Lavabit Loses Its Appeal For Mucking Up Basic Procedural Issues Early On

from the unfortunate-but-messy dept

Wed, Apr 16th 2014 6:53am — Mike Masnick

This won't come as a huge surprise, but Ladar Levison and Lavabit have now lost their appeal on whether or not they were in contempt for failing to compromise the security of every one of Lavabit's customers in complying with the DOJ's demands to get access to who Ed Snowden had been emailing. The ruling does a decent job explaining the history of the case, which also details some of the (many, many) procedural mistakes that Lavabit made along the way, which made it a lot less likely it would succeed here. Let this be a massive reminder that, if you're dealing with this kind of stuff, getting a good lawyer on your side immediately is important. Unfortunately, the procedural oddities effectively preclude the court even bothering with the much bigger and important question of whether or not a basic pen register demand requires a company to give up its private keys. As the court details, the problem seems to be how Lavabit went about the legal process here:

In the district court, Lavabit failed to challenge the statutory authority for the Pen/Trap Order, or the order itself, in any way. Yet on appeal, Lavabit suggests that the district court’s demand for the encryption keys required more assistance from it than the Pen/Trap Statute requires. Lavabit never mentioned or alluded to the Pen/Trap Statute below, much less the district court’s authority to act under that statute. In fact, with the possible exception of an undue burden argument directed at the seizure warrant, Lavabit never challenged the district court’s authority to act under either the Pen/Trap Statute or the SCA.

The court basically says that because Lavabit mucked up the process, the appeal is going to fail. It further rejects the claim that Lavabit did, in fact, challenge the Pen/Trap order when Levison objected to turning over his keys. The court notes that such a claim is a stretch.

In making his statement against turning over the encryption keys to the Government, Levison offered only a one-sentence remark: “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.” (J.A. 42.) This statement -- which we recite here verbatim -- constituted the sum total of the only objection that Lavabit ever raised to the turnover of the keys under the Pen/Trap Order. We cannot refashion this vague statement of personal preference into anything remotely close to the argument that Lavabit now raises on appeal: a statutory-text-based challenge to the district court’s fundamental authority under the Pen/Trap Statute. Levison’s statement to the district court simply reflected his personal angst over complying with the Pen/Trap Order, not his present appellate argument that questions whether the district court possessed the authority to act at all.

Levison represented himself pro se at the beginning of the case (adding to the mess of procedural problems), and while his legal team tries to use that as a reason why the court should forgive some of the procedural mistakes, the court rejects that as well (even noting that, as a limited liability company, Lavabit shouldn't have been allowed to proceed pro se in the first place).

The hail mary attempt in the case was to argue that because the underlying issues are of "immense public concern" (and they are) that the court should ignore the procedural mistakes. The court flatly rejects that notion:

Finally, Lavabit proposes that we hear its challenge to the Pen/Trap Order because Lavabit views the case as a matter of “immense public concern.” (Reply Br. 6.) Yet there exists a perhaps greater “public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact.” United States v. Atkinson, 297 U.S. 157, 159 (1936). And exhuming forfeited arguments when they involve matters of “public concern” would present practical difficulties. For one thing, identifying cases of a “public concern” and “non-public concern” –- divorced from any other consideration –- is a tricky task governed by no objective standards..... For another thing, if an issue is of public concern, that concern is likely more reason to avoid deciding it from a less-than-fully litigated record....

Accordingly, we decline to hear Lavabit’s new arguments merely because Lavabit believes them to be important.

This is unfortunate on many levels, because it's not just Lavabit that believes these issues to be of immense public concern. Either way, this mess of a case should be a reminder that, especially when dealing with the government, it's important to get good lawyers on your side from the very beginning.

Lavabit usca4 Op (PDF)Lavabit usca4 Op (Text)

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Filed Under: 4th amendment, appeals process, doj, ladar levison, pen register orders, pen/trap, private keys
Companies: lavabit

27 Comments

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Anonymous Coward, 16 Apr 2014 @ 7:12am

Either way, this mess of a case should be a reminder that, especially when dealing with the government, it's important to get good lawyers on your side from the very beginning.

While that is a good idea, there is often a problem or two in achieving that, Finding one if one can afford to pay, or finding one to act pro bono, with the necessary expertise, especially if being hurried along by the authorities.
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Anonymous Coward, 16 Apr 2014 @ 7:15am

the lawyer who represents himself has a fool for a client.
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Anonymous Coward, 16 Apr 2014 @ 7:27am

How about the long run?
Is there an upside to this case in the long run?

Did acting dumb cut this guy's losses in the long run?

If he had a high dollar lawyer, would he have been able to stall for 6 weeks and 'lose' a lot of data?

If the penalty was $5,000 per day, and the sanctions lasted 2 days, and he had time to eliminate and doctor the data wanted for 6 weeks, how does that compare to retaining a good lawyer? Can you 'retain' a good lawyer for $10,000, not to mention each hour of consultation and court time? What lawyer would take this pro bono, against the government, relating to the Snowden Affair? Would the lawyer be targeted with NSA surveillance?
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Anonymous Coward, 16 Apr 2014 @ 7:34am

Re: How about the long run?
The NSA has made it clear that they don't target US citizens, they just grab everything on everyone.
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Anonymous Coward, 16 Apr 2014 @ 7:35am

This kind of dodge by the courts...
is one of the reasons people hate lawyers in general. As shown by this court's refusal to hear the real issue, the courts demand that lawyers throw everything possible against the wall first up, in the hope that something will be relevant enough to get in the door of an appeals court. Low level cases would be easier to read and easier to write if lawyers had any level of confidence that they could address only the immediate issue. You see this on the criminal side too, where prosecutors list out every charge that looks vaguely related to the facts of the case, in hopes that they will be able to prove one of them. Generally, when I read that kind of indictment, I immediately take a dim view of the prosecution for being so indecisive.
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Anonymous Coward, 16 Apr 2014 @ 7:35am

Lavabit's owner made heroic efforts to obtain a lawyer in a timely manner, but the combination of cost plus the obscure nature of the underlying legal claims made that impossible. Any blame here should rest squarely with a flawed judicial system.
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Mike Masnick (profile), 16 Apr 2014 @ 8:12am

Re:
Lavabit's owner made heroic efforts to obtain a lawyer in a timely manner

Do you have any details to support that?

the combination of cost plus the obscure nature of the underlying legal claims made that impossible

Given the issues at play, it seems any number of organizations that are now helping him likely would have jumped at the early chance to help as well...

Either way, if you're providing "secure" services, you should *ALREADY* have such legal help lined up.
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Anonymous Coward, 16 Apr 2014 @ 8:25am

Laws...
That cannot by navigated by the 'average' lay person are valueless to a free and open society.

There is no exception to this... the mere fact that legal issues require representation are in and of themselves the very proof of the corruption of the legal system. The sad thing is that people are so used to this, that they are no longer able to tell corruption for what it is now.

When you are so used to it being like this, your compass has been tuned to not see the corruption for what it is!
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PRMan, 16 Apr 2014 @ 8:26am

Re: Re:
How could he get a lawyer when he wasn't even allowed to discuss the case at first? Or even that he had received anything.
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OldMugwump (profile), 16 Apr 2014 @ 8:30am

Re:If you're providing "secure" services, you should *ALREADY* have such legal help lined up.
Absolutely.

The result here is a shame, but I don't blame the court too much. Lavabit screwed up big time.

Anyone running a service whose operation is likely to frustrate the authorities (even if that's not the intent, and legal and legitimate as it may be) needs to have good legal help a single phone call away from day 1.

If you don't have that, you're not serious about it.
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Anonymous Coward, 16 Apr 2014 @ 8:33am

Re: Re: Re:
That does not apply when acquiring legal counsel.
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Christopher Best (profile), 16 Apr 2014 @ 8:49am

I have Lavar's own word
Go listen to the Triangulation interview of Lavar that Leo Laporte did. He detailed (as much as he legally could) the ridiculous lengths he went to try and secure council. He DID immediately hire a lawyer, but then he was summoned to court in DC where that lawyer could not represent him. He was then trapped in a position where he couldn't even discuss the details of his case with potential attorneys and had practically no time to find an alternative.

They stacked the deck against him from the beginning to prevent any chance of getting competent representation.

The Federal Circuit's worship of procedure, and its allowing of flagrantly unconstitutional things to happen because the defense attorney didn't recite the proper magic spell at the appropriate time, is shameful.
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Ninja (profile), 16 Apr 2014 @ 9:02am

Re: I have Lavar's own word
And even if he did screw up, the challenge to the Pen/Trap Order should be heard because IT IS a matter of immense public concern. That the judge chose to ignore it spells worlds about him.
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Pragmatic, 16 Apr 2014 @ 9:14am

Re: Re:If you're providing "secure" services, you should *ALREADY* have such legal help lined up.
Per Christopher Best,
Go listen to the Triangulation interview of Lavar that Leo Laporte did. He detailed (as much as he legally could) the ridiculous lengths he went to try and secure council. He DID immediately hire a lawyer, but then he was summoned to court in DC where that lawyer could not represent him. He was then trapped in a position where he couldn't even discuss the details of his case with potential attorneys and had practically no time to find an alternative.

They stacked the deck against him from the beginning to prevent any chance of getting competent representation.

How in the world could he get the good legal help required if the above statement is true?

Sad to say, the idea of setting up a service like Lavabit's in the USA is madness to anyone except a collaborator. That's the world we live in.
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Anonymous Coward, 16 Apr 2014 @ 9:27am

That sucks. But I also can't understand the Court's insistence that giving the government the keys that can decrypt EVERYONE'S communications, is not a big deal, because the government "wouldn't do that". That's such a silly argument, especially post-Snowden revelations.
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art guerrilla (profile), 16 Apr 2014 @ 10:39am

Re:
really, UNLESS you are either a fat cat or a korporation, WHO can afford a 'good lawyer' (oxymoron alert? *ouch*) at $250 per hour for forever ? ? ?

THAT is one major reason why the odds are so stacked against us 99: WHO CAN AFFORD TO 'DEFEND' your rights, when it costs more-money-per-hour than they've probably made from whatever venture is being threatened by legal issues...

the end result is the same as our bought-and-paid-for election system: the rich get the power, we get to glower...

THERE IS NO EQUITABLE RECOURSE by means of the legal system when you are bankrupted to 'defend' yourself against deep-pocket scumbags who have no case, BUT have lawyers, guns and money to bully you with...

we got nothing but morality on our side; unfortunately, this is the age of mammon, not morality...
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Anonymous Coward, 16 Apr 2014 @ 10:54am

Did NSA Use Heartbleed Against Lavabit?
What are the chances that NSA used Heartbleed against Lavabit?
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alternatives(), 16 Apr 2014 @ 11:46am

Re: Re:If you're providing "secure" services, you should *ALREADY* have such legal help lined up.
If this is the correct position to take, then the only people who can start a business are the ones who can afford to pay, up front, for a lawyer.

Exactly where would one find a lawyer who'd be able to offer the correct advice when parts of the underlying law is considered "secret"?

And how does this advice apply to the Nevada 'pay with Gold' guy? He spent money up front on a lawyer to determine that yea, you can pay people with gold coins at face value and STIlL got nailed.
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mattshow (profile), 16 Apr 2014 @ 12:52pm

Re: This kind of dodge by the courts...
But what's the alternative? Should I be able to sue someone, and then when I lose at trial, appeal it and say "Oh, my first arguments weren't successful so I've decided to try a bunch of different ones"?
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Anonymous Coward, 16 Apr 2014 @ 2:10pm

Re: Re: This kind of dodge by the courts...
Aside from the number of refilings, how is that different from the current scenario where you sue someone for every argument that sounds vaguely related to what you want and wait to see which ones the Court will tolerate? Besides, we're looking at a case where the Federal government used a variety of dirty tricks (c.f. the incredible difficulty Levison faced in obtaining a lawyer who could appear in the court that the government selected) to win the first round. I would have less sympathy for a scenario where the aggressor moves poorly, loses, and wants a rehearing, which is the situation you describe. When the defender is forced to move poorly and then loses, the loss is not surprising and a just system would consider the circumstances that caused the procedural errors.
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Anonymous Coward, 16 Apr 2014 @ 8:20pm

This is where legal procedures illustrate the injustice of the legal system. In the same respect that truth is a defense against a libel or slander charge, Lavabit's defense should be allowed regardless of when or how it's brought up. The legal proceedings don't change the reality of whether or not Lavabit did something wrong.
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Anonymous Coward, 16 Apr 2014 @ 11:06pm

Re: Re: How about the long run?
And then hand it over to the FBI so they can target US citizen.

but hey, 'merica is free of terrorist, yay
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Mike Masnick (profile), 17 Apr 2014 @ 6:56am

Re: Re:
really, UNLESS you are either a fat cat or a korporation, WHO can afford a 'good lawyer' (oxymoron alert? *ouch*) at $250 per hour for forever ? ? ?

FWIW a big name lawyer almost certainly costs a lot more than that. Perhaps 3x to 4x for someone with a fair bit of experience.
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mattshow (profile), 17 Apr 2014 @ 8:35am

Re: Re: Re: This kind of dodge by the courts...
It's different because at least in the situation you describe, the defendant knows all the accusations they have to respond to right up front. They can do all the legal research, line up all the witnesses they think they need and do all the discovery at one time.

If new issues were allowed on appeal, that would mean the defendant would basically have to start from scratch: researching new legal issues, doing discovery AGAIN and lining up new (or possibly the same) witnesses. It would impose a huge burden on the defendant. It seems "just" to do it that way because this time around, you agree with the defendant and want to see them succeed. I'm sure the first time the government appealed a trial decision and brought up a bunch of new issues, and the poor defendant faced a huge legal bill having to basically re-litigate the whole thing, the people commenting on this story wouldn't be NEARLY so supportive.
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mattshow (profile), 17 Apr 2014 @ 8:37am

Re: Re: Re: Re: This kind of dodge by the courts...
Err sorry. I used "defendant", but that's not really the correct word. And really, it would impose a huge burden on both parties, it's just that at least the party appealing is choosing to impose that burden on themselves.
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Annonimus, 17 Apr 2014 @ 9:01am

Re:
So Popehat needs better advertising to the masses or something along those lines?
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Anonymous, 19 Dec 2014 @ 6:03am

Re:
He only had 4 days.
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