[Rushtalk] Lvabit persecution continues
Carl William Spitzer IV
cwsiv at copper.net
Tue Jul 15 07:29:55 MDT 2014
May 20th, 2014
My Fellow Citizens,
My legal saga started last summer with a knock at the door, behind which
stood two federal agents ready to serve me with a court order requiring
the installation of surveillance equipment on my company’s network.
My company, Lavabit, provided email services to 410,000 people, and
thrived by offering features specifically designed to protect the
privacy and security of its customers. I had no choice but to consent to
the installation of their device, which would have provided the
government with access to all of the messages, for all of my customers,
as they travelled to and from other providers on the Internet.
But that wasn’t enough. The federal agents also said their court order
required me to surrender the company’s private encryption keys, and I
balked. What they claimed to need were customer passwords, which were
sent securely, so they could access the plain-text of messages for users
taking advantage of my company’s encrypted storage feature. (The
government would later claim they only demanded the encryption keys
because of my "noncompliance".) I didn’t realize until I retained an
attorney that what the agents proposed would have exceeded their
Bothered by what the agents were saying, I informed them I would first
need to read the order they had just delivered and then consult with an
attorney. The feds seemed surprised by my hesitation.
What ensued was a flurry of legal proceedings that would last 38 days.
When the dust settled I found myself the owner of a $10,000 civil
contempt fine, my business shut down, and bit by bit, the very principle
upon which I founded it – that we all have a right to personal privacy,
slipping quickly away. (To appreciate just how fast the case moved,
consider the median timeframe for a similar proceedings was 9.7 months
The government lawyers tried to overwhelm me. In the first two weeks, I
was served court orders a total of seven times – leading to contact with
the FBI every other day. (This was the stretch a prosecutor would later
characterize as the "long period of silence".) It took a week for me to
identify an attorney who could adequately represent me given the complex
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 home). Two days later, after admitting their
demand to my lawyer, I was served a subpoena for the encryption keys –
also marking the first time they put their demand in writing.
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 admit to
anyone who wasn't a lawyer that I needed help, 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. Thus my pleas for more
time were denied. After all, only my property was in jeopardy – not my
liberty. My right to a “fair hearing” was treated as a nuisance, easily
trampled by a team of determined prosecutors. In the end, I was forced
to choose between appearing alone, or face a bench warrant for my
When I appeared in Virginia, the government replaced their subpoena for
the encryption key with a search warrant and a new court date. I
retained a small local law firm before returning home, and they took on
the task of assembling a legal strategy and filing briefs in the few
short days available. The court barred them from consulting outside
experts, making it difficult to understand the complex legal and
technological issues involved. Even a request to discuss the case with
members of Congress was denied. To make matters worse, the court
wouldn’t deliver transcripts for my first appearance for another two
months. My legal team was forced to proceed without access to
information they needed.
Then, a federal judge entered an order of contempt against me – without
even a hearing. Let me be clear. I did not devoted 10 years of my life
to building Lavabit, with its focus on privacy, only to become complicit
in a plan which would have meant the wholesale violation of my
customers’ right to privacy. Thus with my options in court exhausted,
the decision was easy. I had to shut down my service. Placing my faith
in the integrity of the appeals process.
When the judge granted the contempt charge unopposed – ignoring my
attorney’s request to dispute the government’s claims – he created a
loophole. I was never given an opportunity to object, let alone provide
a meaningful defense. An important point, since the contempt charge
endorsed new legal claims – reversing what the court had previously
indicated. Without an objection on the record, the appellate court would
rule that my right to an appeal had been waived – since the charges
hadn’t been disputed in district court. Given the Supreme Court’s
tradition of declining to review cases decided on procedural grounds, I
will likely be denied justice, forever.
The most important question raised by my appeal was what constitutes a
"search," i.e., whether law enforcement may demand the encryption keys
of a business and use those keys to inspect the private communications
of every customer, when they are only authorized to access information
belonging to a select few.
The problem here is technological: until a communication has been
decrypted and the contents parsed, it is impossible for a surveillance
device to determine which network connections belong to the targeted
accounts. The government argued that since the "inspection" would be
carried out by a machine, they were exempt from the normal
search-and-seizure protections of the fourth amendment.
More importantly, the prosecution argued the exemption was because my
users had no expectation of privacy, even though the encryption they
were trying to break was created specifically to ensure a users'
If my experience serves any purpose, it is to illustrate what most
already know: our courts must not be allowed to consider matters of
great importance in secret, lest we find ourselves summarily deprived of
meaningful due process. If we allow our government to continue operating
in secret, it is only a matter of time before you or a loved one find
yourself in a position like I was – standing in a secret courtroom,
alone, and without any of the unalienable rights that are supposed to
protect us from an abuse of the state’s authority.
Owner and Operator, Lavabit LLC
With my fight in court all but lost, I am focusing my attention on a
technical fix. Help me put control over who reads your email back into
your hands. Donate to the Lavabit Dark Mail Development Initiative
today. Because keeping your business your business is our business.
August 8th, 2013
My Fellow Users,
I have been forced to make a difficult decision: to become complicit in
crimes against the American people or walk away from nearly ten years of
hard work by shutting down Lavabit. After significant soul searching, I
have decided to suspend operations. I wish that I could legally share
with you the events that led to my decision. I cannot. I feel you
deserve to know what’s going on--the first amendment is supposed to
guarantee me the freedom to speak out in situations like this.
Unfortunately, Congress has passed laws that say otherwise. As things
currently stand, I cannot share my experiences over the last six weeks,
even though I have twice made the appropriate requests.
What’s going to happen now? We’ve already started preparing the
paperwork needed to continue to fight for the Constitution in the Fourth
Circuit Court of Appeals. A favorable decision would allow me resurrect
Lavabit as an American company.
This experience has taught me one very important lesson: without
congressional action or a strong judicial precedent, I would _strongly_
recommend against anyone trusting their private data to a company with
physical ties to the United States.
Owner and Operator, Lavabit LLC
Defending the constitution is expensive! Help us by donating to the
Lavabit Legal Defense Fund.
Via PayPal: here.
Or via bitcoin: 19gy9ifMJuHoRbVpXBgtf6NTAT6PiDb8SQ
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