Lavabit Owner Fined For Resisting FBI Demands

The owner of shuttered encrypted email service provider Lavabit was being fined $5,000 per day after he refused to give the FBI unfettered access to the systems being used to handle every Lavabit user's communications.

That fact was revealed this week after a federal judge unsealed more than 160 pages of partially redacted documents relating to a June 28 authorization of a pen registration trap on the email account of a Lavabit account holder and to subsequent legal wrangling between Lavabit founder Ladar Levison and federal prosecutors.

While the account holder's name was redacted throughout the court documents, all evidence points to it being NSA whistleblower Edward Snowden. In fact, his name was mentioned extant in one document -- filed by Levison's attorney -- but only in relationship to recent concerns by the public over U.S. government spying.

[ 13 men have been charged with attacking sites of RIAA and other organizations thought to be hostile to piracy sites and WikiLeaks. Read more at Operation Payback: Feds Charge 13 On Anonymous Attacks. ]

Levison's service was built to provide anonymity -- not just for the content of their messages, but also the date and time they were sent, the IP addresses for which they were intended, and other metadata. Ultimately, rather than comply with a court order requiring him to disclose all encryption keys and SSL keys pertaining to Snowden's account, as well as all information necessary to decrypt data stored in or otherwise associated with that account, Levison pulled the plug on Lavabit.

His move drew plaudits from many privacy advocates.

But the full story is a little more complicated, as the unsealed court documents now reveal. For starters, Levison -- who was previously subject to a gag order -- was in a bind. "I have always agreed to the installation of the pen register device," he said in a related court hearing on July 16, according to the unsealed documents. "I have only ever objected to turning over the SSL keys because that would compromise all of the secure communications in and out of my network, including my own administrative traffic."

But under U.S. law, with a court order, the FBI has a legal right to install a pen trap device and retrieve email metadata during a criminal investigation. Levison, however, had built a system where the keys encrypting the content of emails were the same keys used to encrypt metadata, and he couldn't easily separate one from the other without extensive coding changes to Lavabit's infrastructure. While he offered to undertake such changes -- in return for "reasonable expenses" of at least $2,000 to cover 60 days' worth of development work -- the FBI argued, and a judge agreed, that given the ongoing criminal investigation, it had a right to the information in a much more timely manner.

So Levison offered to retrieve required messages on a daily basis and upload them to an FBI server. Again, however, the bureau said that wouldn’t meet its requirements; it apparently wanted to follow Snowden's email-related metadata in real time. Levison, meanwhile, argued that the FBI's request for real-time pen trap information didn't appear to be required in the wording of the subpoena he'd received.

On August 2, facing the prospect of a $1,000 daily fine for noncompliance, Levison did furnish the FBI with a printout of the information that would be required to operate the pen register. But according to a court document filed by U.S. Attorney Neil H. MacBridge, which read, "this printout, in what appears to be 4-point type, consists of 11 pages of largely illegible characters," it would prove worthless to the bureau if, after the information had been entered manually, any single character was typed incorrectly. Levison subsequently failed to provide the requested information electronically in an industry standard format, despite repeated requests from the Department of Justice.

As a result, a federal judge slapped Levison with a $5,000 daily fine on August 5. Three days later Levison pulled the plug on Lavabit, which he said had more than 400,000 subscribers and generated annual income of between $50,000 and $100,000. Because he was subject to a gag order, Levison released a statement at that time saying only, "I've shut down Lavabit because I refuse to be complicit in the crimes against the American people and the U.S. Constitution. I wish I could say more about our situation."

He also launched an appeal for funds to help pay for related legal costs. The fundraising campaign, which lists a goal of $96,000, by Friday morning had raised more than $70,000, courtesy of more than 1,800 donors.