Case: United States v. Lavabit

1:13-ec-00297 | U.S. District Court for the Eastern District of Virginia

Filed Date: July 9, 2013

Closed Date: 2014

Clearinghouse coding complete

Case Summary

In June 2013, the Federal Bureau of Investigation (FBI) served a grand jury subpoena on Lavabit, LLC, an email provider for billing and subscriber information associated the email address of a target of an ongoing criminal investigation. On June 10, 2013 the United States District Court for the Eastern District of Virginia issued an order by request of the United States pursuant to 18 U.S.C. § 2703(d), requiring Lavabit to disclose identifying information associated with the email address. Info…

In June 2013, the Federal Bureau of Investigation (FBI) served a grand jury subpoena on Lavabit, LLC, an email provider for billing and subscriber information associated the email address of a target of an ongoing criminal investigation. On June 10, 2013 the United States District Court for the Eastern District of Virginia issued an order by request of the United States pursuant to 18 U.S.C. § 2703(d), requiring Lavabit to disclose identifying information associated with the email address. Information to be disclosed included names, residential addresses, telephone records, IP addresses, payment and billing records, and records of user activity such as log files, date, time, and length of connections, data transfer volume, and source and destination IP addresses.

On June 28, 2013 the district court authorized, pursuant to 18 U.S.C. § 3123, installation and use of a pen register and a trap and trace device (pen/trap device) for sixty days to capture all non-content information sent to or from the specific email address serviced by Lavabit. The district court ordered Lavabit to provide technical assistance to the FBI to install the pen/trap device. When FBI agents appeared at the residence Ladar Levison, the owner and operator of Lavabit, that same day, Mr. Levison stated that Lavabit could not provide the requested information because the account user had enabled encryption services and Lavabit would not provide the requested info. Later that day, the United States secured an order directing Lavabit to comply with the first June 28, 2013 order, under threat of criminal contempt of court.

In early July 2013, the United States moved for an order directing Mr. Levison to show cause why he had failed to comply with the June 28, 2013 order. The district court ordered Mr. Levison to appear before the court to show cause why Lavabit failed to comply. The United States also issued a subpoena for Mr. Levison to testify before a grand jury and to produce the Lavabit encryption keys. Mr. Levison contacted the FBI offering to collect the information himself in lieu of installing a pen/trap device. The United States refused the terms and on July 16, 2013, the district court issued a search warrant to Lavabit for all information necessary to decrypt communications sent to or from the target email address.

Mr. Levison appeared testified before the grand jury and agreed to the installation of the pen/trap device, but continued to refuse to offer the encryption keys. At a hearing on August 1, 2013, the district court denied Mr. Levison's motions to unseal the proceedings and to quash the subpoena and warrant, and directed Mr. Levison to provide the government with the encryption keys by the following day. Mr. Levison provided the key in hard-copy format, and the government requested a copy in electronic format. Upon non-receipt, the United States moved for sanctions in the amount of $5,000 per day. The district court granted the motion on August 5 and on August 7, Mr. Levison produced a disk containing the encryption keys.

The same day, Mr. Levison shut down all operations at Lavabit and discontinued its email service. Lavabit appealed the contempt order to the United States Court of Appeals for the Fourth Circuit.

On April 16, 2014, Judge G. Steven Agee of the Fourth Circuit affirmed the contempt sanctions. Judge Agee held that (1) the provider's single-sentence objection to turning over encryption keys did not preserve for appeal his challenge to the Pen/Trap order; (2) the provider was on notice that the Pen/Trap order implicated its encryption keys, and thus could not have been "invited" or "induced" to waive its challenge to the order; and (3) the provider abandoned any argument on appeal that the district court plainly erred, much less fundamentally erred, in relying upon the Pen/Trap order to find provider in civil contempt for failing to provide its encryption keys. In re Under Seal, 749 F.3d 276 (4th Cir. 2014).

Summary Authors

Elizabeth Homan (12/1/2013)

Jessica Kincaid (6/23/2014)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/6944182/parties/united-states-v-in-re-pen-register/


Judge(s)

Buchanan, Theresa Carroll (Virginia)

Attorney for Plaintiff

Ben'ary, Michael (Virginia)

Boente, Dana J. (District of Columbia)

Fitzpatrick, Benjamin (District of Columbia)

Attorney for Defendant

Binnall, Jesse R. (Virginia)

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Documents in the Clearinghouse

Document

1:13-ec-00254

Order

In Re Application of the United States of America for an Order Pursuant to 18 U.S.C § 2703(d)

June 10, 2013

June 10, 2013

Order/Opinion

1:13-ec-00297

Order

In the Matter of the Application of the United States of America for an Order Authorizing the Installation and Use of a Pen Register/Trap and Trace Device on an Electronic Mail Account

June 28, 2013

June 28, 2013

Order/Opinion

1:13-ec-00297

Order Compelling Compliance Forthwith

In the Matter of the Application of the United States of America for an Order Authorizing the Installation and use of a Pen Register/Trap and Trace Devixe on an Electronic Mail Account

June 28, 2013

June 28, 2013

Order/Opinion

1:13-ec-00297

Motion for Entry of an Order to Compel

In the Matter of the Application of the United States of America for an Order Authorizing the Installation and use of a Pen Register/Trap and Trace Device on an Electronic Mail Account

June 28, 2013

June 28, 2013

Pleading / Motion / Brief

1:13-ec-00297

Order to Show Cause

In the Matter of the Application of the United States of America for an Order Authorizing the Installation and use of a Pen Register/Trap and Trace Devixe on an Electronic Mail Account

July 9, 2013

July 9, 2013

Order/Opinion

1:13-ec-00297

Motion of the United States For an Order to Show Cause

In the Matter of the Application of the United States of America for an Order Authorizing the Installation and use of a Pen Register/Trap and Trace Devixe on an Electronic Mail Account

July 9, 2013

July 9, 2013

Pleading / Motion / Brief

1:13-ec-00297

Supplement to the Motion of the United States for an Order to Show Cause

In the Matter of the Application of the United States of America for an Order Authorizing the Use of a Pen Register/Trap Device on an Electronic Mail Account

July 16, 2013

July 16, 2013

Pleading / Motion / Brief

1:13-ec-00297

Subpoena to Testify Before the Grand Jury

In the Matter of the Application of the United States of America for an Order Authorizing the Installation and use of a Pen Register/Trap and Trace Devixe on an Electronic Mail Account

July 16, 2013

July 16, 2013

Notice Letter

1:13-sw-00522

Order to Seal

In the Matter of Search of

July 16, 2013

July 16, 2013

Order/Opinion

1:13-sw-00522

Order

In Re: Application of the United States of America for an Order Pursuant to 18 U.S.C § 2705(b)

July 16, 2013

July 16, 2013

Order/Opinion

Docket

See docket on RECAP: https://www.courtlistener.com/docket/6944182/united-states-v-in-re-pen-register/

Last updated March 29, 2024, 3:04 a.m.

ECF Number Description Date Link Date / Link
25

ORDER granting 24 Motion to Unseal Document as to In Re: Pen Register (1). ORDERED that the above-captioned cases are unsealed to allow the Clerk's Office to file on the public docket and make electronically available through CM/ECF the following pleadings, transcripts, and order as redacted in accordance with the Attachments to this Order. Signed by District Judge Claude M. Hilton on 2/24/2016. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4, # 5 Attachment 5, # 6 Attachment 6, # 7 Attachment 7, # 8 Attachment 8, # 9 Attachment 9, # 10 Attachment 10, # 11 Attachment 11 Part 1, # 12 Attachment 11 Part 2, # 13 Attachment 11 Part 3, # 14 Attachment 12 Part 1, # 15 Attachment 12 Part 2, # 16 Attachment 12 Part 3, # 17 Attachment 13, # 18 Attachment 14, # 19 Attachment 15, # 20 Attachment 16, # 21 Attachment 17) (rban, ) (Additional attachment(s) added on 3/4/2016: # 22 Redacted Docket Sheet) (rban, ). (Entered: 03/04/2016)

Feb. 24, 2016

Feb. 24, 2016

PACER

Case unsealed as to In Re: Pen Register (rban, )

March 4, 2016

March 4, 2016

PACER
26

Consent MOTION to Unseal by USA as to In Re: Pen Register. (rban, ) (Entered: 06/13/2016)

June 13, 2016

June 13, 2016

PACER
27

ORDER granting 26 Consent Motion to Unseal as to In Re: Pen Register (1). ORDERED that the above-captioned cases are unsealed to allow the Clerk's Office to file on the public docket and make electronically available through CM/ECF system the pleadings, transcripts, and orders as redacted in accordance with the Attachments to this Order. All redacted information remains under seal; that all non-disclosure orders applying to Mr. Ladar Levinson and Lavabit, LLC in the above captioned matter are vacated. Signed by District Judge Claude M. Hilton on 6/13/2016. (Attachments: # 1 Docket 1, # 2 Docket 2, # 3 Docket 3, # 4 Docket 4, # 5 Docket 5, # 6 Docket 6, # 7 Docket 7, # 8 Docket 8, # 9 Docket 9, # 10 Docket 10, # 11 Docket 11 Part 1, # 12 Docket 11 Part 2, # 13 Docket 11 Part 3, # 14 Docket 12 Part 1, # 15 Docket 12 Part 2, # 16 Docket 12 Part 3, # 17 Docket 13, # 18 Docket 14, # 19 Docket 15, # 20 Docket 16, # 21 Docket 17, # 22 Docket Sheet) (rban, ) (Entered: 06/13/2016)

June 13, 2016

June 13, 2016

PACER

Case Details

State / Territory: Virginia

Case Type(s):

National Security

Key Dates

Filing Date: July 9, 2013

Closing Date: 2014

Case Ongoing: No

Plaintiffs

Plaintiff Description:

The plaintiff is the U.S. The Defendant is Lavabit LLC, an email service provider located in Dallas, Texas, from which the government sought records.

Plaintiff Type(s):

U.S. Dept of Justice plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Lavabit (Dallas), Private Entity/Person

Case Details

Causes of Action:

FISA Title III Warrant (Physical Search), 50 U.S.C. §§ 1821-1829

Constitutional Clause(s):

Unreasonable search and seizure

Available Documents:

Injunctive (or Injunctive-like) Relief

Non-settlement Outcome

Any published opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Litigation

Content of Injunction:

Warrant/order for search or seizure

Required disclosure

Issues

General/Misc.:

Confidentiality

Records Disclosure

Search policies

Terrorism/Post 9-11 issues