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Lavabit loses contempt of court appeal over protecting Snowden, customers

Judges rule complaints about government power are too little, too late

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Ladar Levison, owner of the now-defunct Lavabit email service, could be facing a heavy fine after an appeals court ruled that he failed to properly contest the government's attempts to install taps on his servers.

Lavabit was the secure email service picked by NSA whistleblower Edward Snowden as the repository of his personal email. After Snowden went public with his identity, the Feds came knocking on Levison's door, demanding the encryption keys to his servers under US "pen register" and "trap and trace" statutes.

Levison refused, and the government came back with a court order to force the issue. Levison contested the case but lost, was found in contempt, and was fined $5,000 a day. That only lasted for two days before he handed over the keys and shortly afterwards shut down Lavabit, saying he was unwilling to "become complicit in crimes against the American people."

On Wednesday the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, turned down Levison's appeal against the contempt charge – not on the grounds that he was being forced to hand over control of his servers, but because he didn’t seriously challenge the legality of the government's request in court the first time.

"In view of Lavabit’s waiver of its appellate arguments by failing to raise them in the district court, and its failure to raise the issue of fundamental or plain error review, there is no cognizable basis upon which to challenge the Pen/Trap Order," the judgment reads.

"The district court did not err, then, in finding Lavabit and Levison in contempt once they admittedly violated that order. The judgment of the district court is therefore affirmed."

Levison's lawyer said that no decision had been made as yet as to whether to appeal to a higher court, but noted that the court's ruling left open the question of the government's legal rights to place surveillance on servers in this way.

"It does seem like it’s likely to recur," the attorney told Politico. "Hopefully, we’ve laid out a road map or at least one road map for why the government's surveillance theories in a case like this are not correct. That may make it easier for the next person in a case like this to prevail." ®

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