Privacy SOS

Lavabit’s Levison threatened with arrest for closing company in face of possible bulk surveillance order

The day Ladar Levison closed his email company Lavabit, he received a letter from James Trump, a senior lawyer in the Virginia U.S. attorney’s office, warning him that he may have “violated the court order” by closing up shop. Someone NBC news only identifies as “a source familiar with the matter” told journalist Mike Isikoff that this “statement [] was interpreted as a possible threat to charge Levison with contempt of court.”

Charging Levison with obstruction of justice or contempt of court for closing Lavabit would be shocking indeed, but this particular litigator at the Virginia U.S. attorney's office is no stranger to shocking prosecutions. Isikoff writes:

Trump, who has been a lead attorney on high-profile leak investigations targeting former CIA officers John Kiriakou and Jeffrey Sterling, did not respond to a request for comment, nor did prosecutors in the U.S. Attorney’s Office, whose prosecutors have charged Snowden with violations of the Espionage Act. "We have no comment," said Andrew Ames, a spokesman for the Justice Department.

We still don’t know what the government was trying to get Levison to turn over because the court records are all sealed and he is barred from speaking about the details of the demand. But the following comments suggest that the government asked him for information on all of his users — not simply Snowden.

Levison stressed that he has complied with "upwards of two dozen court orders" for information in the past that were targeted at "specific users" and that "I never had a problem with that." But without disclosing details, he suggested that the order he received more recently was markedly different, requiring him to cooperate in broadly based surveillance that would scoop up information about all the users of his service. He likened the demands to a requirement to install a tap on his telephone. Those demands apparently began about the time that Snowden surfaced as one of his customers, apparently triggering a secret legal battle between Levison and federal prosecutors.

How on earth could the government justifiably request informaiton about every single Lavabit user? What could this possibly mean?

Could it be that the NSA wanted to know who else was using Lavabit, and to communicate what? Could the Virginia U.S. attorney’s office, perhaps in cooperation with the FBI and NSA, be testing a novel legal theory using the extraordinary circumstances surrounding the Snowden case as a wedge to break open broader surveillance powers? Or is it possible that the government has issued bulk demands for email and internet records to other companies — that this kind of order is actually routine and widespread — but we don’t know about it because companies have gone along with the government, in secret?

We don’t know the answers to these questions, because the records regarding the Levison/Lavabit affair are being kept secret from the public. That’s a huge problem that needs to be resolved as soon as possible, so that we can have a real debate about the underlying surveillance powers that govern the order.

Meanwhile, we need to pay very close attention to what happens to Ladar Levison. He told NBC news that 

he has been "threatened with arrest multiple times over the past six weeks," but that he was making a stand on principle: "I think it's important to point out that what prompted me to shut down my service wasn't access to one person's data. It was about protecting the privacy of all my users."

Let’s make sure we stand with him.

© 2021 ACLU of Massachusetts.