Lavabit’s Levison’s Really Bad Call

Lavabit’s Ladar Levison asked the right question, but he did it in the wrong place and way too late.

“How as a small business do you hire the lawyers to appeal this and change public opinion to get the laws changed when Congress doesn’t even know what is going on?” Mr. Levison said.

Now, he’s no longer a bit player in the secure e-mail industry, but a privacy hero, a government target and a guy without a job.  Before Edward Snowden became a public enemy, he used Lavabit, a fledgling company that took years to generate enough revenue to let Levison quit his day job.

Mr. Levison, who studied politics and computer science at Southern Methodist University, started Lavabit in April 2004, the same month Google rolled out Gmail. To pay his bills, he worked as a Web consultant, helping develop Web sites for major brands like Dr Pepper, Nokia and Adidas. But by 2010, the e-mail service had attracted enough paying customers to allow Mr. Levison to turn to Lavabit full time.

And then he met the government, which had some “requests” of him.  It came out when the requests related to Snowden, but by that time, Levison wasn’t a virgin.

Mr. Levison was willing to allow investigators with a court order to tap Mr. Snowden’s e-mail account; he had complied with similar narrowly targeted requests involving other customers about two dozen times.

But having broken the wall of privacy, the government wanted more. The government always wants more.

But they wanted more, he said: the passwords, encryption keys and computer code that would essentially allow the government untrammeled access to the protected messages of all his customers. That, he said, was too much.

The New York Times reveals as much of the backstory as Levison is now allowed to reveal, and it’s an ugly story all around.

He had been summoned to testify to a grand jury in Virginia; forbidden to discuss his case; held in contempt of court and fined $10,000 for handing over his private encryption keys on paper and not in digital form; and, finally, threatened with arrest for saying too much when he shuttered his business.

It’s not that he refused to hand-over the encryption keys for the secure e-mail accounts in Lavabit’s stable, but he tried to game the government by doing it on paper rather than digitally.

When it was clear Mr. Levison had no choice but to comply, he devised a way to obey the order but make the government’s intrusion more arduous. On Aug 2, he infuriated agents by printing the encryption keys — long strings of seemingly random numbers — on paper in a font he believed would be hard to scan and turn into a usable digital format. Indeed, prosecutors described the file as “largely illegible.”

For this, he was sanctioned $5,000 a day, and he caved in two days. As the quote that starts this post questioned, what else could he do?  He was represented by Virginia small business lawyer Jesse Binnall, a 2009 grad of George Mason Law School, who was thrust into one of the most difficult situations possible, defending a client caught between the government’s rock and a hard place. It was a place he shouldn’t have been.

For all the glorious claims of transparency, availability, freedom of information used to justify the worst and lowest use of the internet, Levison’s question is infuriating.  How can he, and so many other young, smart and savvy people be so monumentally clueless when it comes to managing the nexus of technology and law?

This matters because they are screwing up the world for the rest of us, for everyone.

Choices being made by the tech-savvy and law ignorant are creating the precedents, while destroying themselves, that form the foundation for computer law going forward.  We may be saddled with bad law for decades, forever, because of poor, thoughtless, immature, decisions.  This is where the future of internet privacy dies.

The answer to Levison’s question at the top of this post is to start by reaching out to lawyers competent to handle the representation in the first place, and at each subsequent stage as need be.  What the hell was he thinking?  I will avoid the nearly irresistible compulsion to compare the hundred calls I’ll get this week to find out if I can handle a public urination case in Peoria with Levison’s decision to place his life, and Snowden’s, and potentially the future of secure email communications for everyone on the entire friggin’ internet, in the hands of a kid lawyer who has zero experience dealing with the feds.

We need smarter heroes.  We need heroes who won’t squander the opportunity to get something right.  If this doesn’t change, fast and hard, it is not going to end well for any of us, as we will be saddled with a state of law where the government runs roughshod over anyone and everything that stands in its virtual way.

And when the tech-savvy grow up and come to realize how they screwed it all up, for themselves and everyone else, we will be facing egregious precedent, fighting again the uphill battle to undo the damage caused by the early targets and the weakest links.

 

 

 

 

48 comments on “Lavabit’s Levison’s Really Bad Call

  1. Mark Draughn

    Do you think the government is picking on “tech-savvy and law ignorant” types in part because it will set government-friendly precedents? Do they think that strategically? Or is it more a case of them going after people who they can bully and getting good precedents is a side effect? Or is it just some random very bad luck that these things are happening?

    1. SHG Post author

      I don’t think the government is that tactical in its initiation of action and choice of targets. More to the point, they government can’t know in advance that Levison won’t find a highly competent lawyer to take on his representation. But I do think they’ve come to realize that their targets in these matters tend to be too smart for their own good and end up making themselves vulnerable by immature choices. It’s happened too many times now to not see the trend.

      1. Rick

        The problem is that tech guys at that level tend to think that they’re brilliant at everything. They also tend to be very idealistic. (At least that’s been my experience, and as a former high(ish)-level tech guy, I’ve known more than a few.)

        And that’s the cause of the trend.

        When they hire a lawyer, it seems to me, one of the things they look for is how well they think they’ll be able to control what is happening. I’m going to guess that a lawyer with less experience is easier to control than one with more experience.

        It never occurs to many tech people that they might need a lawyer who knows more about the law than they think they know, because they think they know enough.

        1. SHG Post author

          That’s been something of a recurring theme with the prosecutions of tech guys. I think that has a lot to do with Weev’s conviction.

  2. Dan

    Is it possible that some of these tech entrepreneur dudes hire 2009 grads to handle their stuff because they mistakenly think that because in their field, anyone over 29 is a dinosaur who doesn’t know what they’re doing, it must be the same for every other field? In law, experience matters. Not so in everything else.

    1. SHG Post author

      That was my point in including the link in the post above to my earlier post on why hackers rarely win. My suspicion is that they don’t appreciate the value of experience in law, they are more comfortable with people their own age who speak the same language (“awesome, dude”) and think technical savvy with computers more important than legal savvy. Little do they know that not all gray beards are total Luddites, or that experience matters in the law.

      1. Dan

        I went back and read your older post, which cited to an Orin Kerr post that I remember reading. The whole thing makes me think of the scene in Bonfire of the Vanities where the protagonist seeks advice from his fancy big firm trust and estates lawyer who sends him on down to the sharp dressed guy with the Irish accent whose character bore a striking resemblance to your old office-mate.

        1. SHG Post author

          A striking resemblance indeed. Note how the big firm trust and estates lawyer know better than to take care of it himself or send him to the new-hire white collar “specialist” who came out of the US Attorney’s office the week before.

  3. Jim Tyre

    Scott,

    Without commenting on Binnall, Levison is now also represented by former EFF senior staff attorney (and now one of my fellow EFF Fellows) Marcia Hofmann. No one would accuse Marcia of having a gray beard (or any, actually), but she’s been dealing with these kinds of issues for a very long time, and is extremely competent.

    (Not that I have anything against gray beards. Mine is gray.)

    1. SHG Post author

      I’m sure Marcia is competent at computer law, but her background isn’t in criminal law and she hasn’t spent her career telling the United States Attorney where to shove it when they threaten criminal prosecution and preventing the sort of coercion that made Levison give it away in the first place. On top of that, this needed to be addressed properly from the outset, before the damage was done.

      None of this is to suggest that the efforts of the EFF aren’t appreciated, and better than having no one capable of dealing with this situation (even if the EFF is cause-directed, rather than client-focused), but it’s not the same as having the right attorney when needed.

      1. Jim Tyre

        Scott,

        No argument that it should have been handled better at the outset.

        However:

        First, the matter is now in the Fourth Circuit Court of Appeals. The skill set for handling an appeal is not the same as for handling a matter in the district court.

        Second, of course EFF is cause directed. But that is in no way inconsistent with being client focused. At least not the way we do it, anyway. Obviously, I won’t get into privileged details, but having been on a number of EFF litigation teams, I can assure you that the clients take precedence over the cause.

        Third, in any event, Marcia is not taking on this matter as an EFF Fellow. Like me, she does work with EFF and has her own practice. This is through her practice. I mentioned that she and I are both EFF Fellows mostly just to give you a bit of extra info, particularly since that was (I think) the first time I’ve commented on your blog. If I gave you the wrong impression, it was inadvertent.

        1. SHG Post author

          Lavabit is gone. Levison gave up 13 (at least) of his “secure” customers, including Snowden. What will the Circuit do for them? And while Marcia and the EFF might be fine dealing with whatever detritus issues remains, that has nothing to do with the problems faced when the government put the gun to Levison’s head. I trust she will do great before the Circuit. What will she do about the dead bodies left behind? That’s what this post is about.

          1. Ultraviolet admin

            Part of the problem is here Levison was running a business and didn’t realize when he was getting into criminal matters, nor did his counsel. The EFF approach might of worked had they come in earlier to fight (they do have a good history in criminal cases by getting the graybeards to fight the battles experience requires, and more importantly by interacting with local counsel to find the right graybeards for the jurisdiction since most of the time the EFF works by using their master list of attorneys by region and specialty).

            The biggest thing with this sort of cases is getting younger corporate counsel, which are more likely to work with this sort of company to realize what sort of crap is hitting the fan early.

            1. SHG Post author

              I have to disagree with pretty much everything you say here, other than Levison not realizing what he was getting into. Beyond that, no, he needed an experienced criminal defense lawyer dedicated to him rather than any cause. As for his biz lawyer, if he wasn’t capable of realizing that it’s a serious problem the government threatens to take down your client, then he needs a new career.

              Edit: Jim Tyre just pointed out to me that the EFF has Hanni Fakhoury on staff, who is an experienced criminal defense lawyer.

    2. Jordan

      I think when we take a case on for the cause, rather than the client, it poses a huge ethical conflict between the lawyer and client.

      What is hurting the cause is better for the client? Would you allow the adverse party to gain an illegal advantage if it benefitted your client?

      Representation based on pursuing a cause generally troubles me. Our obligation is to our clients, not to make the world a better place. While I generally hope to do both, it’s not always possible. And when there is a conflict, as a lawyer we must err on the side of the client.

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  5. Gerard Pierce

    The article and the commenters fail to put themselves in Levinson’s shoes. You’re looking a guy who is far from rich who has no contacts with the kind of attorney that he needs.

    If he did have the name of a competent firm, their first response would probably be: “Write us a retainer check for $50,000 and we’ll get right on it.”

    I think this is what’s called a no-win situation.

    1. SHG Post author

      Your assumptions are flawed. There are a number of fairly well-known and well-regarded lawyers who are easily findable who would have been more than happy to take Levison’s call and help him out. He didn’t. Most would be more than happy to provide free advice, and given his financial condition, low cost or pro bono representation. But he didn’t.

      At the initial stages, where he was receiving demands for access by the government, even a “greedy, blood-sucking lawyer” wouldn’t charge a great deal to advise him on handling matters. He wasn’t under indictment, but needed some very firm help. It may have eventually ended up in litigation, whether criminal or civil, but it wasn’t at that stage, and the legal fees would have been substantially less than $50k. But he wouldn’t know this because he never asked. Your assumption, which may well have been his as well, is wrong, and your perpetuating a grossly mistaken assumption just perpetuates the error, to everyone’s detriment.

      1. cenobite

        And why is it that his assumptions were flawed?

        Why is it that he (and his small business attorney) didn’t find “a number of fairly well-known and well-regarded lawyers who are easily findable”?

        Clearly they are not as “easily findable” as all that.

        You seem to be blaming Mr. Levinson for not being a savvy legal customer. You haven’t convinced me. Mr. Levinson knew his business was running an internet service and by all accounts did it well. It was the legal profession’s business to help him find the right professionals to defend him, and it failed.

        1. SHG Post author


          You haven’t convinced me.

          So? Convincing you matters? I can explain it to you. I can’t understand it for you.


          It was the legal profession’s business to help him find the right professionals to defend him, and it failed.

          There may be a planet where this sentence makes sense, but not this one. Oh wait, you’re probably one of those entitled Millennials who thinks everything is someone else’s responsibility. Never mind. Levison needed a lawyer. It was Levison’s responsibility to find a lawyer. Should lawyers have knocked on Levison’s door every day just in case he might be in need of their services? See how absurd that sounds? That’s because it is.

          Your attempt at logic, that because he didn’t find appropriate counsel means they “clearly” weren’t “easily findable” fails the test. Post hoc ergo propter hoc. Sorry, but the thing about logic is that it’s just, well, logical.

  6. Owen Crump

    Perhaps Levison considered the use of attorneys in the early going. I as a small business owner starting a business did the same. Perhaps also those attorneys simply wanted too much money to advise Levison on anything and particularly what was yet to be a problem. 20/20 hindsight is a wonderful thing.

    1. SHG Post author

      There are any number of “perhaps” explanations, but when the United States Attorney is demanding disclosure and threatening prosecution, it’s not all that hard to figure out. Tens of thousands of people, many of whom are pretty dumb, manage to figure out what sort of lawyer is needed to help them. Perhaps Levison was stupider than them, but it’s highly unlikely.

      While it’s possible, it’s improbable. When you hear the sound of hoofbeats, don’t assume it’s a zebra.

  7. YankeeFrank

    It amazes me that you think average people even have a way to afford, let alone identify, who would be the perfect lawyer to handle such a case. Shouldn’t instead your ire be directed at the government that steamrolls our rights with no restraints whatsoever, especially given how judges these days seem to be all too willing to roll over and piss themselves to please these rabid prosecutors when the two “magical” words “national security” get waived in their faces? The system is broken, and its not because the people are too dumb to find and pay the perfectly experienced attorney. Direct your criticism at the juggernaut that is the “Justice” department.

    1. SHG Post author

      It amazes me how often Darwin is disproven. Looks like we’re both amazed now.

      If you previously read pretty much anything else here, you might find that the government gets criticized quite a bit around here. But that would require effort and thought on your part, and you might hurt something. In the meantime, being critical of the government and Levison isn’t mutually exclusive.

      Edit: Just so you know, using a pseudonym and refusing to give an email does not make your amazement particularly interesting. Get the idea?

  8. TimmyB

    Yankeefrank and Gerard Pierce are right, Criminal attorneys who are experienced in fighting federal prosecutors cost tens, if not hundreds of thousands of dollars.

    It’s not as if Lavabit was Google and had a few million dollars lying around with which to fight the U.S, Government. If the author thinks lawyers and fights cheap and easy then the author can get in touch with Levison and agree to pay his legal bills.

    And how does one go about finding a lawyer experienced infighting these NSA subpoenas? You get a piece of papers stating give the Government this and that, and you can go to prison if you tell anyone about is. I can just see someone trying to get a lawyer in this situation, “Hello, I need a lawyer for something I can’t tell you about.” “Can you take my case or recommend someone specialized in the area I can’t discuss who will?” What a sick joke.

    In sum, the sole thing the author has show in this article is a stunning lack of knowledge about the cost of litigation..

    1. SHG Post author

      Somehow, this doesn’t appear to register on your (or your pals’) radar that this is a criminal defense blog. I’m a criminal defense lawyer, and have been for more than 30 years. The vast majority of readers here are involved in criminal law, whether as defense lawyers, prosecutors or judges, and every one of whom is involved in criminal law. And yet, a few people who are neither lawyers nor involved in criminal defense believe they know more about it, even though they know absolutely nothing about it, than anyone else. So you’re going to tell criminal defense lawyers what they charge?

      You truly have no idea how utterly clueless you are, and yet Dunning-Kruger prevents you from either learning better or, at the very least, coming to the realization that your absurd assumptions may not be as brilliant as you think. Instead, you need to insist that you’re right, to the shock, appall and amusement of people who actually know. You aren’t savvy enough to either realize the error of your assumptions or that you’re a non-lawyer telling lawyers about lawyers. It’s inane.

      The upshot is that you may offer a deeper insight into how Ladar Levison screwed up so badly. He, like you, may have simply assumed he knew “things” when he was as monumentally clueless as you. And instead of trying to do the right thing, went blindly and ignorantly into the night to his own destruction and the harm of his customers.

      But make no mistake, you are in a room where you, YankeeFrank and Gerard Pierce, are by far more ignorant than everyone else, and only the three of you don’t realize it. And you bring disgrace on your politics by not merely being so stupid, but by pounding the table to make sure everyone knows just how stupid your are. Well done.

      Even worse, your insistence on perpetuating your ignorance may explain why things don’t get any better for guys like Levison. The next guy (and there will be a next guy) will be just as stupid, believing nonsensical rambling like yours and never trying because people like you keep spreading ignorant myths to prove you’re right rather than learning better. In criminal defense, we see more people crash from their own ignorance than from anything the police or government can do to them. Does it make you happy that you are part of the reason why?

      1. TimmyB

        First, responding to a subpoena isn’t a criminal matter. Or do you believe that every person or organization that receives a subpoena should hire a criminal lawyer?

        Second, you fail to answer the question of how does a lay person find a lawyer to fight matters that are felonies to reveal? Levison said this week that there are things the government says he still can’t discus with his lawyers. Why don’t you provide a list of the lawyers in his area who are experts in these cases, and their hourly rates if you think it’s so easy and inexpensive?

        Or you can just continue with the over-the-top ad homonym attacks.

        1. SHG Post author

          Timmy. Cool name. First, it’s spelled hominem, not homonym. Second, the “solution” isn;’t a list of the lawyers in his area with their hourly rates. You’re a moron. Maybe Levison is too. I don’t know. But there is this thing now called the “internet.” There was this thing before, called the “yellow pages.” They are filled the lawyers names and other information. And before that, a person could contact a lawyer and ask for a referral. They could do it on horseback many year ago. Today, they can do it on telephones. Or emails. Or text messages, even twits.

          For the last 30 years, people who aren’t particularly bright have managed to find lawyers. They do it all the time. They do it pretty damn well. They are hardly rich, yet manage to find lawyers who will represent them. It’s like a miracle. Rocket science. Brain surgery.

          And yet you, all huffy, want to argue how hard and expensive it is. That’s because you’re a moron. I’m on the internet. You found me. A thousand people a week call me looking for help. Yet you think it would be utterly impossible for Ladar Levison to do so? And if not me, there’s Ken, or Brian, or Mark, or Rick, or Jamie. There are so many lawyers who would have been happy to either help him or steer him in the right direction that it’s nearly impossible not to trip over one. And yet you want to argue how hard and expensive it is.

          I know why you want to argue that. It’s because you are a moron. But here’s the shocker. Even morons are able to do it. I know because they call me (and ken, Brian, Mark, Rick and Jamie) all the time. Every day. Even morons can find us. Yet Levison couldn’t? You can’t? That makes you a very special moron.

          1. Phil McClelland

            I’m a “hacker”, work at a startup in Austin, follow the SV scene, etc.

            My initial reaction to your post was anger, but reading through to the end of this comment thread has made me reconsider that reaction. At the end of the day the hacker crowd is obsessed with youth and “disruption” and arrogantly assume our “innovative” ideas are desperately needed in all professions. If graybeards don’t like our advice, it’s because the are too old to realize the gift we’ve given them by randomly commenting on posts such as this in a domain that we know nothing about.

            Sadly there is no sign of this toxic hacker culture growing up. Maybe the only reason I’m even acknowledging my folly is that I’m basically a graybeard myself (i.e. mid thirty). The only way I see the hacker culture changing is another event as damaging as the .com crash.

            1. SHG Post author

              I’m not insensitive to hacker culture, and I wouldn’t go so far as to call it toxic, though I keep wondering why such smart people aren’t connecting the dots between culture and the problems some are facing with the law. The hope is to save hackers, and as much of hacker culture as possible, from the government, but hackers aren’t cutting it playing the game on their own and, as you know, won’t or can’t work with lawyers.

              We’re not their enemy. When Swartz committed suicide, a lot of people became “aware” of how harsh the government can be. They misinterpreted it because of the spotlight effect, and spread the misinterpretation throughout hackerdom with the help of some lawyers who catered to their sensibilities. This became part of their foundational belief about the system, and it was just misguided. Trying to get people to see reality when they believe the earth is flat is very hard to do.

              If they’re as smart as they think they are, they will come to realize that they aren’t the center of the universe. If not, twenty years from now they will look back at how badly they screwed things up and at the miserable world they helped to create through their childish arrogance.

              Lawyers can help, but only if they know enough to work with us.

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  14. @SoapboxOrator

    Scott, thanks for taking the time to respond to me via Twitter. I have a great respect for the work you do, and cases like Lavabit definitely garner interest in an arcane area of law that the public otherwise does not follow.

    My comment on VC was about waiver specifically with regards to the pen/trap order. Ladar argued personally himself in his first appearance in district court that he complied with the pen/trap order by offering to deliver unencrypted data to the government, making the SSL keys unnecessary. The DOJ’s own filing says that Lavait offered to deliver unencrypted data daily. So unless I am mistaken about the concept of waiver, the district court record shows that Lavabit made the argument that he was in compliance with the pen/trap order by offering to deliver unencrypted data.

    The reason I think this is important is that if Lavabit is deemed to have lawfully complied with the pen/trap order, then this puts the constitutionality of the search warrant in a whole different light, since search warrants must not be a general warrant, must be reasonable, must be narrowly tailored, etc. Which is of course a whole separate argument that Lavabit has to win. But it seems like the government would have a harder time making that argument if the court has already determined Lavabit’s offers to comply with the pen/trap order were valid. Since how reasonable and narrowly tailored is a search warrant for SSL keys when the defendant is already delivering the requested data in unencrypted form.

    Some of Lavabit’s arguments in appeals court may be new, but it seems like there’s enough in the district court record for Lavabit to win the case, though some specific new arguments made on appeal may be treated as having been waived.

    1. SHG Post author

      Yes, you misunderstand what waiver (in this context, which can also be described “failure to preserve”) means. It does not mean that someone wandered somewhere in the vicinity of an issue. It means that a particularized legal argument not specifically articulated in such a way that the court below could rule upon it in the same fashion as the appellate court is lost. Levison’s attempt to negotiate an alternative means of compliance has nothing whatsoever to do with the waiver argument, and subsequently to sell the court that his offer was close enough, has absolutely nothing to do with any legally cognizable argument whatsoever.

      This is not about horseshoes, but the law, and Levison doesn’t get intellectual dispensation for having no clue what legal argument could have or should have been made. He wasn’t in the ballpark. He wasn’t in the same city as the ballpark. This is why geeks need competent lawyers. Desperately.

      Edit: By the way, all areas of law should be considered arcane by non-lawyers. It’s not about how smart someone is, but about whether they have substantive knowledge. Almost everything I read by non-lawyers is wrong. Sometimes just a little bit. Sometimes dangerously so. But almost always wrong.

        1. SHG Post author

          Not the specifics, which typically tend to be a mash of ideas that don’t have any particular connection to any legal concept but seem to make sense if you squint and turn your head sideways.

          What I think he’s trying to argue is that Levison’s arguments about his attempt to comply are sufficiently close to something remotely resembling a valid legal argument, but he confuses the fact-based aspect of Levison’s position with the legal argument that might otherwise apply. Remember, non-lawyers rarely appreciate the distinction between factual contentions and legal argument. There is no reason why they should.

      1. @SoapboxOrator

        Levison did say he was challenging the idea that the pen/trap order actual required the delivery of the SSL keys.

        “MR . LEVISON : Sorry . I have always agreed to the
        installation of the pen register device . I have only ever
        objected to turning over the SSL keys because that would
        compromise all of the secure communications in and out of my
        network, including my own administrative traffic.
        THE COURT : Well, didn’t my order already include that?
        MR . LEVISON : I do not believe so, sir .”

        Binnall also argues in a footnote of one of his motions “Mr. Levinson’s subpoena to appear
        before the grand jury was withdrawn, but the government continues to seek the encryption
        keys. Lavabit is only seeking to quash the Court’s command that Mr. Levinson provide the
        encryption keys.”

        Binnall also says, “For the foregoing reasons, Lavabit and Mr. Levinson respectfully move
        this Court to quash the search and seizure warrant and grand jury subpoena.
        Further [i.e. separately], Lavabit and Mr. Levinson request that this Court direct that Lavabit
        does not have to produce its Master Key.”

        Clearly, these are but summary statements and are nothing compared to a real legal brief expounding on the many ways in which he complied with the pen/trap order. It was a huge mistake for Binnall not to challenge the pen/trap order argument directly in his motion to the district court.

        Since preservation requires particularized arguments, as you have clarified, I do not hold high hopes for Lavabit based upon what I see here, unless the court takes up some of these arguments using its own discretion.

        1. SHG Post author

          I assume you still aren’t getting the distinction between factual contentions and legal arguments. For example, the legal argument that would have gone with Levison’s motion to quash the subpoena might be: Compliance with the subpoena would result in the inability of Lavabit to continue as an ongoing concern. Therefore, it is unreasonable and oppressive pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure and the Supreme Court’s holding United States v. Smith (I just made the case name and holding up), which provides that if compliance with a subpoena will result in the impossibility of conducting a lawful business, and the movant can demonstrate by a preponderance of the evidence that the subpoena will be the proximate cause of the business’ failure, it is unreasonable and oppressive pursuant to the Rule.

          See the difference?

          1. @SoapboxOrator

            Yes, agreed.

            So I think my arguments on VC were outlines for legal arguments on the pen/trap order that should have been made. But for those arguments to be preserved, they had to have been made in district court already.

            The other prong of the case is the search warrant, and Binnall did make legal arguments against the search warrant in district court, so those are preserved.

            But as far as I can see, DOJ’s argument interpreting the pen/trap order as compelling the SSL keys to be turned over was never formally responded to by Binnall in district court with legal arguments.

            1. SHG Post author

              Not having all the briefs in front of me, and not being willing to reread everything to respond to your comment (this case isn’t the center of my universe), I don’t recall the specifics of what was or wasn’t done at the moment. But my recollection is that critical arguments made on appeal were not made below, or inadequately made relative to the much more sophisticated and thorough arguments made on appeal. That’s the difference between counsel who knows what they’re doing and counsel who doesn’t.

              And no, your comments at VC were not legal arguments. They were rhetoric. Legal arguments require a basis. You argued what seemed rational to you, but without any basis in law.

            2. @SoapboxOrator

              That’s why I characterized my comments as an outline of an argument. A lawyer knowledgeable in this area would have to see if that vein of argument can be fleshed out with case law. But in any case, a legal argument in that or any other vein was never formally developed and made against the pen/trap order, hence waiver.

              I now realize the prospects for Lavabit aren’t very good. Much appreciated.

            3. SHG Post author

              The prospects for Lavabit aren’t great based on the waiver of so much of the argument that is being made on appeal, but was not made below. That said, all is not lost. There remains “interest of justice” jurisdiction, where the court can overlook waiver and reach issues regardless, and whether EFF can make a Herculean effort to bootstrap its arguments on appeal from the scraps of arguments made below.

              In other words, rather than predict the future, keep on fighting for the right outcome despite the obstacles. Understanding what went wrong is important. So is tenacity. Quitting is not an option.

              But please understand that this just scratches the surface of the subject. Your VC comment is NOT the outline of a legal argument. It’s meaningless rhetoric. You can’t make stuff up without any legal basis and, because it makes sense to you, think it’s got any merit whatsoever. Nor can I, in the course of a few shallow comments, explain to you what it took years of learning and decades of experience to understand.

              You are no more equipped to understand what’s involved in a meaningful way than you are to perform open heart surgery. I don’t say this to be insulting, but so that you understand the limits of what can be done here, despite the fact that it’s sucked up a great deal of my time to satisfy your curiosity.

            4. @SoapboxOrator

              I think this is the part of the parable where the karate student, having been knocked flat on his back by a roundhouse kick from the master, gets back up, adjusts his clothes, stands straight and says, “thank you sensei!”

              In all seriousness, though, I take your comments to heart, Scott, and realize the limits of my own comments.

              I will keep hoping for Lavabit, though clearly Lavabit is rowing against a strong tide. Let’s see what Binnall can pull out of his hat to inspire the court to use some of its discretion in Lavabit’s favor.

            5. SHG Post author

              It’s not in Binnall’s hands anymore. It’s now in Marcia Hoffman’s hands. I wish her the best of luck as I hope she can undo the damage. I only wish the damage hadn’t happened in the first place.

  15. Pingback: Reviving Lavabit: Can The Issues Be Saved? | Simple Justice

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