Compliance Management, Privacy

Contempt order against Lavabit still stands, appeals court rules

A federal appeals court has backed an earlier ruling penalizing Lavabit, an encrypted email service provider that shut down last year.

On Wednesday, the appeals court upheld the order finding Lavabit in contempt of court. The order stemmed from a government investigation where Lavabit founder Ladar Levison opted to shutter the business in August 2013, rather than hand over Lavabit's private SSL key.

With the move, Levison challenged the government's request for his company's master encryption key, since investigators would have access to the data of Lavabit's 400,000-strong customer base, rather just a specific suspect. Former NSA contractor turned whistleblower Edward Snowden was believed to have been a user of the email service, which likely prompted federal investigators' request.

Court documents filed Wednesday (PDF) said that Lavabit failed to show how a district court “erred” in finding Levison in contempt.

“Lavabit abandoned any argument that the district court plainly erred, much less fundamentally erred, in relying upon the Pen/Trap Order to find Lavabit in contempt,” the court documents said. “Moreover, Lavabit fails to identify any potential ‘denial of fundamental justice' that would justify further review,” the appeals court ruled.

A "pen/trap order" was issued to authorize the government's collection of Lavabit data via a pen register and “trace-and-trap” device, the documents said.

On Wednesday, Paul Rosenzweig, a senior advisor for The Chertoff Group, a global security consulting firm, wrote at the Lawfare Blog that the decision was “less than it seems,” as the courts passed on the opportunity to “decide whether government investigative demands could trump encryption/privacy concerns.”

“Rather than decide the question, the court ruled that Lavabit and Levison had failed to raise the substantial statutory and constitutional arguments when objecting to the investigative demands in the district court,” Rosenzweig said. “Having concluded that Lavabit waived the most important legal challenges, the court rather readily found the contempt citation to be justified.”

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