Government Smacks Down Lavabit

Yesterday the Department of Justice filed a 60-page appellate brief in the Lavabit case that involves Ladar Levison. The short version: the DOJ says most of Levison’s arguments that are on appeal shouldn’t be considered, because they weren’t even raised in the lower court. As for the warrant that Levison was resisting, the one that sought access to Edward Snowden’s communications and, in the process, would have given the FBI access to all the encrypted communications flowing through Lavabit’s servers, thereby, in the view of Levison, violating the Fourth Amendment? Here’s what the DOJ says about that:

Just as a business cannot prevent the execution of a search warrant by locking its front gate, an electronic communications service provider cannot thwart court-ordered electronic surveillance by refusing to provide necessary information about its systems. That other information not subject to the warrant by locking its front gate, an electronic communications service provider cannot thwart court-ordered electronic surveillance by refusing to provide necessary information about its systems. That other information not subject to the warrant was encrypted using the same set of keys is irrelevant; the only user data the court permitted the government to obtain was the data described in the pen/trap order and the search warrant. All other data would be filtered electronically, without reaching any human eye. Finally, Lavabit’s belief that the orders here compelled a disclosure that was inconsistent with Lavabit’s “business model” makes no difference. Marketing a business as “secure” does not give one license to ignore a District Court of the United States.

The first point made by the DOJ, about the failure to make certain arguments in the lower court, is a crushing one. That’s a big mistake. It is worth noting that Levison’s attorney, Jesse Binnall, has a two-man firm and graduated law school in 2009.

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