The PJ Tatler

Snowden E-Mail Provider Under Threat of Arrest for Non-Cooperation

Want a definition of “Orwellian”? Here you go.


The owner of an encrypted email service used by ex-NSA contractor Edward Snowden said he has been threatened with criminal charges for refusing to comply with a secret surveillance order to turn over information about his customers.

“I could be arrested for this action,” Ladar Levison told NBC News about his decision to shut down his company, Lavabit LLC, in protest over a secret court order he had received from a federal court that is overseeing the investigation into Snowden.

Lavabit said he was barred by federal law from elaborating on the order or any of his communications with federal prosecutors. But a source familiar with the matter told NBC News that James Trump, a senior litigation counsel in the U.S. attorney’s office in Alexandria, Va., sent an email to Levison’s lawyer last Thursday – the day Lavabit was shuttered — stating that Levison may have “violated the court order,” a statement that was interpreted as a possible threat to charge Levison with contempt of court.

Trump, who has been a lead attorney on high-profile leak investigations targeting former CIA officers John Kiriakou and Jeffrey Sterling, did not respond to a request for comment, nor did prosecutors in the U.S. Attorney’s Office, whose prosecutors have charged Snowden with violations of the Espionage Act. “We have no comment,” said Andrew Ames, a spokesman for the Justice Department.

Levison, a 32-year-old entrepreneur who ran his company out of a Dallas apartment, said in a public statement last Thursday that he made “the difficult decision” to shut down Lavabit because he did not want “to become complicit in crimes against the American people.”

The court order that prompted the action is believed by legal observers to be a sealed subpoena or a national security letter requiring him to cooperate in surveillance related to the Snowden investigation. Recipients of such legal orders are barred from publicly comment on them. Levison said he believes this prohibition is a violation of his First Amendment rights while the underlying request violated the Fourth Amendment rights of his customers. “I’m fighting it in every way,” said Levison, adding that he is challenging the government’s action in a federal appeals court.

I have no idea of the legal standing of Levison to take this action. (Hopefully, one of PJM’s crackerjack attorney-columnists can address this issue.) But to my eyes, this is a lot different than trying to compel a reporter to give up their sources. The decision to shut down his company rather than comply with a court order should be beyond the government’s ability to influence. Those surveillance “requests” from government are supposed to be voluntary. Levison’s actions reflect the notion that his company is independent and not subject to imperial decrees from the NSA or the Department of Justice.

This is especially true since there are indications that the government wanted to scoop up data from all of his customers — not just Snowden:

Levison stressed that he has complied with “upwards of two dozen court orders” for information in the past that were targeted at “specific users” and that “I never had a problem with that.” But without disclosing details, he suggested that the order he received more recently was markedly different, requiring him to cooperate in broadly based surveillance that would scoop up information about all the users of his service. He likened the demands to a requirement to install a tap on his telephone.

Perhaps the Feds figure that as long as the’re going after Snowden, they may as well peek at who else doesn’t want the NSA reading their mail. It could be an interesting list full of international criminals and terrorists. Or, it could be a lot of ordinary citizens who don’t like the idea of government snooping around. Unless the government has specific information regarding the former, they must assume that Levison’s customers belong to the latter group. But that apparently is not the case here.

It should be repeated that we don’t know what exactly the government is after with regards to Mr. Snowden’s email account. But the accounts of all of Mr. Levison’s customers should be off limits unless the government has specific information that it wants to collect. Trolling for data on suspicion alone is exactly why the safeguards of the FISA court were set up in the first place. In the modern surveillance state, that doesn’t seem to make any difference.