In June 2013, the Federal Bureau of Investigation (FBI) served a grand jury subpoena on Lavabit, LLC, an email provider for billing and subscriber information associated the email address of a target of an ongoing criminal investigation. On June 10, 2013 the United States District Court for the Eastern District of Virginia issued an order by request of the United States pursuant to 18 U.S.C. § 2703(d), requiring Lavabit to disclose identifying information associated with the email address. Information to be disclosed included names, residential addresses, telephone records, IP addresses, payment and billing records, and records of user activity such as log files, date, time, and length of connections, data transfer volume, and source and destination IP addresses.
On June 28, 2013 the district court authorized, pursuant to 18 U.S.C. § 3123, installation and use of a pen register and a trap and trace device (pen/trap device) for sixty days to capture all non-content information sent to or from the specific email address serviced by Lavabit. The district court ordered Lavabit to provide technical assistance to the FBI to install the pen/trap device. When FBI agents appeared at the residence Ladar Levison, the owner and operator of Lavabit, that same day, Mr. Levison stated that Lavabit could not provide the requested information because the account user had enabled encryption services and Lavabit would not provide the requested info. Later that day, the United States secured an order directing Lavabit to comply with the first June 28, 2013 order, under threat of criminal contempt of court.
In early July 2013, the United States moved for an order directing Mr. Levison to show cause why he had failed to comply with the June 28, 2013 order. The district court ordered Mr. Levison to appear before the court to show cause why Lavabit failed to comply. The United States also issued a subpoena for Mr. Levison to testify before a grand jury and to produce the Lavabit encryption keys. Mr. Levison contacted the FBI offering to collect the information himself in lieu of installing a pen/trap device. The United States refused the terms and on July 16, 2013, the district court issued a search warrant to Lavabit for all information necessary to decrypt communications sent to or from the target email address.
Mr. Levison appeared testified before the grand jury and agreed to the installation of the pen/trap device, but continued to refuse to offer the encryption keys. At a hearing on August 1, 2013, the district court denied Mr. Levison's motions to unseal the proceedings and to quash the subpoena and warrant, and directed Mr. Levison to provide the government with the encryption keys by the following day. Mr. Levison provided the key in hard-copy format, and the government requested a copy in electronic format. Upon non-receipt, the United States moved for sanctions in the amount of $5,000 per day. The district court granted the motion on August 5 and on August 7, Mr. Levison produced a disk containing the encryption keys.
The same day, Mr. Levison shut down all operations at Lavabit and discontinued its email service. Lavabit appealed the contempt order to the United States Court of Appeals for the Fourth Circuit. The appeal is still pending.
On April 16, 2014, Judge G. Steven Agee of the Fourth Circuit affirmed the contempt sanctions. Judge Agee held that (1) the provider's single-sentence objection to turning over encryption keys did not preserve for appeal his challenge to the Pen/Trap order; (2) the provider was on notice that the Pen/Trap order implicated its encryption keys, and thus could not have been "invited" or "induced" to waive its challenge to the order; and (3) the provider abandoned any argument on appeal that the district court plainly erred, much less fundamentally erred, in relying upon the Pen/Trap order to find provider in civil contempt for failing to provide its encryption keys. In re Under Seal, 749 F.3d 276 (4th Cir. 2014).Elizabeth Homan - 12/01/2013
Jessica Kincaid - 06/23/2014