from the because-secrecy-for-the-government-triumphs-all dept
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 involved – and 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.This is, without a doubt, problematic, and shows the kind of massive imbalance that is set up in these situations. The government has the power to force companies to do what it wants, and companies have little ability to push back, especially when they're left scrambling under gag orders and with limited information.
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. 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.
That said, Levison still should shoulder some of the blame. Yes, he had to scramble to find lawyers, but if you're setting up a "private" and "secure" email service, in which you're making certain promises to users that you must know the government won't like, you need to have ready and competent legal help on call from the beginning. In the last year or so, there has been an explosion of new startups and services promising more private and secure messaging. I hope that all of them are reading what happened here and that they all have competent legal representation who understands the underlying issues ready to go now, rather than waiting until the DOJ knocks on their doors. There will still be some issues, depending on the specifics of the request and jurisdiction, but from what Levison is saying, he was starting from scratch at a point when he should have been much more prepared.
Again: if you are offering private or secure services, you need to have a competent and knowledgeable lawyer on call who can pick up your case immediately.
In the end, while the ruling against Lavabit was disappointing, perhaps it's a blessing in disguise. Hopefully, the next time this issue comes up, it comes up with a company that's much more legally prepared to deal with it, and can present a much stronger case.