Lavabit loses appeal on technicality

A federal appeals court tells Ladar Levison, of the now-moribund email service Lavabit, that he didn't clearly articulate the legal issues at stake in his contempt of court appeal.

Lavabit CEO Ladar Levison during a public sit-down at CNET headquarters last October. James Martin/CNET

The US 4th Circuit Court of Appeals upheld contempt of court citations on Wednesday against Ladar Levison for his refusal to hand over the master encryption keys to Lavabit's email service last summer.

The appellate court didn't comment on the substantive issue in the case, whether the government had the right to demand the encryption keys that would allow them to observe all traffic of a targeted email account. Instead, the appeals court ruled that the Internet privacy issues raised in Levison's appeal were not clearly articulated while he was defending himself in district court.

The appeals court said Levison should have brought forward his claim that the government was exceeding its authority under US "pen register" and "trap and trace" statutes before being charged with contempt of court by the district judge last summer.

Levison shuttered Lavabit, the encrypted email service he founded in 2004, three months after Edward Snowden leaked National Security Agency documents to reporters. Snowden reportedly had used a Lavabit account, although as yet there has been no confirmation that Snowden's Lavabit emails were the catalyst that Levison used to shutter his service.

Before his appeal, there is only one instance of Levison objecting in court to turning over the encryption keys. "I have only ever objected to turning over the SSL keys because that would compromise all of the secure communications in and out of my network, including my own administrative traffic," he said in a court hearing in July 2013.

Judge G. Steven Agee wrote for the three-judge appellate panel that the statement was legally inadequate. "We cannot refashion this vague statement of personal preference into anything remotely close to the argument that Lavabit now raises on appeal: a statutory-text-based challenge to the district court's fundamental authority under the Pen/Trap Statute," he said.

"Levison's statement to the district court simply reflected his personal angst over complying with the Pen/Trap Order, not his present appellate argument that questions whether the district court possessed the authority to act at all," Agee said.

It is the government-issued pen/trap ordering Lavabit to capture all email transactional data of one of its customers, presumably Snowden, at the heart of Levison's disagreement.

ACLU attorney Brian Hauss said in a statement that the ruling doesn't affect Lavabit's more substantive dispute with the government.

"The court focused its decision on procedural aspects of the case unrelated to the merits of Lavabit's claims. On the merits, we believe it's clear that there are limits on the government's power to coerce innocent service providers into its surveillance activities. The government exceeded those limits when it asked Lavabit to blow up its business -- and undermine the encryption technology that ensures our collective cybersecurity -- to get information that Lavabit itself offered to provide," Hauss said.

The ACLU had filed an amicus brief with the court.