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Today Is Lavabit's (and the 4th, 1st Amendments') Day in Court

By William Peacock, Esq. on January 28, 2014 | Last updated on March 21, 2019

Last year, secure email provider Lavabit chose to shut down rather than sell out its customers by complying with a controversial court order.

Today, it is challenging that court order in the Fourth Circuit Court of Appeals.

What's at stake? It's not just the company. It's privacy rights and free speech.

Snowden and the Master Key

As with nearly every data collection controversy, the name at the center of the scandal is Edward Snowden. Shortly after he dropped a dime on his former employer, the National Security Agency, he used the Lavabit email service.

Lavabit promises secure, encrypted email. According to PC Magazine, the government initially wanted access to a single unidentified Lavabit account (Snowden's, perhaps?), but later demanded access to Lavabit's SSL encryption keys. (Basically, a master key to all accounts' data.)

4th Amendment Considerations

The Stored Communications Act has been held to allow warrantless searches of cell phone metadata, and presumably, metadata related to email as well.

But a court order forcing a company to hand over the keys to access every account, which would presumably allow them to access the content of the now-decryptable emails as well, does raise Fourth Amendment concerns.

We'd expect Lavabit to argue that the court order was too far-reaching, especially considering Lavabit's prior offer to provide data on a case-by-case basis.

1st Amendment Considerations

How free would you feel to speak if you knew the government was listening, or at least, capable of listening whenever it wanted to? Would it silence your speech?

Lavabit chose to shut down rather than "become complicit in crimes against the American people." Shortly after the company announced its closure, a competitor, Silent Circle, closed its secure e-mail service as well, noting that metadata remained unprotected. Groklaw, an award-winning law blog, also shut down, with its founder Pamela Jones stating, "Now that I know that ensuring privacy online is impossible, I find myself unable to write."

Today's case isn't just important to a single company. It's important to anyone who is concerned that the pursuit of a single person, or the text of a decades-old law, can allow warrantless searches and unfettered access to the private data of innocent Americans.

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