I thought I was already pretty jaded by the NSA’s and the FBI’s super-powers (to be more specific, supra-constitutional powers). But this story in the Guardian produced new levels of rage.
I am thankful for one thing, though: the story gets us beyond the question of whether or not we like Edward Snowden. This story is not about Snowden, really; it is about Ladar Levison who started and ran a business offering encrypted secure emails to clients. He writes that his company, Lavabit, served around 410,000 customers.
Obviously, any number of them might be using their privacy for criminal purposes. But Levison appears to be a naïve man who thought he was only supposed to provide access if he was served with a warrant. Big mistake. Edward Snowden was one of his clients.
My legal saga started last summer with a knock at the door, behind which stood two federal agents ready to serve me with a court order requiring the installation of surveillance equipment on my company’s network. […]
I had no choice but to consent to the installation of their device, which would hand the US government access to all of the messages – to and from all of my customers – as they travelled between their email accounts other providers on the Internet.
But that wasn’t enough. The federal agents then claimed that their court order required me to surrender my company’s private encryption keys, and I balked. What they said they needed were customer passwords – which were sent securely – so that they could access the plain-text versions of messages from customers using my company’s encrypted storage feature. (The government would later claim they only made this demand because of my “noncompliance”.)
Levison showed unacceptable defiance by saying he needed his lawyer to read the court order before he could respond. Thus he entered the charade that is the Federal court system where the government pretends that we have referees—though they are paid by, rewarded by, and punished by, the government who claims they are neutral referees.
With such short notice, my first attorney was unable to appear alongside me in court. Because the whole case was under seal, I couldn’t even admit to anyone who wasn’t an attorney that I needed a lawyer, let alone why. In the days before my appearance, I would spend hours repeating the facts of the case to a dozen attorneys, as I sought someone else that was qualified to represent me. I also discovered that as a third party in a federal criminal indictment, I had no right to counsel. After all, only my property was in jeopardy – not my liberty. Finally, I was forced to choose between appearing alone or facing a bench warrant for my arrest.
In Virginia, the government replaced its encryption key subpoena with a search warrant and a new court date. I retained a small, local law firm before I went back to my home state, which was then forced to assemble a legal strategy and file briefs in just a few short days. The court barred them from consulting outside experts about either the statutes or the technology involved in the case. The court didn’t even deliver transcripts of my first appearance to my own lawyers for two months, and forced them to proceed without access to the information they needed.
Then, a federal judge entered an order of contempt against me – without even so much as a hearing.
But the judge created a loophole: without a hearing, I was never given the opportunity to object, let alone make any any substantive defense, to the contempt change. Without any objection (because I wasn’t allowed a hearing), the appellate court waived consideration of the substantive questions my case raised – and upheld the contempt charge, on the grounds that I hadn’t disputed it in court. Since the US supreme court traditionally declines to review decided on wholly procedural grounds, I will be permanently denied justice.
This is sick! We can now begin the list of synonyms for Kafkaesque with “Levisonian.” And we can do the same for the term, “heroic.” Levison did a “John Galt” move, if you will. He ended his business rather than allow the Feds access to the private information of all 410,000 customers.
Levison didn’t have much time to prepare for this. It was never his mission in life. What he did is much less talked about—he was summoned to do a thankless task. But he rose to the occasion. I don’t criticize Snowden the way some do (I also have to admit I still don’t entirely feel like I know him). But if we get one statue of a hero who stood against the National Security Tyranny, I would put Levison at the top of the list.
As far as I’m concerned, Levison’s experience proves the courts are eighty percent enforcement for the Feds and twenty percent PR to make us, the sheep, be deluded enough to think we have power or rights.