Earlier this spring, three appeals-court judges in Virginia heard a challenge brought by Ladar Levison, the man who shut down an email company he'd built over 10 years rather than obey a government order to compromise the privacy of his users. The case raised vital questions about surveillance, encryption, due process, and the privacy rights of Americans. But many of them will never be adjudicated.
Judge George Steven Agee's decision upholding a lower court's contempt finding against Levison paints a portrait of government actors following the law to its letter; an evasive, disingenuous appellant who failed to live up to reasonable legal obligations; and a flailing appeal that improperly raised questions never mentioned before the lower court. "In the ordinary case, we review the ultimate decision as to whether the contempt was proper for abuse of discretion, the underlying legal questions de novo, and any factual findings for clear error," Agee wrote. "Lavabit failed, however, to raise most of its present arguments before the district court; that failure significantly alters the standard of review."
Put simply, Levison was denied the ability to raise legal arguments before the appeals court because he failed to do so before the lower court. Knowing only the facts given in the opinion, that outcome sounds reasonable if unfortunate. But understood in the context of what happened when Levison was forced to appear in the lower court, Agee's ruling makes a mockery of justice and risks chilling every small-business owner in America.
That much is clear from Levison's account in The Guardian, where he spoke out for the first time about many aspects of his legal nightmare. Suddenly confronted with FBI agents knocking at his door, Levison was compelled to answer coercive demands made under the cover of secrecy, denied sufficient time to find legal counsel, and forced to appear alone, more than a thousand miles from home, in a secret legal proceeding. He was also barred from soliciting assistance from anyone other than a lawyer as he tried to secure and fund his defense. In his own words:
My legal saga started last summer with a knock at the door, behind which stood two federal agents ready to 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 ... Bothered by what the agents were saying, I informed them that I would first need to read the order they had just delivered—and then consult with an attorney.
That's how it should have worked. Here how the situation actually unfolded:
In the first two weeks, I was served legal papers a total of seven times and was in contact with the FBI every other day. (This was the period a prosecutor would later characterize as my "period of silence".) It took a week for me to identify an attorney who could adequately represent me, given the complex technological and legal issues involvedand we were in contact for less than a day when agents served me with a summons ordering me to appear in a Virginia courtroom, over 1,000 miles from my home. Two days later, I was served the first subpoena for the encryption keys.
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.
Let's reflect for a moment on the story so far. For 10 years this man built an email business that guaranteed customers a private, encrypted way to communicate. Out of nowhere, federal agents knocked on his door asking, in essence, that he violate a promise he made to his customers and that he destroy the whole value proposition of his enterprise. Setting aside whatever the law happens to be, it seems clear that a just system would afford a man in this situation adequate legal counsel and time to understand and respond to what was happening.
Here's what happened next:
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.
As Levison notes in his conclusion, "since the US supreme court traditionally declines to review decided on wholly procedural grounds [sic], I will be permanently denied justice."
That's exactly right.
"If my experience serves any purpose, it is to illustrate what most already know: courts must not be allowed to consider matters of great importance under the shroud of secrecy, lest we find ourselves summarily deprived of meaningful due process," he warns. "If we allow our government to continue operating in secret, it is only a matter of time before you or a loved one find yourself in a position like I did, in a secret courtroom, alone, without any of the meaningful protections that were always supposed to be the people's defense against an abuse of state power."
Levison's case shows how the national-security state and its army of lawyers have the ability to co-opt the court system. Huge corporations can occasionally fight back. Small businesses don't stand a chance.