[LINK] The perverse legal situation of gagging - Lavabit owner speaks out - a little

[Jan Whitaker]

[Privacy is different from secrecy, as we are 
seeing in the NSA fallout. Secret court orders 
that gag free speech is perverse in a country 
that espouses the rule of law to face ones 
accusers. I can't get my head around this. And 
it's the same in Australia, don't you worry bout that.]

http://www.theguardian.com/world/2013/aug/22/lavabit-founder-us-surveillance-snowden

Lavabit founder: 'My own tax dollars are being used to spy on me'

Since shuttering his email service, which was 
used by NSA whistleblower Edward Snowden, Ladar 
Levison has been stuck in a Kafkaesque legal 
battle – and that's about all he can say

Dominic Rushe
theguardian.com, Friday 23 August 2013 00.04 AEST

The Obama administration has created a 
surveillance state on a scale not seen since 
senator Joe McCarthy's infamous 1950s crackdown 
on suspected communists, according to the tech 
executive caught up in crossfire between the NSA 
and whistleblower Edward Snowden.

"We are entering a time of state-sponsored 
intrusion into our privacy that we haven't seen 
since the McCarthy era. And it's on a much 
broader scale," Ladar Levison, founder of 
Lavabit, told the Guardian. The email service was 
used by Snowden and is now at the center of a 
potentially historic legal battle over privacy rights in the digital age.

Levison closed down his service this month, 
posting a message about a government 
investigation that would force him to "become 
complicit in crimes against the American people" 
were he to stay in business. The 32-year-old is 
now stuck in a Kafkaesque universe where he is 
not allowed to talk about what is going on, nor 
is he allowed to talk about what he's not allowed 
to talk about without facing charges of contempt of court.

It appears that Levison – who would not confirm 
this – has received a national security letter 
(NSL), a legal attempt to force him to hand over 
any and all data his company has so that the US 
authorities can track Snowden and anyone he 
communicated with. The fact that he closed the 
service rather than comply may well have opened 
him up to other legal challenges – about which he also can not comment.

What he will say is that he is locked in a legal 
battle he hopes one day will finally make it 
clear what the US government can and can not 
legally demand from companies. "The information 
technology sector of our country deserves a 
legislative mandate that will allow us to provide 
private and secure services so our customers, 
both here and abroad, don't feel they are being 
used as listening posts for an American surveillance network," he says.

And in the meantime what he will not do is stay 
silent – within legal limits. "I will stand on my 
soapbox and shout and shout as loudly as I can 
for as long as people will listen. My biggest 
fear is that the sacrifice of my business will 
have been in vain. My greatest hope is that same 
sacrifice will result in a positive change," he 
says, words that closely echo Snowden's own 
feelings about becoming a whistleblower.

Levison first heard of Snowden when he revealed 
himself in the Guardian in June. The first he 
knew about Lavabit's involvement was when Snowden 
used a lavabit.com account to announce a press 
conference at Moscow's airport, where he was left 
in limbo following his flight from Hong Kong.

"It's not my place to decide whether what Snowden 
did is right or wrong," said Levison. "I 
understand the need for secrecy. I understand 
that the government needs to keep the names of 
people they are currently investigating and doing 
surveillance on secret. I am wholly opposed, and 
find it contrary to our way of life, for the 
government to keep the methods that they use to 
conduct that surveillance a national secret. What 
they are really doing is using that secrecy to 
hide un-American actions from the general public," he says.

The extent of government surveillance illustrated 
by Snowden's leaks shows that the Obama 
administration is willing "to sacrifice the 
privacy of the many so they can conduct surveillance on the few", Levison said.

As his legal woes mounted he and his lawyer, 
Virginia-based Jesse Binnall, set up a fund in 
the hope of raising some cash. "If there's one 
thing the government has it's no shortage of 
lawyers. My own tax dollars are being used to spy 
on me," he says. "If you took all the people we 
currently have employed as peeping toms and 
turned them into school teachers, we'd have a much smarter country," he said.

Levison said he is overwhelmed by the support he 
has received. The fund already has $140,000 – 
most of it in $5 and $10 donations.

"Mainstream America is starting to realise just 
how easy it is for their government to spy on 
them. And more importantly they are realising 
that their government is spying on them." The 
extent of all this surveillance would have a 
"chilling effect on democracy", he said.

Sitting in an office near his Dallas home, 
Levison looks by turns angry and determined. His 
dog Princess plays at his feet, begging treats. 
We go on and off the record, as he constantly 
attempts to parse what he can and cannot say.

Levison is not an easy man to get hold of. His 
phone rings off the hook, he doesn't answer it 
unless he knows the number, nor does he listen to 
voicemail. He has no email now that his own 
service is shut down and relies on texts or Facebook to stay in touch.

After the NSA revelations and what he has been 
through he says: "I'm not sure I trust any 
electronic communication that involves any 
commercial service," he says. Is it very 
frustrating? I ask. "I'm not sure I am allowed to say," he replies.

Lavabit was originally designed as "email by 
geeks for geeks", says Levison. After university 
he bought the name Nerdshack.com and was looking 
to do something with it. Email seemed like a good 
bet. "I wasn't thinking about security at all," 
he says. What eventually became Lavabit was a 
service aimed at tech-savvy, heavy email users – 
people exchanging 100-plus messages a day. Then 
came the Patriot Act and Levison decided he could 
– and should – offer more to his clients.

The Patriot Act was introduced in the wake of 
9/11, handing new powers to the US authorities to 
gather information. "All of a sudden we felt 
vulnerable. We were willing to sacrifice basic 
freedoms. Like the freedom to communicate, to 
associate, for an enhanced feeling of security," said Levison.

Obama was a critic of the act before his election 
but Levison believes the government's willingness 
to push that authority has only expanded under 
his presidency. "What we have seen in recent 
years is their willingness to use those laws in 
ways personally I consider to be 
unconstitutional, unethical and immoral," he says.

The act led Levison to make a number of "very 
conscious decisions". He would not log or collect 
any information that was not a technical 
necessity. No names, addresses, no mobile number, 
no alternative emails. "I didn't need to know 
that," he says. "I was removing myself from the 
equation." But he still had his clients' emails. 
So Lavabit offered a system that allowed users to 
encrypt their emails in a way that they could 
only be read by someone with a password key – a key Levison did not keep.

The idea was to protect people's emails from 
phishers, scammers and unwanted intrusions. He 
finds it difficult to understand why people think 
there is something nefarious about using 
encryption. "We use encryption every day to 
protect information. Encryption is effectively 
part of our everyday life," he says. "It's that 
little lock you see in your browser everyday. 
Everytime you go to the bank or visit PayPal."

The US authorities did ask him on a couple dozen 
occasions to hand over information on certain 
users, and he did. "I never intended the service 
to be anonymous. There are things that I could 
have done that would have catered to criminals 
that I would not do," he said. "I was always 
comfortable turning over what I had available."

Levison cannot comment on specifics of what made 
him so uncomfortable this time that he closed his 
business but it was clearly a difficult decision. 
"I walked away from 10 years of my life, tens of 
thousands of man hours that I had yet to benefit 
from," he says. "I had to choose whether or not 
to compromise my ethics and my moral code to stay 
in business or do what I thought was right and 
shut down the business." As the NSA documents 
have shown, other larger companies have faced 
similar dilemmas and, often after legal battles, 
acquiesced and cooperated with the authorities.

"If it's illegal to offer a private way to 
communicate to Americans, I didn't want to remain 
in the email business," he says. "I think our 
constitution guarantees our right to communicate 
privately without fear of government 
surveillance. But the fact is Congress has passed laws that say otherwise."

Lavabit's closure has inspired others to follow 
suit. Silent Circle, another encrypted 
communications service, shut down and deleted its 
email program shortly after Lavabit. Founder Phil 
Zimmermann, who created the widely used Pretty 
Good Privacy (PGP) data encryption and decryption 
computer program, said he had seen "the writing on the wall".

Pamela Jones (aka PJ) closed her award-winning 
blog Groklaw this week citing Levison's decision 
to shutter Lavabit. "The owner of Lavabit tells 
us that he's stopped using email and if we knew 
what he knew, we'd stop too," she wrote in a 
final post. "I'm not a political person, by 
choice, and I must say, researching the latest 
developments convinced me of one thing – I am 
right to avoid it," she wrote. "What I do know is 
it's not possible to be fully human if you are 
being surveilled 24/7 
 I hope that makes it 
clear why I can't continue. There is now no shield from forced exposure."

Karen Greenberg, director of the Center on 
National Security at Fordham Law School, said 
Levison along with Snowden and others were at the 
forefront of a debate over privacy that had been 
simmering since 9/11 and was now coming to a 
head. "This is a very dangerous moment for these individuals," she said.

There are numerous legal issues here – not just 
about encryption but about also about a person's 
right to publicly defend themselves, she said.

"I don't think legal precedent can tell us what 
is going to happen here. We are in a new 
conversation about how broadly national security 
letters can be used," she said. "What this 
illustrates is the way in which secrecy 
absolutely chills the conversation. He [Levison] 
is already treading on thin ice, if he talks at 
all he could be up on charges of contempt."

"How many individuals are going to have to – what 
they would see as – martyr themselves? But it's 
not just renegade kids. Facebook, Google and 
others have pushed back on national security letters too."

She said she expected the fight would now move to 
Congress where there is already some push back 
against the powers of the NSA and the scale of 
the US's surveillance operations. And from there 
to the legal system – perhaps one day ending up 
in the supreme court. The legal system is already 
showing some signs of rebellion. In a ruling 
released in March US district judge Susan Illston 
said that NSLs suffer from "significant 
constitutional defects" and violate the first 
amendment because of the way they effectively gag companies that receive them.

"There is a lot of sentiment among Americans that 
they know they are being surveilled and what does 
it matter. But hounding people is going to have 
repercussions," said Greenberg. "Knowing about 
Prism and the NSA's violations will sink in over 
time. Americans see privacy as one of their 
rights. What does it mean if you can't encrypt 
anything? It's a huge philosophical question with 
very large legal implications."

As for Levison he is learning to live life 
without email So far it's been difficult but not 
impossible. One day he hopes, when his legal woes 
are behind him: "I'll get my inbox back."



Melbourne, Victoria, Australia
jwhit at janwhitaker.com
blog: http://janwhitaker.com/jansblog/
business: http://www.janwhitaker.com

Our truest response to the irrationality of the 
world is to paint or sing or write, for only in such response do we find truth.
~Madeline L'Engle, writer

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