The Last Stand of Lavabit: A Case to Watch

February 11, 2014

The details of government surveillance programs brought to light in the wake of Edward Snowden’s NSA leaks have already spawned multiple lawsuits.  Klayman v. NSA was filed literally the day after the first revelations came out in The Guardian.  US District Judge Richard Leon called the government’s spying technology “almost Orwellian” in his widely cited opinion.  He rejected the government’s key legal precedent a 1970s case that allowed the police to track numbers called from a single phone (Smith v. Maryland) and found that bulk data collection is likely unconstitutional.  Judge William Pauley, a federal district judge in New York, reached the polar opposite conclusion mere days later.  He found that phone numbers dialed are simply not protected under the Fourth Amendment and, accordingly, dismissed a complaint filed by the ACLU for lack of standing.  A third case challenging NSA surveillance, Jewel v. NSA, has been briefed and is currently awaiting a decision in district court.
A somewhat parallel case is currently also awaiting adjudication at the Fourth Circuit.  Once it became clear that Snowden used an email server, Lavabit, designed to make it impossible to track a single user the FBI promptly shut it down.  Once they learned that they could not track an individual target, federal agents demanded Lavabit’s private SSL key, which would effectively give them the “keys to the kingdom”—the ability to monitor every Lavabit user, in real time.  The site’s founder has consistently maintained that he is willing to help law enforcement track a specific target.  He was, however, unwilling to provide law enforcement carte blanche access to the metadata of hundreds of thousands of users—which would be the pragmatic effect of handing over the private SSL key.  He was then given an ultimatum:  hand over the SSL key or pay $5,000 per day.  Levison elected to shut down the service, deleting the e-mails belonging to about 400,000 users, including his own.

Both the litigation initiated against the NSA and Levison’s appeal could pose huge implications for one the most pressing issues of cloud computing era: how much can the government rely on precedence promulgated in the 1970s in the age of the telephone in their use of powerful and far-reaching digital surveillance programs.

While Levison’s case will not be directly affected legally by the other NSA litigation, Levison’s appeal covers many of the same grounds upon which the NSA litigation rests.  In Levison’s case, the FBI is arguing that what they want to install on Levison’s e-mail service is essentially just a “pen register.”  This provides a similar legal justification to the NSA’s domestic dragnet data mining program—metadata is not constitutionally protected by the Fourth Amendment.  Both lines of litigation could pose huge implications for one the most pressing issues of cloud computing era: how much can the government rely on precedence promulgated in the 1970s in the age of the telephone in their use of powerful and far-reaching digital surveillance programs.  At least one of these cases is likely to end up before the Supreme Court.  For this reason, the outcome of Levison’s appeal is worth watching.