The owner of the encrypted email company Lavabit has formally appealed the secret surveillance order that led him to defiantly shutter the site last month. But the details of the case were immediately placed under seal in the 4th Circuit Court of Appeals, records show.
The Texas-based email service shut down on August 8, blaming a court battle it had been fighting, and losing, in secret. The closure occurred about a month after news reports revealed that NSA leaker Edward Snowden was using a Lavabit email account to communicate from Russia.
In a statement announcing the closure, and in subsequent interviews, Lavabit owner Ladar Levison complained that he’s prevented from revealing exactly what the government asked him to do, or who it was targeting. The circumstances suggest Lavabit had been ordered to actively circumvent its own security, either by providing the government with its private SSL certificate — allowing its users to be wiretapped — or by modifying its software to store a user’s private encryption keys.
“I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly 10 years of hard work by shutting down Lavabit,” Levison wrote at the time. “After significant soul searching, I have decided to suspend operations.”
Levison’s opening brief in his appeal is due October 3, and will likely be filed under seal, with a redacted version made public in compliance with the appellate court’s rules. But the appeal docket, opened on August 29, adds a few new details to what’s known about the case, including the identity of the Alexandria, Virginia judge whose secret orders Levison is challenging.
Courtroom sketch of Claude Hilton in federal court in Alexandria, Va. in 2004. Image: AP/Dana VerkouterenClaude M. Hilton, Senior U. S. District Court Judge for the Eastern District of Virginia, is a Reagan appointee who later served on the secret Foreign Intelligence Surveillance Court for seven years, from May 2000-2007. That puts him on the secretive panel during the period it approved some of the most controversial NSA surveillance programs to surface in Edward Snowden’s leaks, including the NSA’s bulk collection of U.S. phone call metadata, which began in 2006.
Hilton presided over the two district court cases that have been consolidated for the Lavabit appeal, according to the docket: 1:13−sw−522 is captioned simply “Under Seal,” though the “sw” in the case number indicates it’s a search warrant application; 1:13-dm-22 is listed as “Grand Jury Proceedings,” and follows the same form taken by the records demands issued against Twitter and other companies by the WikiLeaks grand jury in December 2010.
Both of the Lavabit cases were filed on July 16, four days after press reports indicated that Edward Snowden used a Lavabit account to invite local human rights workers and lawyers to a press conference in the Moscow airport, where he announced his bid for asylum in Russia. The court orders were issued August 5. Lavabit shut down three days later.
If the secret proceedings targeting Lavabit were indeed prompted by Snowden, that suggests the FBI was a little slow off the mark. [Update 9.27.13: No, they weren’t]. A PGP crypto key registered by Snowden in January 2010, and shared on public key servers, showed a Lavabit e-mail address long before his asylum bid.
