The owner of the encrypted email service provider that former National Security Agency contractor Edward Snowden was reportedly using, Lavabit, which shut down early in August, apparently made the decision to stop operating after receiving a “pen register” order and an order under the Stored Communications Act, according to a legal filing posted by POLITICO‘s Josh Gerstein.
The filing, which was submitted under seal September 27 to the US Court of Appeals for the Fourth Circuit, indicates that on June 10, 2013, Lavabit owner Ladar Levison received a 2703(d) order, which the American Civil Liberties Union (ACLU) describes as “a court order requiring disclosure of customer information from an electronic services provider upon a showing of ‘reasonable grounds’ to believe that the records “are relevant and material to an ongoing criminal investigation.” This was the order the government used to obtain Twitter data from three indviduals, who volunteered for WikiLeaks—Tor software developer Jacob Appelbaum, Icelandic parliamentarian Birgitta Jonsdottir and Roy Gonggrijp.
On June 28, 2013, Levison received a “pen register” order. According an ACLU lawsuit seeking Justice Department records on pen register and trap and trace device use, these devices are “powerful tools used by law enforcement agencies to intercept non-content information from electronic communications, such as the ‘to’ and ‘from’ lines of emails, the telephone numbers a person dials and those from which he receives calls and the IP addresses of websites a person visits. Pen registers and trap and trace devices have been used tens of thousands of times annually by law enforcement components within” the Justice Department. They are authorized under the Pen Register Act of 1986.
An “Order to Show Cause” was apparently issued on July 9, which suggests that either Levison or the government was asked to justify or explain something further to the court. A motion to unseal records was also denied on July 16 and an order denying multiple motion, probably submitted by Levision, were denied on August 1.
On August 5, a general court order was issued. It was three days later that Levison made the announcement that, “After significant soul searching,” he had “decided to suspend operations.” He stated, “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.”
Levison also declared, “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.”
Indeed, as Gerstein notes, it is difficult to tell if what led to the shutdown is a result of the government’s pursuit of Snowden. It was June 9 that Snowden went public as the whistleblower behind the stories The Guardian had been publishing on NSA surveillance. On June 14, a criminal complaint charging Snowden with violating the Espionage Act, theft of government property and willful communication of classified communications intelligence to an unauthorized person was signed. But nowhere in the filing is Snowden’s name mentioned.
In August, Snowden called Levison’s decision to take a stand and shut down Lavabit “inspiring.” He added:
Ladar Levison and his team suspended the operations of their 10 year old business rather than violate the Constitutional rights of their roughly 400,000 users. The President, Congress, and the Courts have forgotten that the costs of bad policy are always borne by ordinary citizens, and it is our job to remind them that there are limits to what we will pay.
America cannot succeed as a country where individuals like Mr. Levison have to relocate their businesses abroad to be successful. Employees and leaders at Google, Facebook, Microsoft, Yahoo, Apple, and the rest of our internet titans must ask themselves why they aren’t fighting for our interests the same way small businesses are. The defense they have offered to this point is that they were compelled by laws they do not agree with, but one day of downtime for the coalition of their services could achieve what a hundred Lavabits could not… [emphasis added]
Because the orders are under seal, Levison cannot publicly discuss or challenge them. He is gagged from exercising his First Amendment rights and his lawyer appears with him in interviews to ensure he doesn’t say something that will put him in legal jeopardy.
In fact, Levison said on “Democracy Now!,” on August 13, “There’s information that I can’t even share with my lawyer, let alone with the American public. So if we’re talking about secrecy, you know, it’s really been taken to the extreme. And I think it’s really being used by the current administration to cover up tactics that they may be ashamed of.”
His lawyer, Jesse Binnall said, “It’s a very unfortunate situation that, as Americans, we really are not supposed to have to worry about. But Ladar is in a situation where he has to watch every word he says when he’s talking to the press, for fear of being imprisoned. And we can’t even talk about what the legal requirements are that make it so he has to watch his words. But the simple fact is, I’m really here with him only because there are some very fine lines that he can’t cross, for fear of being dragged away in handcuffs. And that’s pretty much the exact fears that led the founders to give us the First Amendment in the first place.”
The secrecy in proceedings is so extensive the identities of people involved in this litigation are secret. The only hint that this involves Lavabit is that Binnall’s name appears in the “Certificate of Service” portion of the filing.
This gives Americans a peek through a keyhole of a door the government doesn’t want Americans to know exists. If Levison cracks the door open even a little bit to let citizens see what their government is doing, it is a virtual guarantee that there’ll be consequences.