From: Ulex Europae
Secrets, lies and Snowden's email: why I was forced to shut down Lavabit
For the first time, the founder of an encrypted
email startup that was supposed to insure privacy
for all reveals how the FBI and the US legal
system made sure we don't have the right to much privacy in the first place
By Ladar Levison
May 20 2014
http://www.theguardian.com/commentisfree/2014/may/20/why-did-lavabit-shut-do...
My legal saga started last summer with a knock at
the door, behind which stood two federal agents
ready to 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 including Edward Snowden,
according to news reports 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 hand
the US government access to all of the messages
to and from all of my customers as they
travelled between their email accounts other providers on the Internet.
But that wasn't enough. The federal agents then
claimed that their court order required me to
surrender my company's private encryption keys,
and I balked. What they said they needed were
customer passwords which were sent securely
so that they could access the plain-text versions
of messages from customers using my company's
encrypted storage feature. (The government would
later claim they only made this demand because of my "noncompliance".)
Bothered by what the agents were saying, I
informed them that 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, ending not only my
startup but also destroying, bit by bit, the very
principle upon which I founded it that we all
have a right to personal privacy.
In the first two weeks, I was served legal papers
a total of seven times and was in contact with
the FBI every other day. (This was the period a
prosecutor would later characterize as my "period
of silence".) 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.
[snip]
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Jim Bell's stuff below:
I wonder if Ladar Levison could have done the following:
1.Written up all documents he had been served with (even if ostensibly "secret" ) as "exhibits" in a lawsuit,, perhaps in a State court.
2. Filed it in a State court.
2a. He might "serve" it on someone, not a party to any Federal action.
3. It would be then "Instantly" published in on the Internet, before the State court could have entered any sort of "under seal" order for those documents. He would be publishing as-filed State Court filings; presumably he would be entitled to do so, even if they were copies of other documents.
Myself, I feel that no court can legitimately have any legal authority to order anyone to not speak about a legal proceeding. It's easy to explain why: The First Amendment, and the well-known prohibition against prior restraint, etc. But the reality is that courts have developed the idea that "order" the "sealing" of documents. I don't have an argument with an idea that a court can order an employee of government to not speak, precisely because he IS a government employee. But Mr. Levison wasn't, and isn't a government employee.
Would the procedure I described above 'get around' the law?
Jim Bell
