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Case Name United States v. Lavabit NS-VA-0002
Docket / Court 1:13 EC297 ( E.D. Va. )
State/Territory Virginia
Case Type(s) National Security
Case Summary
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 ... read more >
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

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Issues and Causes of Action
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Constitutional Clause
Unreasonable search and seizure
Content of Injunction
Required disclosure
Warrant/order for search or seizure
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
U.S. Dept of Justice plaintiff
Causes of Action FISA Title III Warrant (Physical Search), 50 U.S.C. §§ 1821-1829
Defendant(s) Lavabit
Plaintiff Description The plaintiff is the U.S. The Defendant is Lavabit LLC, an email service provider located in Dallas, Texas, from which the government sought records.
Indexed Lawyer Organizations None on record
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Criminal Conviction
Source of Relief Litigation
Form of Settlement None on record
Order Duration not on record
Case Closing Year 2014
Case Ongoing No
Additional Resources
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Links Guest Post: New Resource — Civil Rights Litigation Clearinghouse FISA Archives
Just Security
Posted: Jun. 26, 2014
By: Margo Schlanger
[ Detail ] [ External Link ]

No docket sheet currently in the collection
General Documents
Order 06/10/2013 (E.D. Va.)
NS-VA-0002-0001 PDF | Detail
Order 06/28/2013 (E.D. Va.)
NS-VA-0002-0002 PDF | Detail
Motion for Entry of an Order to Compel 06/28/2013
NS-VA-0002-0003 PDF | Detail
Order Compelling Compliance Forthwith 06/28/2013 (E.D. Va.)
NS-VA-0002-0004 PDF | Detail
Motion of the United States For an Order to Show Cause 07/09/2013
NS-VA-0002-0005 PDF | Detail
Order to Show Cause 07/09/2013 (E.D. Va.)
NS-VA-0002-0006 PDF | Detail
Summons in a Criminal Case 07/16/2013
NS-VA-0002-0007 PDF | Detail
Subpoena to Testify Before the Grand Jury 07/16/2013
NS-VA-0002-0008 PDF | Detail
Search and Seizure Warrant 07/16/2013 (E.D. Va.)
NS-VA-0002-0009 PDF | Detail
Order to Seal 07/16/2013 (E.D. Va.)
NS-VA-0002-0010 PDF | Detail
Order 07/16/2013 (E.D. Va.)
NS-VA-0002-0011 PDF | Detail
Supplement to the Motion of the United States for an Order to Show Cause 07/16/2013
NS-VA-0002-0012 PDF | Detail
Transcript of Hearing Before the Honorable Claude M. Hilton 07/16/2013
NS-VA-0002-0013 PDF | Detail
Order 07/16/2013 (E.D. Va.)
NS-VA-0002-0014 PDF | Detail
Motion to Quash Subpoena and Search Warrant and Memorandum of Law in Support of Motion 07/25/2013
NS-VA-0002-0015 PDF | Detail
Motion for Unsealing of Sealed Court Records and Removal of Non-Disclosure Order and Memorandum of Law in Support of Motion 07/25/2013
NS-VA-0002-0016 PDF | Detail
Response of the United States in Opposition to Lavabit's Motion to Quash Subpoena and Motion to for Unsealing of Sealed Court Records 07/31/2013
NS-VA-0002-0017 PDF | Detail
Transcript of Hearing Before the Honorable Claude M. Hilton United States District Judge 08/01/2013
NS-VA-0002-0018 PDF | Detail
Order Denying Motions 08/01/2013 (E.D. Va.)
NS-VA-0002-0019 PDF | Detail
Motion for Sanctions 08/05/2013
NS-VA-0002-0020 PDF | Detail
Order 08/05/2013 (E.D. Va.)
NS-VA-0002-0021 PDF | Detail
Notice of Appeal 08/15/2013
NS-VA-0002-0022 PDF | Detail
Notice of Appeal 08/16/2013
NS-VA-0002-0023 PDF | Detail
Brief of the United States 11/12/2013
NS-VA-0002-0024 PDF | Detail
Reply Brief of Appellant 11/22/2013
NS-VA-0002-0026 PDF | Detail
Untitled 04/16/2014 (749 F.3d 276)
NS-VA-0002-0025 PDF | WESTLAW| LEXIS | Detail
Judges Buchanan, Theresa Carroll (E.D. Va.) [Magistrate]
NS-VA-0002-0002 | NS-VA-0002-0004
Hilton, Claude M. (FISC, E.D. Va.)
NS-VA-0002-0006 | NS-VA-0002-0009 | NS-VA-0002-0010 | NS-VA-0002-0011 | NS-VA-0002-0014 | NS-VA-0002-0019 | NS-VA-0002-0021 | NS-VA-0002-0025
Monitors/Masters None on record
Plaintiff's Lawyers Ben'ary, Michael (Virginia)
Boente, Dana J. (Virginia)
Fitzpatrick, Benjamin (District of Columbia)
Goldfoot, Josh (District of Columbia)
Judish, Nathan (District of Columbia)
Macbride, Neil H (Virginia)
NS-VA-0002-0003 | NS-VA-0002-0005 | NS-VA-0002-0012 | NS-VA-0002-0017 | NS-VA-0002-0020
Peterson, Andrew (Virginia)
Raman, Mythili (District of Columbia)
Van Grack, Brandon (District of Columbia)
Defendant's Lawyers Binnall, Jesse R. (Virginia)
NS-VA-0002-0015 | NS-VA-0002-0016 | NS-VA-0002-0022 | NS-VA-0002-0023 | NS-VA-0002-0026
Samuel, Ian (New York)
Other Lawyers None on record

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