Late last year, Lavabit’s owner Ladar Levison was held in civil contempt for failing to cooperate with FBI investigations into whistleblower Edward Snowden. It was a bit of a mess on both sides, which emphasised to me some important lessons.
Don’t Be A Jerk
In operating a service predicated on privacy, Levison should have understood his obligations to law enforcement. By serving a pen/trap order to Lavabit, the FBI was lawfully authorized to monitor non-content metadata of Snowden’s emails such as to, from and timestamps. In pursuit of this the FBI was authorized to install its own hardware network capture device, but as all communication was all encrypted this was not useful without Lavabit’s private keys to decrypt it. Lavabit could have provided its own implementation of such monitoring, though it did not have this capability at the time it was served.
Levison was uncooperative. He initially indicated he was not going to comply with the order. After two weeks he was accused of contempt1 and being accused of contempt did he offer to implement monitoring on behalf of the FBI. This offer appears to me an obviously minimal effort that would not have met the requirements of the order.
For $2000 Levison would collect metadata and deliver it to the government after the order’s 60-day expiration period. It would take a “week to a week and half” to implement. This is clearly insufficient. The point of prospective tracking is to obtain current data about a person’s communications.
For an extra $1500, Levison would provide daily updates. This is more useful, but still not really what was asked. Further, both options seem extortive. Assuming even a high consulting rate of $200/hour, I would expect a much faster turn-around. It’s not that hard to schedule an email of logs.
I cannot believe this was a good faith offer. The goverment rejected it, and instead demanded Lavabit’s private keys so it could operate its own hardware monitoring device. The FBI tried multiple methods of obtainings these keys above and beyond the original pen/trap order, including a search warrant and a grand jury subpoena. It isn’t clear whether this is legal, since no appelate court has ruled on it.
After another two weeks and some back and forth, a deadline was set for Lavabit to provide its keys. At the last possible moment, Levison furnished them in “an 11-page printout containing largely illegible characters in 4-point type”. This was rightly rejected by the government, and a few days later they successfully sought sanctions of $5000 per day until the keys were provided in a sensible format.
Two days and $10,000 later, Lavabit complied, and also shut down their service.
If You Are Going To Be A Jerk, Get A Lawyer
So that all may have been a masterful act of civil disobendience. Except a lack of legal preparation rendered it expensive and largely ineffective. This resistance could have forced an appelate court ruling on the legality of compelled key disclosure. Instead, it was dismissed on a technicality. Since Lavabit didn’t raise most of its arguments until it got to appeal (by which time it had support of ACLU and EFF amicus briefs), it waived its grounds for appeal.
Levison appeared without consul in many initial discussions and hearings, and possibly did so illegally when representing Lavabit. The appellate opinion noted in a footnote:
As a limited liability company, Lavabit likely should not have been permitted to proceed pro se at all.
That “it took a week for me to identify an attorney who could adequately represent [him]” seems irresponsible, given that Lavabit was an LLC formed explicitly to protect against this sort of intrusion.
Court rulings on new technology are mostly reasoned from statutes designed for the telephone system. This results in needless thrashing over interpretation. Take for instance part of the statute (18 U.S. Code § 3124) covering what assistance Lavabit should provide the FBI in setting up monitoring:
[the company] shall install such device forthwith on the appropriate line or other facility and shall furnish such investigative or law enforcement officer all additional information, facilities and technical assistance including installation and operation of the device unobtrusively
This language is awkward when applied to computer systems, particularly in the face of encryption and shared hosting.
The FBI’s device apparently had the ability to monitor all email into the system—assuming they can get appropriate private keys—and only forward relevant ones to humans for review. This isn’t a situation telephonic devices needed to deal with, and could arguably be in violation of the Fourth Amendment. How is relevant defined? Given the wide access, do we need a higher standard of trust that that criteria is being met?2
Both sides tried different metaphors to characterize this use of private keys, from compelling all hotels to have glass doors, to a business owner obstructing the law merely by placing a lock on his gate. Neither are satisfactory.
Legislation specifically addressing computer systems would provide much needed clarity.
This is not all to say that Levison deserved what happened, or to comment on the legality of either party’s actions. But Lavabit fought the law, and the law won. It’s prudent for us to learn from that.