Writing in the Guardian, Lavabit founder Ladar Levison recounts the events that led to his decision to shutter his company in August 2013. Lavabit provided secure, private email for over 400,000 people, including Edward Snowden, and the legal process by which the FBI sought to spy on its users is a terrifying mix of Orwell — wanting to snoop on all 400,000 — and Kafka — not allowing Levison legal representation and prohibiting him from discussing the issue with anyone who might help him navigate the appropriate law.
Levison discloses more than I've yet seen about the nature of the feds' demands, but more important are the disclosures about the legal shenanigans he was subjected to. In fact, his description of the legal process is a kind of bas relief of the kind of legal services that those of us fighting the excesses of the global war on terror might need: a list of attorneys who are qualified to represent future Lavabits, warrant canaries for the services we rely upon; and, of course, substantive reform to the judicial processes laid out in the Patriot Act.
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. After all, only my property was in jeopardy – not my liberty. Finally, I was forced to choose between appearing alone or facing a bench warrant for my arrest.
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.
But the judge created a loophole: without a hearing, I was never given the opportunity to object, let alone make any any substantive defense, to the contempt change. Without any objection (because I wasn't allowed a hearing), the appellate court waived consideration of the substantive questions my case raised – and upheld the contempt charge, on the grounds that I hadn't disputed it in court. Since the US supreme court traditionally declines to review decided on wholly procedural grounds, I will be permanently denied justice.
[Ladar Levison/The Guardian]