Fourth Circuit Decision in Lavabit

Paul Rosenzweig
Wednesday, April 16, 2014, 2:33 PM
Readers will recall the Lavabit case in the Fourth Circuit, which I earlier described here, and here.

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Readers will recall the Lavabit case in the Fourth Circuit, which I earlier described here, and here.  Lavabit ran an encrypted email service allegedly used for communication by Edward Snowden.  As part of its investigation, the US government sought to have Lavabit turn over the private encryption SSL key that would have decrypted Snowden's mail (and also the mail of all 400,000 other Lavabit users).  Lavabit complied but in an obstructive manner (giving the SSL key on an 11-page 4 pt printout) and simultaneously shut down its service.  Lavabit and its founder Ladar Levinson were held in contempt and appealed that contempt citation to the Fourth Circuit. Today, the Fourth Circuit affirmed the contempt decision.  But the decision is less than it seems.  The case was tee-ed up as an opportunity to decide whether government investigative demands could trump encryption/privacy concerns.  Rather than decide the question, the court ruled that Lavabit and Levinson had failed to raise the substantial statutory and constitutional arguments when objecting to the investigative demands in the district court.  Having concluded that Lavabit waived the most important legal challenges, the court rather readily found the contempt citation to be justified.   Which proves, yet again, that bad lawyering loses every time. Jennifer Granick and Orin Kerr have similar thoughts with some useful links.

Paul Rosenzweig is the founder of Red Branch Consulting PLLC, a homeland security consulting company and a Senior Advisor to The Chertoff Group. Mr. Rosenzweig formerly served as Deputy Assistant Secretary for Policy in the Department of Homeland Security. He is a Professorial Lecturer in Law at George Washington University, a Senior Fellow in the Tech, Law & Security program at American University, and a Board Member of the Journal of National Security Law and Policy.

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