to assemble a legal strategy and file briefs in just a few short days. The court barred them from consulting outside experts about either the statutes or the technology involved in the case. The court didn’t even deliver transcripts of my first appearance to my own lawyers for two months, and forced them to proceed without access to the information they needed.
Then, a federal judge entered an order of contempt against me – without even so much as a hearing.
These legal machinations, essentially bullying Levinson into compliance as he tried to put together a legal defense for his business, are not the way to ensure Courts will intelligently decide important questions of law and policy which will affect the privacy and security of hundreds of thousands of customers of Lavabit–nevermind one which would determine ability of other secure communications service providers to operate in the United States.
The DOJ may respond that it needed the information to investigate Snowden. But at this point, the government already knew who Snowden was, where he was, and that the documents he’d taken were out of his hands and in the control of journalists. Perhaps they were searching for evidence that Snowden was in contact with unsavory characters, but that fishing expedition is focused more on gathering information in the hopes of publicly denigrating Snowden’s motives than capturing him or securing legitimately classified information. In any case, the intelligence community appears able and willing to smear Snowden despite the absence of any evidence of his disloyalty.