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Court rejects Lavabit appeal, cites improper procedural handling

Joab Jackson | April 17, 2014
A U.S. federal court has affirmed contempt charges against Lavabit, rejecting an attempt by company attorneys to argue new issues on appeal.

A U.S. federal court has affirmed contempt charges against Lavabit, rejecting an attempt by company attorneys to argue new issues on appeal.

The ruling, released Wednesday by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, upheld contempt of court charges brought against the now-defunct secure email provider last August for refusing to hand over records of a user in a timely manner. The ruling leaves for a future court the question of whether, and under what circumstances, the government can legally spy on encrypted emails.

Although Lavabit founder and operator Ladar Levison and his lawyers had hoped to challenge the legality of using pen trap devices on encrypted communications, the appeals court decided not to consider the lawyer's arguments, citing improper procedural handling of the case on the part of Lavabit and its legal team.

"In view of Lavabit's waiver of its appellate arguments by failing to raise them in the district court, and its failure to raise the issue of fundamental or plain error review, there is no cognizable basis upon which to challenge the pen trap order," the judges wrote in their decision. "The district court did not err, then, in finding Lavabit and Levison in contempt once they admittedly violated that order."

"The court focused its decision on procedural aspects of the case unrelated to the merits of Lavabit's claims," wrote American Civil Liberties Union attorney Brian Hauss, in an email statement.

Last June, Lavabit was issued a court order to set up a U.S. Federal Bureau of Investigation pen trap to collect all routing data for one of its customers, thought to be former NSA contractor Edward Snowden, who had just come to international attention for leaking classified documents from the National Security Agency. He had used the service to alert the media of a press conference he was about to hold, according to reports at the time.

A pen trap, is law enforcement shorthand for "pen registers" and "trap-and-trace devices," which can record all routing, addressing and signaling information between electronic communications, in this case email.

Initially, Levison agreed to set up the pen trap; the company had complied to at least one other similar court order in the past. The FBI, however, had required the information in real time, and that it be unencrypted. Levison balked at these requirements.

Nearly two weeks after the court order was issued, he responded by offering to set up an internal process that would unencrypt the user's communications, then send the results to the FBI at the end of 60 days. The only other alternative, he argued, would be to send the law enforcement agency the encrypted data, which would be useless.


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