Lavabit Appeal to Set Email Privacy Precedent

Secure email provider Lavabit failed to surrender its encryption
keys to the government in 2013. It’s been paying the price. In what
some
call a landmark privacy case, the Virginia-based 5th U.S. Circuit
Court will decide whether or not Lavabit sufficiently
complied with the lower court’s orders last year. Three judges
listened to opposing arguments Tuesday.

The feds presented a search warrant to the company in the summer
2013, in what many believe was a hunt for the emails of NSA whistle
blower Edward Snowden. In response, encrypted email service Lavabit
suspended operations in August 2013.

The company faced a tough decision. If Lavabit had relinquished
its Secure Sockets Layer (SSL) private keys, it would have provided
the government unrestricted access to 400,000 users’
communications, not just the one user the FBI was looking for.
Since users expected privacy—whether from governments or
corporations—making the private key accessible undermines the point
of Lavabit’s privacy service. Rather than comply with court’s
orders, Lavabit founder owner Ladar Levison decided to halt
Lavabit’s operations completely.

Levison told BBC that
if he wins the appeal he filed last August, Lavabit could rise from
the dead. It would also set a precedent for future privacy
communication cases.

Brian Hauss, a legal fellow for the American Civil Liberties
Union (ACLU) told BBC News:

Mr Hauss hopes the case can “establish a principle that
governments can’t use a hammer when it should be using a
scalpel”.

“If the court does not find in Lavabit’s favour, technology
companies will look for new ways to protect user data,” he
added.

But judges seem to disagree about the focal point of the case.

PC World explains:

For the proceedings, the judges actively listened to and
questioned the arguments of both sides, though they seemed wary of
turning the case away from the specifics of why Lavabit did not
comply with court orders to turn over data on one of its users, and
towards the larger issues that Lavabit raised in its
highly publicized defense of what scope the government should
have over those parties who hold SSL (secure socket layer) keys to
encrypted data.

Last year, U.S. government meddling led to the closure of
privacy services like Silent
Circle and
CryptoSeal. Faced with a government hostile toward privacy
services, innovative, secure communication products are opening
outside of the United States.

Reason‘s J.D. Tuccille
argued in August:

Unfortunately, the government’s position seems to be
the same as that of the Mafia: If you’re told to do business with
the mob, you don’t get to decide otherwise.

We’ll see if the government continues down that path. A decision
could take a few weeks.

Read more on Lavabit here.