Statement on Lavabit Citation in Apple Case

[Jeffrey Walton <noloader () gmail com>]

(From John Young on another list):
http://www.facebook.com/KingLadar/posts/10156714933135038

As many of you already know, the government cited the Lavabit case in
a footnote. The problem is their description insinuates a precedent
that was never created. Obviously I was somewhat disturbed by their
misrepresentation. So I decided to draft a statement. And keep in
mind, these are the same people who say "trust us." Click continue to
read it, and enjoy. L~

Press Release
Statement on Lavabit Citation in Apple Case
For Immediate Release: March 15, 2016

Dallas, TX--Lavabit founder Ladar Levison has issued the following
statement regarding the citation of his company’s appeal from 2014 in
the government’s March 10th reply brief, which seeks extraordinary
assistance from Apple under the All Writs Act, and is currently
pending in the Central District of California:

The government's citation of the Lavabit case, and their description
of its outcome, is disturbingly disingenuous. The language used (in
footnote 9, page 22) is incredibly misleading, as it insinuates a
precedent unsupported by the appellate court’s ruling. The government
implies the 4th circuit, in “affirming contempt sanctions,” supported
a district court decision which compelled Lavabit “to assist law
enforcement,” by surrendering its “private SSL encryption key.” This
verbiage suggests the seizure of third party encryption keys was found
lawful by the appellate court, which is wholly unsupported by the
appellate court’s opinion. Rather, the 4th circuit chose to rely on a
contrived procedural technicality, holding that Lavabit “waived” its
right to an appeal, and allowed the court to avoid addressing the
substantive questions raised in the case. In my opinion, the
government’s depiction is so far removed from reality that it calls
into question the legitimacy of every citation.

Even more disturbing is the government’s reliance upon a ruling, where
a small business was forced to mount an adversarial defense in a
secret proceeding (which Lavabit sought to unseal multiple times), as
a precedent for the seizure of source code and encryption keys. Given
only a week to prepare at the district level, and then denied review
at the appellate level, the Lavabit case lacks the validity of due
process, subverts the rule of law, and perverts the function of the
judicial branch. This citation presupposes a deliberate attempt to
seek the creation of a legal framework, through the courts, for the
forced forfeiture of intellectual property which “might” facilitate
surveillance. There is no basis, in case law or statute, for such
authority, and suggests a strategy designed to revive the Star
Chamber, and thwart the constitutional rights of all Americans. Laws
formed in secret will always find themselves wanting for authority as
they, by definition, lack the consent of the people.

The current Apple case, together with the Lavabit case, join a growing
litany of recent court decisions which have eroded away our personal
liberties. Taken together, these rulings force us to ask difficult
questions. Specifically, can the federal government be trusted to
defend our rights, and protect our freedom?

Quite simply, the deceitful description of the Lavabit case by the
Department of “Justice” is an attempt to plunder our nation’s law
libraries in search of incremental infringements upon our liberties,
which may have seemed minor at the time, but are now being assembled
into a slippery slide capable of carrying us to the bottom of a
dangerous slope. History proves how easy it is to fall, and how hard
it is to climb. If we grant terrorists, miscreants, and scoundrels the
ability to frighten us into surrendering our rights, then we also give
them a weapon capable of far more harm than any firearm or explosive.
I sincerely hope Judge Pym considers the government’s argument with
the suspicion it deserves, and carefully considers the consequences of
siding with law enforcement. While the current case may seem simple on
its surface, a decision in favor of law enforcement will threaten our
ability to think privately, speak freely, and receive meaningful due
process in the future.

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