By August, Lavabit had capitulated and handed over the keys. Shortly after, Levison shuttered the service. Levison had argued that by nature of its business, a secure email service can't host a surreptitious government pen trap. Doing so betrays the entire service it is offering to its customers.
Although both parties are expected to focus on procedural and technical considerations, the appeal will also raise many far-reaching questions about how much access law enforcement agencies should be allowed in their investigations.
Court orders that call for a company's SSL keys in order to pursue a single suspect are far too broad and could chill free speech, some argue.
"If, in the name of criminal law, we violate the privacy of an entire swath of innocent people, we risk violating some of the necessary rights of citizens to keep our democracy healthy," said Aris Michalopoulos, co-founder of the Empeopled social networking site. Empeopled filed a brief in support of Lavabit in the case.
As the law currently stands in relation to electronic services, "people aren't able to speak freely, without looking over their shoulder, and worrying that somebody is listening," Michalopoulos said.
Already the actions of law enforcement agencies have left other companies wary of offering similar secure email services.
For instance, Silent Circle, a communications provider co-founded by PGP inventor Phil Zimmermann, shut its encrypted email service in August, citing how the government's actions in the Lavabit case would make such services impossible to run.
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