Appeals court upholds Snowden email firm contempt

4/16/2014

RICHMOND, Va. — A federal appeals court on Wednesday upheld a contempt of court citation against an email service provider used by National Security Agency leaker Edward Snowden.

A three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that Dallas-based Lavabit Inc. and its owner, Ladar Levinson, were barred from raising key issues on appeal that they did not pursue in the district court.

U.S. District Judge Claude M. Hilton sanctioned Levinson for initially refusing to give federal authorities the technical assistance they needed to track the encrypted email of a target of a criminal investigation. The appeals court’s opinion did not name the target.

Levinson also did not mention Snowden or any particular investigation when he closed his company last August. In a cryptic message, he said only that he would rather go out of business than “become complicit in crimes against the American people.” Snowden, an NSA contractor who smuggled huge numbers of classified documents out of the spy agency’s computers and gave them to journalists to expose what he has described as massive government intrusions against people across the world, had used an encrypted email account from Lavabit.

In June 2013, the government obtained a court order for the encryption keys that would allow investigators to track the target’s email traffic but not allow access to content. Levinson refused to comply, and Hilton found him in contempt and imposed a $5,000 daily fine in early August. Two days later, Levinson provided the keys.

“By that time, six weeks of data regarding the target had been lost,” Judge Steve Agee wrote in the appeals court’s unanimous ruling.

Levinson appealed the contempt finding. However, Agee wrote that the ruling must stand because Levinson never challenged the court order in the lower court.

Levinson’s attorney, Ian James Samuel, said he was disappointed with the ruling but emphasized that it centered on procedural issues and not the merits of the case.

“The court did not say the government’s actions in this case were legal,” Samuel said.

The American Civil Liberties Union had filed a friend-of-the-court brief supporting Lavabit.

“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,” ACLU attorney Brian Hauss said in a written statement.

The U.S. attorney’s office did not immediately return phone calls seeking comment.

Samuel said his client was placed at a disadvantage when he was “hauled into court 1,000 miles away” and had to fend for himself until late in the process, when he finally obtained counsel after the court had already rejected his objections to helping authorities crack the private email account.

Levinson could appeal the panel’s ruling to the full appeals court or to the U.S. Supreme Court. Samuel said no decision has been made.

Snowden has been charged with espionage and other counts and could face up to 30 years in prison if convicted. He is in Russia, where he was granted asylum for a year.