Ladar Levison's Court Loss Leaves Privacy Issues Undecided Details, The Atlas Society

If you were hoping that Ladar Levison’s court fight over his refusal to expose users of his secure email system, Lavabit, to government surveillance, would produce a shining judicial defense of privacy and business rights, today the Fourth Circuit let you down.

If, on the other hand, you were afraid that the appellate court would uphold the contempt ruling a federal judge made last year against Levison and his company and thereby deal a serious blow to any businessman’s ability to offer online privacy—well, that didn’t happen either.

The Fourth Circuit did uphold the contempt citation. That’s bad news for the man who is, perhaps more than anyone else, the opposite of the NSA . But the court explicitly refused to consider the constitutional questions involved in the case, and it only looked at the questions about online search-and-seizure laws through a very limiting procedural filter. This case has created no very helpful precedent either for privacy-conscious businesses and their customers or for government officials who want their information.

Levison didn’t leave the issue of email privacy just to litigation: businessmen and programmers like him have their own weapons to bring to their battles.

Instead of giving serious consideration to the core issue in the case—whether the government was entitled to force Levison to turn over his encryption keys so that investigators could get one customer’s metadata, even though that would have meant giving the government access to all his customers’ metadata and email contents—the court decided the appeal on the ground that Levison had failed to raise his arguments in the trial court. You’re generally not allowed to ask an appellate court to say a trial court got something wrong unless you gave the trial court a chance to get it right. You aren’t allowed to raise whole new issues in the appeal. And that’s what the Fourth Circuit said Levison was trying to do.

The Fourth Circuit’s decision teaches us nothing about email privacy. What it does do is remind us of the importance of the division of labor, including in battles over rights. At a key hearing (see pages 50-64 of this file ) when Levison should have raised his statutory and constitutional arguments, he represented himself and did not raise them. That cost him. If he’d had a lawyer, that lawyer would have been aware of the risk of failing to raise arguments, and (one at least hopes) would have known the important arguments to raise.

But Levison didn’t leave the issue of email privacy just to litigation: businessmen and programmers like him have their own weapons to bring to their battles. By building Lavabit in the first place, Levison provided unusually high security to his customers for 10 years . By shutting down Lavabit , Levison the businessman protected his customers’ privacy despite turning over his encryption keys. And with his new project , Levison the programmer and businessman is working on new ways to secure individuals’ private communications. Meanwhile, the legal and constitutional issues the Fourth Circuit didn’t get to today await another day—and more work by lawyers.

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