Fwd: Secrets, lies and Snowden's email: why I was forced to shut down Lavabit

[jim bell]

From: Ulex Europae <europus at gmail.com>

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-down-snowden-email>

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]
------------------
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
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