Usg-Lavabit-Unsealed

U.S. District Court Eastern District of Virginia - (Alexandria) CRIMINAL DOCKET FOR CASE #: 1:13-sw-00522-CMH-1 Case title: USA v. In Re: Information Associated Date Filed: 07/16/2013 Date Terminated: 03/24/2015 with [Redacted] Assigned to: District Judge Claude M. Hilton Appeals court case number: 13-4625 Defendant (1) In Re: Information Associated with [Redacted] TERMINATED: 03/24/2015 Pending Counts Disposition None Highest Offense Level (Opening) None Terminated Counts Disposition None Highest Offense Level (Terminated) None Complaints Disposition None Interested Party Ladar Levinson TERMINATED: 03/24/2015 represented by Jesse R. Binnall Harvey & Binnall PLLC doing business as Lavabit LLC TERMINATED: 03/24/2015 717 King Street Suite 300 Alexandria, VA 22314 703-888-1943 Fax: 703-888-1930 Email: jbinnall@harveybinnall.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained Plaintiff USA represented by James L. Trump United States Attorney's Office 2100 Jamieson Ave Alexandria, VA 22314 (703)299-3700 Email: jim.trump@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael Ben'Ary US Attorney's Office (Alexandria-NA) 2100 Jamieson Avenue Alexandria, VA 22314 **NA** 703-299-3700 Email: michael.ben'ary2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Tracy Doherty McCormick US Attorney's Office (Alexandria-NA) 2100 Jamieson Avenue Alexandria, VA 22314 NA 703 299-3715 Email: tracy.d.mccormick@usdoj.gov ATTORNEY TO BE NOTICED Designation: US Attorney Date Filed # Docket Text 02/24/2016 36 ORDER granting 35 Motion to Unseal Document as to In Re: Information Associated with [Redacted] (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, # 12 Attachment 12, # 13 Attachment 13, # 14 Attachment 14, # 15 Attachment 15, # 16 Attachment 16, # 17 Attachment 17, # 18 Attachment 18, # 19 Attachment 19 Part 1, # 20 Attachment 19 Part 2, # 21 Attachment 19 Part 3, # 22 Attachment 19 Part 4, # 23 Attachment 19 Part 5, # 24 Attachment 19 Part 6, # 25 Attachment 19 Part 7, # 26 Attachment 19 Part 8, # 27 Attachment 19 Part 9, # 28 Attachment 19 Part 10, # 29 Attachment 20 Part 1, # 30 Attachment 20 Part 2, # 31 Attachment 20 Part 3, # 32 Attachment 21, # 33 Attachment 22, # 34 Attachment 23, # 35 Attachment 24, # 36 Attachment 25, # 37 Attachment 26, # 38 Attachment 27, # 39 Attachment 28, # 40 Attachment 29) (rban, ) (Additional attachment(s) added on 3/4/2016: # 41 Redacted Docket Sheet) (rban, ). (Entered: 03/04/2016) 03/04/2016 Case unsealed as to In Re: Information Associated with [Redacted] (rban, ) (Entered: 03/04/2016) 3/16/2016 8:10 PM Document Selection Menu Select the document you wish to view. Document Number: 36 4 pages 0.5 mb Attachment Description 1 Attachment 1 12 pages 1.7 mb 2 Attachment 2 5 pages 0.5 mb 3 Attachment 3 5 pages 0.7 mb 4 Attachment 4 1 page 181 kb 5 Attachment 5 2 pages 291 kb 6 Attachment 6 1 page 173 kb 7 Attachment 7 2 pages 209 kb 8 Attachment 8 12 pages 1.8 mb 9 Attachment 9 10 pages 1.4 mb 10 Attachment 10 2 pages 214 kb 11 Attachment 11 1 page 95 kb 12 Attachment 12 12 pages 2.3 mb 13 Attachment 13 2 pages 219 kb 14 Attachment 14 2 pages 206 kb 15 Attachment 15 1 page 192 kb 16 Attachment 16 15 pages 2.1 mb 17 Attachment 17 2 pages 144 kb 18 Attachment 18 2 pages 145 kb 19 Attachment 19 Part 1 17 pages 8.6 mb 20 Attachment 19 Part 2 20 pages 9.1 mb 21 Attachment 19 Part 3 21 pages 2.2 mb 22 Attachment 19 Part 4 19 pages 9.2 mb 23 Attachment 19 Part 5 18 pages 9.1 mb 24 Attachment 19 Part 6 18 pages 9.3 mb 25 Attachment 19 Part 7 18 pages 9.4 mb 3/16/2016 8:10 PM 26 Attachment 19 Part 8 19 pages 9.4 mb 27 Attachment 19 Part 9 17 pages 9.4 mb 28 Attachment 19 Part 10 15 pages 7.1 mb 29 Attachment 20 Part 1 82 pages 9.4 mb 30 Attachment 20 Part 2 67 pages 9.4 mb 31 Attachment 20 Part 3 15 pages 1.8 mb 32 Attachment 21 2 pages 266 kb 33 Attachment 22 41 pages 6.4 mb 34 Attachment 23 4 pages 0.6 mb 35 Attachment 24 2 pages 188 kb 36 Attachment 25 26 pages 4.0 mb 37 Attachment 26 1 page 134 kb 38 Attachment 27 6 pages 0.8 mb 39 Attachment 28 2 pages 209 kb 40 Attachment 29 27 pages 3.8 mb 41 Redacted Docket Sheet 5 pages 1.0 mb Note: You must view each document individually because the combined PDF would be over the 40 MB size limit. Case 1:13-sw-00522-CMH Document 36 Filed 02/24/16 Page 1 of 4 PageID# 562 IN Ti-ilE UNITED S'CATES DIS'l'RICT COURT I-OR THE EASTERN DISTRICr OF VIRGINIA Alexandria Division No. 1;13EC297 IN THI- MA'ITER OF TME APPLICATION OF THE UNITED STATES 01- AMERICA FOR AN ORDER AUTMORIZING THE USE OF A PEN REGISTER/TRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT IN THE MATTER OF THE SEARCH AND No. I:13SW522 SEIZURE OF INFORMATION ASSOCIATED WITH fREDACTni)] THAT IS S rORED AT PREMISES CONTROLLED BY LAVABIT LLC In re Grand Jury No. 13-1 ORDER WHEREAS, on January 7, 2016, the Court denied the Motion to Unseal Records and Vacate Non-Disclosure Orders respecting case numbers 1:13EC297, 1;13SW522, and No. 13-1 and ordered the United States to file on the public docket copies of all the previously filed pleadings, transcripts, and orders with redactions for only the identity of the subscriberand the subscriber's email address; WHEREAS, on February 24, 2016, the United Stales moved to publicly file exparte documents redacted of sensitive, nonpublic facts the disclosure of which could damage the ongoing investigation; WHEREAS, on I'cbruary 24, 2016, the United Slates moved to redact publicly filed documenis of (a) infonnation specific to the grand jury target thai would disclose, in effect, the target's identityor would be protected from disclosure under Fed.R.Crim.P. 6(e), such as the Case 1:13-sw-00522-CMH Document 36 Filed 02/24/16 Page 2 of 4 PageID# 563 criminal statutes under investigation by the grand jurj'; and (b) infonnation, such as the home address ofMr. Lcvison that should be redacted pursuant to Fed.R.Crim.P. 49.1 and EDVA Local Rule 49; The court hereby finds that the government has a compelling interest in keeping under seal certain fads, the disclosure of which could damage the ongoing investigation or is protected by Fed.R.Crim.P. 6(e) and 49.1; the government's interest in keeping the redacted material sealed outweighs any public interest in disclosure; and having considered alternatives to the proposed redactions none will adequately protect those interests; it is hereby 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 the CM/ECF system the following pleadings, transcripts, and orders as redacted in accordance with the Attachments to this Order: I. Case Number 1:13EC297 Redacted Docket Sheet 1:13EC297 Redacted Motion for Order to Show Cause as to In Re: Pen Register (Dkt. #1) Redacted ORDER Granting Motion for Order to Show Cause (Dkt. #2) Redacted Summons Issued in case as to In Re: Pen Register (Dkl.. #3) Redacted Supplement re Motion for Order to Show Cause (Dkt. #4) Redacted Minute Entry for proceedings (Dkt. #5) Redacted Order Denying Motion to Unseal (Dkl. #6) Redacted Motion to Seal the grand jury subpoena (Dkt. #7) Redacted Order Granting Motion to Seal the grand jury subpoena (Dkt. #8) Redacted Minute Entry for Proceedings (Dkt. U9) Redaclcd Scaled Transcript of Proceedings (Dkt. #10) Redacted Under Seal Ex Parte Motion (Dkt. #11) Redacted Scaled Order re UNDER SEAL EX PARTE MOTION (Dkt. #12) Redacted version of Sealed Order (Dkt. #13) Redacted Motion to Unseal Case (Dkt. #14) Redacted Order to Respond to Motion to Unseal Case (Dkt. #15) Case 1:13-sw-00522-CMH Document 36 Filed 02/24/16 Page 3 of 4 PageID# 564 Rcdacicd Response by US to In Re: Pen Register (Dkt. #16) Redacted Protective Order as to In Re: Pen Register (Dkt. #17) Case Number 1:13SW522 1. Redacted Docket Sheet 1: 13SW522 2. 3. 4. 5. Redacted Redacted Redacted Redacted 6. Redacted Appliealion for Non-Disclosure (Dkl. U5) 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. Redacted Nondisclosure Order (Dkt. 116) Redacted Waiver of Personal Appearance (Dkl. #7) Redacted Motion to Unseal Court Records (Dkl. #8) Redacted Motion to Quash Subpoena (Dkt. #9) Redacted Order denying Molion to Unseal and Motion to Quash (Dkt. #10) Redacted Minute Entry (Dkt. #11) Redacted Motion for Sanctions (Dkt. U\2) Redacted Order Granting Motion for Sanctions (Dkt. #13) Redacted Notice of Appeal (Dkt. # 14) Redacted Transmission of Notice of Appeal (Dkt. #15) Redacted Transcript of Proceedings (Dkt. #16) Redacted USCA Case Number 13-4626 (Dkt. #17) Redacted Order of USCA Consolidating Case No. 13-4625 and 4626 (Dkt. #18) Redacted Under Seal Ex Parle Motion (Dkt. # 19) Redacted Sealed Order re Under Seal Ex Pane Motion (Dkt. #20) Redacted version of Sealed Order (Dkl. #21) Redacted Published Opinion of USCA (Dkl. #22) Redacted Judgment of USCA (Dkt. #23) Redacted USCA Mandate re Notice of Appeal (Dkt. #24) Redacted Motion to Unseal Case (Dkt. #25) Redacted Order to Respond lo Motion to Unseal Case (Dkt. #26) Redacted Response by US (Dkt. #27) Redacted Protective Order (Dkt. #28) Redacted Response of the United States in Opposition to Motion to Quash Subpoena and Unseal Court Records (Filed July 31, 2013) (Dkt. #TBD) Search Warrant Application and Afildavit (Dkt. #1) Search Warrant Issued (Dkl. U2) Motion to Seal Search Warrant (Dkl. #3) Order to Seal (Dkl. #4) It is further ORDERED that the originally filed, unredacted pleadings, transcripts, and orders in matters 1:I3EC297, I:I3SW522, and No. 13-1 remain under seal, and that no part of Case 1:13-sw-00522-CMH Document 36 Filed 02/24/16 Page 4 of 4 PageID# 565 ihem may be disclosed without Court order exccpt lo the extent provided above and in the Court's January 7, 2016 Order. It is so ORDERED. ENTERED this-^<^^ of February 2016, at Alexandria, Virginia. Claude M, Hilton Senior United States District Judge Case 1:13-sw-00522-CMH Document 36-1 Filed 02/24/16 Page 1 of 12 PageID# 566 AO 106 (Rev. 06/09) Application for a Sesreh W<in«ii UNDER SEAL United States District Coi for the Eastern District ofVirginia 6P0I3 In the Matter of the Search of U.S Dinsir. (Briefly describe the property to be searched or identify the person by name and address) Case No. 1:13SW522 INFORMATION ASSOCIATED WITH THAT IS STORED AT PREMISES < Pl?rk CONTROLLED BY LAVABfT, LLC APPLICATION FOR A SEARCH WARRANT I, a federal law enforcement officer or an attorney for the government, request a search warrant and state under penalty of perjury that I have reason to believe that on tlie following person or proper^ (identify the person or describe the property to be searched and give its location): See Attachment A located in the District of Northern , there is now concealed (identify the Texas oerson or describe the property to be seized)'. See Attachment B The basis for the search under Fed. R. Crim. P. 41(c) is (check one or more): iSf evidence ofa crime; O contraband, fruits of crime, or other items illegally possessed; • property designed for use, intended for use, or used in committing a crime; O a person to be arrested or a person who is unlawfully restrained. The search is related to a violation of: Code Section 1 The application is based on th See Attached Affidavit sf Continued on the attached sheet. O Delayed notice of days (give exact ending date if more than 30 days: _ ) is requested under 18 U.S.C. § 3103a, the basis of which is set forth on the attached sheet. Reviewed by AUSA/SAUSA: ^ AUSA Michael Ben'Ary Applicant's signature Matthew Braverman, FBI Special Agent f rimed name and title Sworn to before me and signed in my presence. Date: Judge's signatvre City and state; Alexandria, Virginia The Honorable Claude M. Hilton, U.S. District Judge Printed name and title Case 1:13-sw-00522-CMH Document 36-1 Filed 02/24/16 Page 2 of 12 PageID# 567 UNDER SEAL IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA IN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION ASSOCIATED WITH ••••^^^^•THAT Case No. 1;13SW522 IS STORED AT PREMISES CONTROLLED BY Lavabit, Filed Under Seal LLC AFFIDAVIT IN SUPPORT OF AN APPLICATION FOR A SEARCH WAIUIANT I, Matthew Braverman , being first duly sworn, hereby depose and state as follows: INTRODUCTION AND AGENT BACKGROUND 1. I make this affidavit in support of an application for a search warrant for electronically stored information associated with a certain accounts that is stored at premises controlled by Lavabit, LLC, an e-mail provider headquartered at H ^^^m^m m Dallas, Texas, 75204. The information to be seized is described m the following paragraphs and in Attachment A. This affidavit is made in support of an application for a search warrant under 18 U.S.C. §§ 2703(a), 2703(b)(1)(A) ^d 2703(c)(1)(A) to require Lavabit, LLC to disclose to the governmentcopies of the information (including the content of communications) further described in Section I of Attachment B. Upon receipt of the information described in Section I of Attachment B, goverruTient-authorized persons will review that information to locate the items described in Section II of Attachment B. 2. I am a Special Agent with the Federal Bureau of Investigation (FBI), and have been since 2007. From 2007 until present, I have been assigned to investigate a variety of complex cyber-intrusion investigations. As such, I am familiar with email, email service providers generally, and the use of various techniques to encrypt electronic data. Case 1:13-sw-00522-CMH Document 36-1 Filed 02/24/16 Page 3 of 12 PageID# 568 ^^>4CT£j) 3. This affidavit is intended to show merely that there is sufficient probable cause for the requested warrant and does not set forth all of ray knowledge about this matter. 4. Based on my training and experience and the facts as set forth in this affidavit, there is probable cause to believe that violations of 18 U.S.C. There is is also also probable probable cause cause to to search search for for the the have been committed by^^^m^Hjjjj There have been committed information described in Attachment A, and to seize evidence, instrumentalities, contraband or fruits of these crimes, as further described in Attachment B. JURISDICTION 5. This Court has jurisdiction to issue the requested warrant because it is "a court of competent jurisdiction" as defined by 18 U.S.C. § 2711. See IS U.S.C. §§ 2703(a), (b)Cl)(A) & (c)(1)(A). Specifically, the Court is "a district court of the United States ... that-has jurisdiction over the offense being investigated." 18 U.S.C. § 2711(3)(A)(!). PROBABLE CAUSE Case Document 36-1 Filed 02/24/16 Page 4 of 12 Page D# 569 Case Document 36-1 Filed 02/24/16 Page 5 of 12 Page D# 570 REDACTED Case Document 36-1 Filed 02/24/16 Page 6 of 12 Page D# 571 REDACTED - - - 21 22. Case Document 36-1 Filed 02/24/16 Page 7 of 12 Page D# 572 Case 1:13-sw-00522-CMH Document 36-1 Filed 02/24/16 Page 8 of 12 PageID# 573 '4cr 23. On June 28,2013, at approximately 4:00 p.m., this Court entered an Order pursuant to 18 U.S.C. § 3123 authorizing the installation and use of a pen register and the use of a trap and trace device ("pen/trap device") on all electronic communications being sent from or sent to the electronic mail account hich is an e-mail account controlled by Lavabit, LLC ("Lavabit")- 24. At approximately 4:15 p.m., two FBI Special Agents served that Order on Mr. Ladar Levison, the proprietor of Lavabit, at his home in Texas. The Special Agents identified themselves and advised Mr. Levison of this Court's order. A Special Agent advised Mr. Levison that the court order would request continual transactional records, to include connecting, sending, and receiving IP-Addresses. Mr. Levison advised that the accountwas a premium account and that in fact the user utilized the encryption. Mr. Levison staled most premium account owners don't utilize the encryption, however, this user was "pretty smart" and did utilize the encryption option. Mr. Levison stated that since the user uses encryption, Mr. Levison wouJd not be able to get the requested information. 25. The Special Agent told Mr. Levison that an FBI Computer Scientist advised that if the FBI obtained got the SSL keys &om his server, the FBI then could capture the user's connections, and password in the clear. Mr. Levison agreed that was true. Mr. Levison stated that to pull out the information he would have to log into the user's account himself and extract the requested data. Mr. Levison stated that in effect the FBI would be requesting him to "defeat his own system." Mr. Levison stated he was uncomfortable with this. Case 1:13-sw-00522-CMH Document 36-1 Filed 02/24/16 Page 9 of 12 PageID# 574 redacted 26. On JuJy i 0, 2013, the United States Attorney's Office arranged a conference call between the United States Attorney's Office, the Department of Justice, the FBI, Mr. Levison, and Mr. Levison's attorney (who has since informed the United States that she no longer represents Mr. Levison). During this conference call, the parlies discussed the implementation of the PR/TT device in light of the encryption in place on the target email account. FBI explained, and Mr. Levison appeared to ^ee, that the "facilities, information and technical assistance" needed to install the PR/Tl" consisted of (1) access to Lavabit's server to install the PR/TT device, and; (2) encryption keys. 27. On July 13, 2013, Mr. Levison sent an email to AUSA Peterson stating, in part: In light of the conference call on July 10thand after subsequently reviewing the requirements of the June 28th order I now believe it would be possibleto capture the required data ourselves and provide it to theFBL Specifically the information we'd collect is the login and subsequent logout date and lime, the IP address used to connect to the subject email account and thefollowing non-content headers (if present) from any future emails sent or received using the subject account. The headers I currently planto collect are: To, Cc, From, Date, Reply-To, Sender, Received, ReturnPath, Apparently-To and Alternate-Recipient. Note that additional header fields could be captured if provided in advance of my implementation effort. $2,000 in compensation would be required to cover the cost of the development time and equipment necessary to implement my solution. The data would then be collected manually and provided at the conclusion of the 60 day period required by the Order. I may be able to provide the collected data intermittently during the collection period but only as my schedule allows. If the FBI would like to receive the collected information more frequently I would require an additional $1,500 in compensation. The additional money would be needed to cover the costs associated with automating the log collection from different servers and uploading it to an an FBI server via "scp" on a daily basis. The money would also cover the cost of adding the process to our automated monitoring system so that I would notified automatically if any problems appeared. 28. Based on the above-cited message, it is clear that Mr. Levison is capable of providing the means for the FBI to install the PR/TT, as ordered by this Court, including encryption and SSL keys necessary for the FBI to collect the data in unencrypted form. Case 1:13-sw-00522-CMH Document 36-1 Filed 02/24/16 Page 10 of 12 PageID# 575 29. SSL stands for Secure Socket Layer, It is a protocol used in Internet communications that permits the sender and receiver of communications lo encrypt them. Like most encryption methods, SSL relies on the use of keys—essentially, very long numbers that are used in a mathematical algorithm to encrypt or decrypt data. 30. Lavabit's website, at http://lavabii.com/philosophy.html, includes the following question and answer: "Do you support encryption? // Yes, we support encryption and encourage our users to enable encryption in their e-mail client, We support P0P3 over SSL on port 995 and SMTP over SSL on port 465. We also support using the STARTTLS command. Our SSL certificate has been granted by the Comodo Group." 31. Lavabit's privacy policy, at http://lavabit.com/privacyj3oiicy.html. states: "For premium users who have elected to use our 'secure' service, incoming e-mail is stored using an asymmetric encryption process that guarantees that it can't be accessed by anyone except the holder of the account password. For these accoxmts, only the encrypted version of the message is ever saved to disk." 32. The privacy policy also states: "It is also important to know what information Lavabit does NOT store, We do not keep a record of the IP addresses used to access our services (except in the web server logs), and we do not keep a record of what information was accessed during a particular session." BACKGROUND CONCERNING E-MAIL 33. In my training and experience, I have learned that Lavabit, LLC provides a variety of on-line services, including electronic mail ("e-mail") access, to the public. Lavabit LLC allows subscribers to obtain e-mail accounts at the domain name Iavabit.com, like the e- mail account[s] listed in Attachment A. Subscribers obtain an account by registering with Case 1:13-sw-00522-CMH Document 36-1 Filed 02/24/16 Page 11 of 12 PageID# 576 ^DActej) Lavabit, LLC. During the registration process, Lavabit, LLC asks subscribers to provide basic personal information. Therefore, the computers of Lavabit, LLC are likely to contain stored electronic communications (including retrieved and unretrieved e-mail for Lavabit, LLC subscribers) and information concerning subscribers and their use of Lavabit, LLC services, such as account access information, e-mail transaction information, and account application information. In my training and experience, such information may constitute evidenceof the crimes under investigation because the information can be used to identify the account's user or users. 34. In my training and experience, e-mail providers generally ask their subscribers to provide certain personal identifying information when registering for an e-mail account. Such infonnation can include the subscriber's full name, physical address, telephone numbers and other identifiers, alternative e-mail addresses, and, for paying subscribers, means and source of payment (including any crcdit or bank account number). In my training and experience, such information may constitute evidence of the crimes under investigation because the information can be used to identify the account's user or users. 35. In my training and experience, e-mail providers typically retain certain transactional information about the creation and use of each account on their systems. This information can include the date on which the account was created, the length of service, records of log-in (i.e., session) times and durations, the types of service utilized, the status of the account (including whether the account is inactive or closed), the methods used to connect to the account (such as logging into the accoimt via the provider's website), and other log files that reflect usage of the account. In addition, e-mail providers often have records of the Internet Protocol address ("IP address") used to register the account and the IP addresses associated with particular logins Case 1:13-sw-00522-CMH Document 36-1 Filed 02/24/16 Page 12 of 12 PageID# 577 ^i>Acr£i) to the accoxmt. Because every device that connects to the Internet must use an IP address, IP address information can help to identify which computers or other devices were used to access the e-mail accoimt. 36. In my training and experience, in some cases, e-mail account users will communicate directly with an e-mail service provider about issues relating to the account, such as technical problems, billing inquiries, or complaints from other users. E-mail providers typically retain records about such communications, including records of contacts between the user and the provider's support services, as well records of any actions taken by the provider or user as a result of the communications. In my training and experience, such information may constitute evidence of the crimes under investigation because the information can be used to identify the account's user or users. CONCLUSION 37. Based on the forgoing, I request that the Court issue the proposed search warrant. Because of the urgency of this matter, there exists reasonable cause to permit the execution of the requested warrant at any time in the day or night. Respectfully submitted, Matthew Biwerman Special Agent Federal Bureau of Investigation Subscribed and sworn to before me on Honorable Claude M, Hilton UNITED STATES JUDGE Case 1:13-sw-00522-CMH Document 36-2 Filed 02/24/16 Page 1 of 5 PageID# 578 AO ®3 (Rev. 12/09) Search and Seizure Warrant United States District Court for the Eastern District of Virginia redacted In the Matter of the Search of (Briefly describe the properly lo be searched or identify the person by name and address) Case No.1:13SW522 INFORMATION ASSOCIATED WITH THAT IS STORED AT PREMISES CONTROLLED BY LAVABIT, LLC SEARCH AND SEIZURE WARRANT To: Any authorized law enforcement ofTlcer An application by a federal law enforcement officer or an attorney for the government requests the search of the following person or property located in the Northern District of Texas (identify theperson or describe the propertyto be searchedand give its location): See Attachment A The person or property to be searched, described above, is believed to conceal (identify (he person ordescribe the property lo be seized): See Attachment B 1 find that the affidavit(s), or any recorded testimony, establish probable cause to search and sei7e the person or property. YOU ARE COIMMANDED to execute this warrant on or before (nol lo exceed 14 days) O in the daytime 6:00 a.m. to 10 p.m. at any time in the day or night as 1 find reasonable causc has been established. Unless delayed notice is authorized below, you must give a copy of the warrant and a rcceipt for the property taken to the person from whom, or from whose premises, the property was taken, or leave the copy and receipt at the place where the property was taken. The officer executing this warrant, or an officer present during the execution of the warrant, must prepare an inventory as required by law and promptly return this warrant and inventory to United States Magistrate Judge The Honorable Claud© M. Hilton (name) • I find that immediate notification may have an adverse result listed in 18 U.S.C. § 2705 (except for delay of trial), and authorize the officer executing this warrant lo delay notice to the person who, or whose property, will be scorched or seized (check the appropriate box) Ofor days (noi to exceed30). •until, the facts justifying, the later specific date of Date and time i.ssued; Judge's signature City and state: Alexandria, Virginia The Honorable Claude M. Hilton, U.S. District Judge Printed name and title . Case 1:13-sw-00522-CMH Document 36-2 Filed 02/24/16 Page 2 of 5 PageID# 579 'to ATTACHMENT A Property to Be Searched This warrant applies to information associated with Ithat is stored at premises controlled by Lavabit, LLC, a company that accepts service of legal process at Case 1:13-sw-00522-CMH Document 36-2 Filed 02/24/16 Page 3 of 5 PageID# 580 ATTACHMENT B Particular Things to be Seized I. Information to be disclosed by Lavabit, LLC (the "Provider") To the extent that the information described in Attachment A is withinthe possession, custody, or control of the Provider, including any emails, records, files, logs, or information that has been deleted but is still available to the Provider, the Provider is required to disclose the following information to the government for each account or identifier listed in Attachment A: a. All information necessary to decrypt communications sent to or from the Lavabit including encryption keys and SSL keys; e-mail account b, All information necessary to decrypt data stored in or otherwise associated with the Lavabit account Case 1:13-sw-00522-CMH Document 36-2 Filed 02/24/16 Page 4 of 5 PageID# 581 ^Dacted II. InformatioD to be seized by the government Al! information described above in Section I that constitutes fruits, contraband, evidence and instrumentalities of violations of 18 U.S.C. §§l violations involving those including, for each account or identifier listed on Attachment A, information pertaining to the following matters: a. All information necessary to decrypt communications sent to or from the Lavabil including encryption keys and SSL keys; e-mail account b. All information necessary to decrypt data stored in or otherviise associated with the Lavabit account Case 1:13-sw-00522-CMH Document 36-2 Filed 02/24/16 Page 5 of 5 PageID# 582 fiED CERTIFICATE OF AUTHENTICITY OF DOMESTIC BUSINESS RECORDS PURSUANT TO FEDERAL RULE OF EVIDENCE 902(111 I, , attest, under penalties of peijury under the laws of the United States of America pursuant to 28 U.S.C. § 1746, that the information contained in this declaration is true and correct. I am employed by Lavabit, LLC, and my I am a custodian of records for Lavabil, official title is LLC. I state that each of the records attached hereto is the original record or a true duplicate of the original record in the custody of Lavabit, LLC, and that I am the custodian of the attached records consisting of. a. (pages/CDs/kilobytes). I further state that: all records attached to this certificate were made at or near the time of the occurrencc of the matter set forth, by, or from information transmitted by, a person with knowledge of those matters; b. such records were kept in the ordinary course of a regularly conductcd business activity of Lavabit, LLC; and c. such records were made by Lavabit, LLC as a regular practice. 1 further state that this certification is intended to satisfy Rule 902(11) of the Federal Rules of Evidence. Signature Case 1:13-sw-00522-CMH Document 36-3 Filed 02/24/16 Page 1 of 5 PageID# 583 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE SEARCH OF UNDER SEAL INFORMATION ASSOCIATED WITH No. I:13sw522 ^ (Local Rule 49(B)) THAT IS STORED AT PREMISES CONTROLLED BY LAVABIT, LLC GOVERNMENT'S MOTION TO SEAL SEARCH WARRANT PURSUANT TO LOCAL RULE 49fB^ Upon the return of its executed search warrant,' the United States, by and through undersigned counsel, piursuant to Local Rule 49(B) of the Local Criminal Rules for the United States District Coiirt for the Eastern District of Virginia, now asks for an Order lo Seal the application in support of a search warrant, the search warrant and the affidavit in support of the search warrant, together with this Motion to Seal and proposed Order, until the United States makes a motion to unseal the application, search warrant and affidavit. L REASONS FOR SEALING (See Local Rule 49(B)(1)) 1. At the present time, Agents v,ith the Federal Bureau of Investigation are conductingan investigation into in violation of Title 18, United States Code, Sections ' search warrant Pursuant to Local Rule 49(B), "[n]o separate motion to seal is necessary to seal a ihe lime ofissuance to the time the executed warrant is returned." (Emphasis added,) This is because, as Rule 49(B) additionally mandates, "[u]ntil an executed searchwarrant is returned, search warrants and related papers are not filed with the Clerk," Case 1:13-sw-00522-CMH Document 36-3 Filed 02/24/16 Page 2 of 5 PageID# 584 Her 2. Premature disclosure of the specific details of this ongoing investigation (as reflected in the affidavit in support of search warrant) and this warrant could jeopardize this continuing criminal investigation, including the ability of the United States to locate and arrest additional persons, and may leadto the destruction of additional evidence in other locations. Thus, a sealing order is necessary to avoid hinderingthe ongoing investigation in this matter. 3. The United States has considered alternatives less drastic than sealing, including, for example, the possibility of redactions, and has determined that none would suffice to protect this investigation. II. THE GOVERNING LAW (S^ Local Rule 49CB)(2)) 4. It is generally recognized that the public has a common law right of access, but not a First Amendment right of access, to judicial documents, including documents associated with expane proceedings such as search warrant affidavits. Media General Operations. Inc. v. Buchanan. 417 F.3d 424,429 (4'^' Cir. 2005); In re Washington Post Company v. Hushes. 923 F.2d 324, 326 (4"' Cir. 1991). "Butthe right of access is qualified, and a judicial officer may deny access to search warrant documents if scaling is 'essential to preserve higher values' and 'narrowly tailored to serve that interest,'" Media General Operations. 417 F.3d at 429 (citations omitted)^ see In re BCnight Pub. Co,. 743 F.2d 231, 235 (4*^ Cir. 1984) ("[t]he trial court has supervisory power over its own records and may, inits discretion, seal documents ifthe public's right of access is outweighed by competing interests"). Sealing search warrants and their accompanying affidavits and application is within the discretionary powers of a judicial officer where, among other things, an "'affidavit contain[s] sensitive details of an ongoing investigation' and it is 'clear and apparent from the affidavits that any disclosure of the information there would Case 1:13-sw-00522-CMH Document 36-3 Filed 02/24/16 Page 3 of 5 PageID# 585 hamper' th[c] ongoing investigation." Media General Operations 417 F.3d at 430 (citations omitted'^: see also Tn re Search Warrant for Matter of Eve Care Physicians of America. 100 F.3d 514,518(7'^Cir. 1996). 5. Before a district court generally may sealjudicial records or documents, it must (a) provide publicnotice of the request to seal and allow interested parlies a reasonable opportunity to object, (b) consider less drastic alternatives to sealing the documents, and (c) provide specific reasons and factual findings supporting its decision to seal the documents and for rejecting the alternatives. Ashcraft v. Conoco. Inc.. 218 F.3d 288, 302 (4'^ Cir. 2000). 6. However, regarding the notice requirement in the specific context of a search warrant, the Fourth Circuit has cautioned that "the opportunity lo object" cannot "arise prior to the entry of a sealing order when a search warrant has not been executed." Media General Operations. 417 F.3d at 429. "A rule to the contrary would endanger the lives of officers and agents and allow the subjects of the investigation to destroy or remove evidence before the execution of the search warrant." Id.: see also Franks v. Delaware. 438 U.S. 154,169 (1978). Accordingly, in the context of search warrants, "the notice requirement is fulfilled by docketing 'the order sealing the documents,' which gives interested parties the opportunity to object after the execution of the search warrants." Media General Operations. 417 F.3d at 430 (quoting Baltimore Sun Co. v. Goetz. 886 F.2d 60, 65 (4"^ Cir. 1989)); see also Local Rule 49(B) ("Until an executed search warrant is returned, search warrants and related papers are not filed with the Clerk")- 7. As to the requirement of a court's consideration of alternatives, the Fourth Circuit counsels that, "[i]f a judicial officer determines that full public access is not appropriate, she Case 1:13-sw-00522-CMH Document 36-3 Filed 02/24/16 Page 4 of 5 PageID# 586 'must consider alternatives to sealing the documents,' which may mclude giving the public access to some of the documents or releasing a redacted version of the documents that are the subject to thegovenunent's motion to seal." Media General Operations. 417 F.3d at 429 (quoting Goet2> 886 F.2d at 66). 8. Finally, regarding therequirement of specific findings, the Fotirth Circuit's precedents state that, "'in entering a sealing order, a 'judicial officer may explicitly adopt the facts that the government presents to justify sealing when the evidence appears creditable,'" Media General Operations. 417 F.3d at 429 fquoting Goetz. 886 F.2d at 65), so long as the ultimate "decision to seal the papers " is "made by the judicial officer," Goetz. 886 F.2d at 65. "Moreover, if appropriate, the government's submission and the [judicial] officer's reason for sealing the documents can be filed under seal." Goetz. 886 F.2d at 65; see also In re Washington Post Co.. 807 F.2d 383, 391 (4^^ Cir. 1986) ("if the court concludes thata denial of public access is warranted, the court may file its statement of the reasons for its decision under seal"). in. PERIOD OF TIME GOVERNMENT SEEKS TO HAVE MATTER REMAIN UNDER SEAL (Sec Local Rule 49(B)(3)) 9. Pursuant to Local Rule 49(B)(3), the application^ search warrant and tlie affidavit will remain sealed until the need to maintain the confidentiality of the search warrant application and the related investigation expires, after which time the United States will move to unseal the application, search warrant and affidavit. Case 1:13-sw-00522-CMH Document 36-3 Filed 02/24/16 Page 5 of 5 PageID# 587 WHEREFORE, the United States respectfully requests that the application for search warrant, the search warrant, and affidavit in support of the search warrant, together with this Motion to Seal and proposed Order be sealed until further Order by the Court, Respectfully submitted, Neil H. MacBride United States Attorney MicQ&el Ben^Ary Assistant United States Attorney Case 1:13-sw-00522-CMH Document 36-4 Filed 02/24/16 Page 1 of 1 PageID# 588 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA • 6 m? Alexandria Division IN THE MATTER OF THE SEARCH OF UNDER SEAL [___ INFORMATION ASSOCIATED WITH No. I:13sw522 (Local Rule 49(B)) THAT IS STORED AT PREMISES CONTROLLED BY LAVABIT, LLC ORDER TO SEAL The UNITED STATES, piu"suant lo Local Rule 49(B) of the Local Criminal Rules for the United States District Court for the Eastern District of Virginia, having moved to seal the application for a search warrant, the search warrant, the affidavit in support of the search warrant, the' Motion to Seal, and proposed Order in this matter; and The COURT, having considered the government's submissions, including the facts presented by the government to justify scaling; having found that revealing the material sought 10 be sealed would jeopardize an ongoing criminal investigation; having considered the available alternatives that are less drastic than sealing, and finding none would suffice lo protect the government's legitimate interest in concluding the investigation; and having found that this legitimate government interest outweighs at this time any interest in the disclosure of the material; it is hereby ORDERED, ADJUDGED, and DECREED that, the application for search warrant, the search warrant, the affidavit in support of the search warrant, Motion to Seal, and this Order be sealed until further Order by the Court. It is further ordered that law enforcement officers may serve a copy of the warrant on the occupant of the premises as required by Rule 41 of the Fed. R. of Crim. Proc. ^ The Honorable Claude M, Hilton United States District Judge Case 1:13-sw-00522-CMH Document 36-5 Filed 02/24/16 Page 1 of 2 PageID# 589 HEj) [N THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA IN RE; APPLICATION OF THE UNITED Case No. 1:13SW522 STATES OF AMERICA FOR AN ORDER PURSUANT TO 18 U.S.C. § 2705(b) Filed Under Seal APPLICATION FOR ORDER COMMANDING LAVABIT NOT TO NOTIFY ANY PERSON OF THE EXISTENCE OF SEARCH WARRANT The United States requests that the Court order Lavabit not to notify any person (including the subscribers or customers of the account(s) listed in the search warrant) of the existence of the attached search warrant until further order of the Court. Lavabit is a provider of an electronic communication service, as defmed in 18 U.S.C. § 2510(15), and/or a remote computer service, as defmed in 18 U.S.C. § 2711(2). Pursuant to 18 U.S.C. § 2703, the United States obtained the attached search warrant, which requires Lavabit to disclose certain records and information to the United States. This Court has authority under 18 U.S.C. § 2705(b) to issue "an order commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of tlie warrant, subpoena, or court order." Id In this case, such an order would be appropriate because the attached search warrant relates to an ongoing criminal investigation, and its disclosixre may alert the targets to the ongoing investigation. Accordingly, there is reason to believe that notification of the existence of the attached search warrant wiil seriously jeopardize the investigation, including by giving targets an opportunity to flee or continue flight from prosecution, destroy or tamper with evidence, change patterns of behavior, or notify confederates. See 18 U.S.C. § 2705(b)(2), (3), (5). Some of the evidence in this investigation is stored eiectronically. If alerted to the Case 1:13-sw-00522-CMH Document 36-5 Filed 02/24/16 Page 2 of 2 PageID# 590 ^^DACTED investigation, the subjects under investigation could destroy that evidence, including information saved to their personal computers. WHEREFORE, the United States respectftilly requests that the Court grant the attached Order directing Lavabit not to disclose the existence or content of the attached search warrant, except that Lavabit may disclose the attached search warrant to an attorney for Lavabit for the purpose of receiving legal advice, The United States further requests that the Court order that tiiis application and any resulting order be sealed until further order of the Court. As explained above, these documents discuss an ongoing criminal investigation that is neither public nor known lo all of the targets of the investigation. Accordingly, there is good cause to seal these documents because their premature disclosure may seriously jeopardize that investigation. Executed on July 16, 2013. Michael Berr?\jy Assistant United States Attorney Case 1:13-sw-00522-CMH Document 36-6 Filed 02/24/16 Page 1 of 1 PageID# 591 UNDEPx SEAL '4c> IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA INRE; APPLICATION OF THE UNITED CaseNo. 1:13SW522 STATES OF AMERICA FOR AN ORDER Filed Under Seal PURSUANT TO 18 U.S.C. § 2705(b) CLE9K, U.S. DfJIRICT Cf'URl ORDER ALEUNDRIA.'/lPniM,'. The United Stales has submitted an application pursuant to 18 U.S.C. § 2705(b), requesting that the Court issue an Order commanding Lavabit, an electronic communications service provider and/or a remote computing service, not to notify any person (including the subscribers or customers of the account(s) listed in the search warrant) of the existence of the attached search warrant imtil further order of the Court. The Court determines that there is reason to believe that notification of the existence of the attached warrant will seriously jeopardize the investigation, including by giving targets an opportunity to flee or continue flight from prosecution, destroy or tamper with evidence, change patterns of behavior, or notify confederates. See 18 U.S.C. § 2705(b)(2), (3). (5). IT IS THEREFORE ORDERED under 18 U.S.C. § 2705(b) that Lavabit shall not disclose the existence of the attached scarch warrant, or this Order of the Court, to the listed subscriber or to any other person, unless and until otherwise authorized to do so by the Court, except that Lavabit may disclose the attached search warrant to an attorney for Lavabit for the purpose of receiving legal advice. IT IS FURTHER ORDERED that the application and this Order are sealed until otherwise ordered by the Court. The Honorable Claude M. Hilton United States District Judge Case 1:13-sw-00522-CMH Document 36-7 Filed 02/24/16 Page 1 of 2 PageID# 592 ^Dacted IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE APPLICATION OF THE UNITED STATES AUTHORIZING THE USE FILED UNDER SBAL OF A PEN REGISTER/TRAP No. 1:13EC297 5 2013 CURK, U.S, OlSTRICt COUrF AND TRACE DEVICE ON AN Al£XftNaB)A. WSGIHIA ELECTRONIC MAIL ACCOUNT IN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION ASSOCIATED WITH llimilHIIIIIIIIIIHTHAT IS No. 1:13SW522 STORED AND CONTROLLED AT PREMISES CONTROLLED BY LAVABIT LLC In re Grand Juiy No. 13-1 REQUEST FOR WAIVER OF PERSONAL APPEARANCE Ladar Levinson requests to waive his personal appcarance for the hearing to be held in this Court on Thursday, August 1, 2013. The Government does not object to this request for waiver of personal appearance. LAVABIT LLC By Counsel Jes/^R. mnnalj, VSB# 79292 B/yiiley aBirinall, PLLC 2^387 Main Street, Suite 201 Fairfax, Virginia 22030 (703) 229-0335 Telephone (703) 537-0780- Facsimile jbinnalI@bblawonline.com Counselfor Lavahit LLC Case 1:13-sw-00522-CMH Document 36-7 Filed 02/24/16 Page 2 of 2 PageID# 593 Certificate of Service I certify that on July 25, 2013, this Request for Waiver of Personal Appearance was hand delivered to the person at the addresses listed below: James L. Trump Senior Litigation Counsel United States Attorney's Office Ea.stern District of Virginia 2100 Jamieson Avenue Alexandria, VA 22314 jim. trump@usdoj.gov Jesse R. Case 1:13-sw-00522-CMH Document 36-8 Filed 02/24/16 Page 1 of 12 PageID# 594 ^Dacted IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE FILED UNDER SEAL APPLICATION OF THE UNITED STATES AUTHORIZING THE USE OF A PEN REGISTER/TRAP No. 1:13EC297 AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT IN THE MATTER OP THE SEARCH AND SEIZURE OF INFORMATION ASSOCIATED WITH No. 1:13SW522 is sroKEMW^Wro^ULfED AT PREMISES CONTROLLED BY LAVABIT LLC In re Grand Jury No. 13-1 MOTION FOR UNSEALING OF SEALED COURT RECORDS AND REMOVAL OF NON-DISCLOSXniE ORDER AND MEMORANDUM OP LAW IN SUPPORT OF MOTION Lavabit, LLC ("Lavabit") and Mr. Ladar Levinson ("Mr. Lcvinson") (coilectivcly "Movants") move this Court to unseal the court rccords concerning the United States government's attempt to obtain certain encryption keys and lift the non-disclosure order issued to Mr. Levinson. Specifically, Movants request the unsealing of all orders and documents filed in this matter before the Court's issuance of the July 16, 2013 Sealing Order ("Sealing Order"); (2) all orders and documents filed in this matter after the issuance of the Sealing Order; (3) all grand jury subpoenas and search and seizure warrants issued before or aftet issuance of the Sealing Order; and (4) all documents filed in Case 1:13-sw-00522-CMH Document 36-8 Filed 02/24/16 Page 2 of 12 PageID# 595 ^i)'Act t:D connection with such orders or requests for such orders (collectively, the "sealed documents"). The Sealing Order is attached as Exhibit A. Movants request that all of the sealed documents be unsealed and made public as quickly as possible, with only those redactions necessary to secure information that the Court deems, after review, to be properly withheld. BACKGROUND Lavabit was formed in 2004 as a secure and encrypted email service provider. To ensure security, Lavabit employs multiple encryption schemes using complex access keys. Today, it provides email servicc to roughly 400,000 users worldwide. Lavabit's corporate philosophy is user anonymity and privacy. Lavabit employs secure socket layers ("SSL") to ensure the privacy of Lavabit's subscribers through encryption. Lavabit possesses a master encoT^on key to facilitate the private communications of its users. On July 16, 2013, this Court entered an Order pursuant to 18 U.S.C. 2705(b), directing Movants to disclose all information necessary to decrypt communications sent to or from and data stored or otherwise associated with including SSL keys (the the Lavabit e-mail account "Lavabit Order"). The Lavabit Order is attached as Exhibit B. The Lavabit Order precludes the Movants from notifying any person of the search and seizure warrant, or the Court's Order in issuance thereof, except that Lavabit was permitted to disclose the search warrant to an attorney for legal advice. ARGUMENT Case 1:13-sw-00522-CMH Document 36-8 Filed 02/24/16 Page 3 of 12 PageID# 596 Redacted In criminal trials there is a common law presumption of access to judicial records, like the sealed documents in the present ease. Despite the government's legitimate interests, it cannot nleet its burden and overcome this presumption bccause it has not explored reasonable alternatives. Furthermore, the government's notice preclusion order constitutes a content- based restriction on free speech by prohibiting public discussion of an entire topic based on its subject matter. I. THE FIRST AMENDMENT AND NON-DISCLOSURE ORDERS The Stored Communications Act ("SCA") authorizes notice preclusion to any person of a § 2705(b) order's existence, but only if the Court has reason to believe that notification will result in (1) endangering the life or physical safety of an individual; (2) flight from prosecution; (3) destruction or tampering with evidence; (4) intimidating of potential witnesses; or (5) otherwise seriously jeopardizing an investigation or unduly delaying a trial. § 2705(b)(l)-(5). Despite this statutory authority, the § 2705(b) gag order infringes upon freedom of speech under the First Amendment, and should be subjected to constitutional case law. The most searching form of review, "strict scrutiny, is implicated when there is.a content-based restriction on free speech. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 403 (1992). Such a restriction must be necessaiy to serve a compelling state interest and narrowly drawn to achieve that end. Id. The Lavabit Order's non-disclosure provision is a content-based restriction that is not narrowfy tailored to achieve a compelling state interest. Case 1:13-sw-00522-CMH Document 36-8 Filed 02/24/16 Page 4 of 12 PageID# 597 redacted a;' The Lavabit Order Regulates Mr. Levinson's Free Speech The notice preclusion order at issue here limits Mr. Levinson's speech in that he is not allowed to disclose the existence of the § 2705(b) order, or the .underlying investigation to any other person including any other Lavabit subscriber. This naked prohibition against disclosure can fairly be characterized as a regulation of pure speech. Bartnicki v. Vopper, 532 U.S. 514, 526 (2001). A regulation that limits the time, place, or manner of speech is permissible if it serves a significant governmental interest and provides ample alternative channels for communication. See Cox v. New Hampshire, 312 U.S. 569, 578 (1941) (explaining that requiring a permit for parades was aimed at policing the streets rather than restraining peaceful picketing). However, a valid time, placej and manner restriction cannot be based on the content or subjcct matter of the speech, Consol. Edison Co. of New York v. Pub. Serv. Comm.'nofNew York, 447 U.S. 530, 536 (1980). The gag order in the present case is content-based because it precludes speech on an entire topic, namely the search and seizure warrant and the underlying criminal investigation. See id. at 537 ("The First Amendment's hostility to content-based regulation extends...to prohibition of public (Uscussion of an entire topic"). While the nondisclosure provision may be viewpoint neutral on its face, it nevertheless functions as a content-based i-estriction because it closes off an "entire topic" from public discourse. It is true that the government has a compelling interest in maintaining the integrity of its criminal investigation of I. However, Mr. Case 1:13-sw-00522-CMH Document 36-8 Filed 02/24/16 Page 5 of 12 PageID# 598 ^Dacted Levinson has been unjustly restrained from contacting Lavabit subscribers who could be subjected to government surveillance if Mr. Levinson were forced to comply the Lavabit Order. Lavabit's value is embodied in its complex encryption keys, which provide its subscribers with privacy and security. Mr. , Levinson has been unwilling to turn over these valuable keys because they grant access to his entire network. In order to protect Lavabit, which caters to thousands of international clients, Mr. Levinson needs some ability to voice his concerns, gamer support for his cause, and take precautionary steps to ensure that Lavabit remains a truly secure network. b. The Lavabit Order Constitutes A Prior Restraint On Speech Besides restricting content, the § 2705(b) non-disclosure order forces a prior restraint on speech. It is well settled that an ordinance, which makes the enjoyment of Constitutional guarantees contingent upon the uncontrolled will of an official, is a prior restraint of those freedoms. Shuttlesiuorth v. Birmingham, 394 U.S. 147, 150-151 (1969); Staub v. atyo/Boxley, 355 U.S. 313, 322 (1958). By definition, a prior restraint is an immediate and irreversible sanction because it "freezes" speech. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976). In the present case, the Lavabit Order, enjoins Mr. Levinson from discussing these proceedings with any other person. The effect is an immediate freeze on speech. The Supreme Court of the United States has interpreted the First Amendment as providing greater protection from prior restraints. Alexander v. United States, 509 U.S. 544 (1993). Prior restraints carry a heavy burden for Case 1:13-sw-00522-CMH Document 36-8 Filed 02/24/16 Page 6 of 12 PageID# 599 redacted justification, with a presumption against constitutional validity. Capital Cities Media, Inc. v. Tools, 463 U;S. 1303, 1305 (1983); Carroll v. Princess Anne, 393 U.S. 175, 181 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). Here, the governmenL and the Court believe that notification of the search warrant's existence will seriously jeopardize the investigation, by giving targets an opportunity to flee or continue flight from prosecution, will destroy or tamper witli evidence, change patterns of behavior, or notify confederates. See Lavabit Order. However, the government's interest in the integrity of its investigation does not automatically supersede First Amendment rights. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 841 (1978) (holding the confidentiality of judicial review insufTicient to justify encroachment on the freedom of speech). In the present case, the government has a legitimate interest in tracking the account! However, if Lavabit were forced to surrender its master enciyption key, the government would have access not only to this account, but also eveiy Lavabit account. Without the ability to disclose government access to users' encr3T3ted data, public debate about the scope and justification for this secret investigatory tool will be stifled. Moreover, innocent Lavabit subscribers will not know that Lavabit's security devices have been compromised. Therefore the § 2705(b} non-disclosure order should be lifted to provide Mr, Levinson the ability to ensure the value and integrity of Lavabit for his other subscinbers. Case 1:13-sw-00522-CMH Document 36-8 Filed 02/24/16 Page 7 of 12 PageID# 600 redacted H. THE LAW SUPPORTS THE RIGHT OF PUBLIC ACCESS TO THE SEALED DOCUMENTS Despite any statutory authorily, the Lavabit Order and all related documents were filed under seal. The sealing of judicial records imposes a limit.on the public's right of access, which derives from two sources, the First Amendment and the common law. Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 575 {4th Cir. 2004); See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 {press and public have a First Amendment right of attend a criminal trial); Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 2 (1986) (right of access to preliminary hearing and transcript). a. The Common Law Right Of Access Attaches To The Lavabit Order For a right of access to a document to exist under either the First Amendment or the common law, the document must be a "judicial record." Baltimore Sun Co. v. Goetz, 886 F.2d 60, 63-64 (4th Cir. 1989). Although, the Fourth Circuit Court of Appeals has never formally defined "judicial record", it held that § 2703(d) orders and subsequent orders issued by the court are judicial records because they are judicially created. In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(d}, 707 F.3d 283, 290 (4th Cir. 2013) {"Twittef). The § 2705(b) order in the present case was issued pursuant to § 2703(d) and can properly be defined as a judicial record. Although the Fotirth Circuit has held there is no First Amendment right to access § 2703(d) orders, it held that the common law presumption of access attaches to such documents. Twitter, 707 F.3d at 291. Case 1:13-sw-00522-CMH Document 36-8 Filed 02/24/16 Page 8 of 12 PageID# 601 The -underlying investigation in Twitter, involved a § 2703(d) order, which directed Twitter to provide personal information, account information, records, financial data, direct messages to and from email addresses, and Internet Protocol addresses for eight of its subscribers. In re: § 2703(d) Order, 787 F. Supp. 2d 430, 435 (E.D. Va. 2011). Citing the importance of investigatorysecrecy and integrity, the court in that case denied the petitioners Motion to Unseal, finding no First Amendment or common law right to access. Id. at 443. Unlike Twitter, whose users publish comments on a public forum, subscribers use Lavabit for its encrypted features, which ensure security and privacy. In Twitter there was no threat that any user would be subject to surveillance other than the eight users of interest to the government. However, a primary concern in this case is that the Lavabit Order provides the government with access to every Lavabit account. Although the secrecy of SCA investigations is a compelling government interest, the hundreds of thousands of Lavabit subscribers that would be compromised by the Lavabit Order are not the subjects of any justified government investigation. Therefore access to these private accounts should not be treated as a simple corollary to an order requesting information on one criminal subject. The public should have access to these orders because their effect constitutes a seriously concerning expansion of grand jury subpoena power. To overcome the common law presumption of access, a court must find that there is a "significant countervailing interest" in support of sealing that Case 1:13-sw-00522-CMH Document 36-8 Filed 02/24/16 Page 9 of 12 PageID# 602 redacted outweighs the public's interest in openness. Tiuitter, 707 F.3d ai 293. Under the common law, the decision to seal or grant access to warrant papers is within the discretion of the judicial officer who issued the warrant. Media General Operations, Inc. v. Buchanan, 417 F.3d 424, 429 (4th Cir. 2005). If a judicial officer determines that full public access is not appropriate, she must consider alternatives to sealing, which may include granting some public access or releasing a redacted version of the documents. Id. In Twitter the court explained that because the magistrate judge individually considered the documents, and redacted and unsealed ccrtain documents, he satisfied the procedural requirements for sealing. Twitter, 707 F.3d at 294. However, in the present case, there is no evidence that alternatives were considered, that documents were redacted, or that any documents were unsealed. Once the presumption or access attaches, a court cannot seal documents or records indefmitely unless the government demonstrates that some significant interest heavily outweighs the public interest in openness. Wash. Post, 386 F.3d at 575. Despite the government's concerns, there arc reasonable alternatives to an absolute seal that must be explored in order to ensure the integrity of this investigation. b. There Is No Statutory Authority To Seal The § 2705(d) Documents There are no provisions in the SCA that mention the sealing of orders or other documents. In contrast, the Pen/Trap Sta.tute authorizes electronic surveillance and directs that pen/trap orders be sealed "until otherwise Case 1:13-sw-00522-CMH Document 36-8 Filed 02/24/16 Page 10 of 12 PageID# 603 ordered by the court". 18 U.S.C. §§ 3121-27. Similarly, the Wiretap Act, • another surveillance statute, expressly directs that applications and orders granted under its provisions be sealed. 18 U.S.G. § 2518(8)(b). The SCA's failiire to provide for sealing is not a congressional oversight. Rather, Congress has specifically provided for sealing provisions when it desired. Where Congress includes particular language in one section of a statute but omits it in another, it is generally assumed that Congress acts intentionally. Keene Corp. V. United States, 508 U.S. 200, 208 (1993). Therefore, there is no statutory basis for sealing an application or order under the SCA that would overcome the common law right to access. c. Privacy Concerns Demand A Common Law Public Right Of Access To The Sealed Documents The the ensuing mass surveillance scandal have sparked an intense national and international debate about government surveillance, privacy rights and other traditional freedoms. It is concerning that suppressing Mr. Levinson's speech and pushing its subpoena power to the limits, the government's actions may be viewed as accomplishing another unfounded secret infringement on personal privacy. A major concern is that this could cause people worldwide to abandon American service providers in favor of foreign businesses because the United States cannot be trusted to regard privacy.^ It is in the best interests of the Movant's and the government that the documents in this matter not be ' See Dan Roberts, NSA Snooping: Obama Under Pressure as Senator Denounces 'Act of Treason', The Guardian, June 10, 201v'5, http;//www.guard{an.co.uk/world/2013/jun /lO/obama-pressurcd-cxplain-nsu-surveillance. Case 1:13-sw-00522-CMH Document 36-8 Filed 02/24/16 Page 11 of 12 PageID# 604 REDACTED shrouded in secrccy and used to further unjustified sui"veillance activities and to suppress public debate. CONCLUSION For the foregoing reasons, Lavabit respectfully moves this Court to unseal the court records concerning the United States government's attempt to obtain certain enciyption keys and lift the non-disclosure order issued on Mr. Ivcvinson. Alternatively, Lavabit requests that all of the seeded documents be redacted to secure only the information that the Court deems, after review, to be properly withheld. LAVABIT LLC By Counsel Jcs^R. Binnlill/V^# 79292 Br^cy &Birmail/PLLC 1M7 Main Street, Suite 201 Farfax, Virginia 22030 (703) 229-0335 Telephone (703) 537-0780- Facsimile jbinnall@bblawonlinc.com Counsel for Lavabit LLC Case 1:13-sw-00522-CMH Document 36-8 Filed 02/24/16 Page 12 of 12 PageID# 605 Certificate of Service I certify that on this <:Vday of July, 2013, this Motion For Unsealing Of Sealed Court Records And Removal Of Non-Disclosure Order And Memorandum Of Law In Support was hand delivered to the person at the addresses listed below: James L. Trump Senior Litigation Counsel United States Attorney's Office Eastern District of Virginia 2100 Jamieson Avenue Alexandria, VA 22314 jim. trump@usdoj.gov esse K. Bkinall Case 1:13-sw-00522-CMH Document 36-9 Filed 02/24/16 Page 1 of 10 PageID# 606 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division FILED UNDER SEAL IN THE MATTER OF THE APPLICATION OF THE UNITED STATES AUTHORIZINCt THE USE OF A PEN REGISTER/TRAP 52013 No. 1:13EC297 AND TRACE DEVICE ON AN CIJRK. U.S DBlBiCI coi;rt ELECTRONIC MAIL ACCOUNT IN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION ASSOCIATED WITH ^••••••••rHAT No. 1:13SW522 IS STORED AND CONTROLLED AT PREMISES CONTROLLED BY LAVABIT LLC In re Grand Jury No. 13-1 MOTION TO QUASH SUBPOENA AND SEARCH WARRANT AND MEMORANDUM OF LAW IN SUPPORT OF MOTION Lavabit LLC ("Lavabit") and Mr. Ladar Levinson ("Mr, Levinson") move this Court to quash the grand jury subpoena and search and seizure warrant served on them by the Federal Bureau of Investigation and the Office of the United States Attorney (coHcctively "Government"). BACKGROUND Lavabit is an encrypted email scrvice provider. As such, Lavabit's business model focuses on providing private and secure email accounts to its customers. Lavabit uses various encryption methods, including secured socket layers ("SSL"), to protect its users' privacy. Lavabit maintains an encryption Case 1:13-sw-00522-CMH Document 36-9 Filed 02/24/16 Page 2 of 10 PageID# 607 REDACTED key, which may be used by authorized users dcciypt data and communications from its server ("Master Kej^). The Government has commanded Lavabit, by a subpoena^ and a search and seizure warrant, to produce the encryption keys and SSL keys used by lavabit.com in order to access and decrypt communications and data stored in one speciilc email address ("Lavabit Subpoena and Warrant"). ARGUMENT If the Government gains access to Lavabit's Master Key, it will have unlimited access to not only ("Email Accoimt"), but all of the communications and data stored in each of Lavabit's 400,000 email accoiints. None of these other users' email accounts are at issue in this matter. However, production of the Master Key will compromise the security of these users. While Lavabit is willing to cooperate with the Government regarding the Email Account, Lavabit has a duty to maintain the security for the rest of its customers' accounts. The Lavabit Subpoena and Warrant are not narrowly tailored to seek only data and communications relating to the Email Account in question. As a result, the Lavabit Subpoena and Warrant are unreasonable under the Fourth Amendment. a. The Lavabit Subpoena and Warrant Essentially Amounts to a General Warrant. ' The grand jury subpoena not only commanded Mr. Levlnson to appear before this Court on July 16, 2013, but also to bring Lavabit's encryption keys. Mr. Levinson's subpoena to appear before the grand jury was vrithdrawn, but the government continues to seek the encryption keys. Lavabit is only seeking to quash the Court's command that Mr. Lcvinson provide the encryption keys. Case 1:13-sw-00522-CMH Document 36-9 Filed 02/24/16 Page 3 of 10 PageID# 608 Though the Lavabit Subpoena and Warrant superficiaJly appears to be narrowly tailored, in reality, it operates as a general warrant by giving the Government access to eveiy Lavabit user's communications and data. It is not what the Lavabit Subpoena and Warrant defines as the boundaries for •the search, but the method of providing access for the search which amounts to a general warrant. It is axiomatic that the Fourth Amendment prohibits general warrants. Andresen v. Maryland, 427 U.S. 463, 480 (1976). Indeed "it is familiar history that indiscriminate searches and seizures conducted under the authorily of 'general warrants' were the immediate evils that motivated the framing and adoption of the Fourth Amendment." Payton v. New York, 445 U.S. 573, 583 (1980) (footnote omitted). To avoid general warrants, the Fourth Amendment requires that "the place to be searched" and "the persons or things to be seized" be described with particularity. United States v. Moore, 775 F. Supp. 2d 882. 898 (E.D. Va. 2011) [quoting United States v. Grubbs, 547 U.S. 90, 97 (2006)). The Fourth Amendment's particularity requirement is meant to "preventf] the seizure of one thing under a warrant describing another." Andresen, 427 U.S. at 480. This is precisely the concern with the Lavabit Subpoena and Warrant and, in this circumstance, the particularity requirement will not protect Lavabit. By turning over the Master Key, the Government will have the ability to search each and every "placc," "person [and] thing" on Lavabit's network. Case 1:13-sw-00522-CMH Document 36-9 Filed 02/24/16 Page 4 of 10 PageID# 609 The Lavabit Subpoena and Warrant allows the Govemment to do a "general, exploratory rummaging" through any Lavabit user account. See id. (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)) (describing the issue with general warrants "is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings"). Though the Lavabit • Subpoena and Warrant is facially limited to the Email Address, the Government would be able to seize communications, data and information from any account once it is given the Master Key. ' There is nothing other than the "discretion of the officer executing the warrant" to prevent an invasion of other Lavabit user's accounts and private emails. See id. at 492 (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)) (explaining that the purpose of the pai'ticularity requirement of the Fourth Amendment is to ensure, with regards to what is taken that, "nothing is left to the discretion of the officer executing the warrant.") (internal citation omitted). Lavabit has no assurance that any searches conducted utilizing the Master Key will be limited solely to the Email Account. See Groh v. Ramirez, 540 U.S. 551, 561-62 (2004) (citing Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 532 (1967)) (noting that a particular warrant is to provide individuals with assurance "of the lawful authority of the executing officer, his need to scarch, and the limits of his power to search) (emphasis added). Lavabit has a duty to its customers to protect their accounts from the possibility of unlawful intrusions by third parties, including government entities. Case 1:13-sw-00522-CMH Document 36-9 Filed 02/24/16 Page 5 of 10 PageID# 610 redacted As the Lavabit Subpoena and Warrant are currently framed they are invalid as th^ operate as a general warrant, allov/ing the Government to search individual users not subjection to this suit, without limit. b. The Lavabit Subpoena and Warrant Seeks Information that Is Not Material to the Investigation. Because of the breadth of Warrant and Subpoena, the Government will be given access to data and communications that are wholly unrelated to the suit. The Government, by commanding Lavabit'a encryption keys, is acquiring access to 400,000 user's private accounts in order to gain information about one individual. 18 U.S.C; § 2703(d) states that a court order may be issued for information "relevant and material to an ongoing criminal investigation." However, the Government will be given imlimited access, through the Master Key, to several hundred thousand user's information, all of who are not "material" to the investigation. Id. Additionally, the Government has no probable cause to gain access to the other users accounts. "The Fourth Amendment,..requires that a warrant be no broader than the probable cause on which it is based." Moore, 775 F. Supp. 2d at 897 (quoting United States v. Hurwitz, 459 F.3d 463, 473 (4th Cir. 2006)). Probable cause here is based on the activities, of the individual linked to the Email Address. Other Lavabit users would be severely impacted by the Government's access to the Master Key and have not been accused of wrongdoing or criminal activity in relation to this suit. Their privacy interests should not suffer because of the alleged misdeeds of another Lavabit user. Case 1:13-sw-00522-CMH Document 36-9 Filed 02/24/16 Page 6 of 10 PageID# 611 c. Compliance with Lavabit Subpoena and Warrant Would Cause an Undue Burden. As a non-party and unwilling participant to this suit, Lavabit has already incurred legal fees and other costs in order to comply with the Court's orders. Further compliance, by turning over the Master Key and granting the Government access to its entire network, would be unduly burdensome. See 18 U.S.C. § 2703(d) (stating that "the service provider may [move to] quash or modify [an] order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.") (emphasis added). The recent case of 7n re Application of the U.S. for an Order Pursuant to 18 U.S.C. 2703(d) {"Twittei") addresses similar issues. 830 F. Supp. 2d 114 (E.D. Va. 2011). In that ease, the Petitioners failed to allege "a personal injuiy cognizable by the Fourth Amendment." Id. at 138. However, Lavabit's circumstances are distinguishable. The Government, in pursuit of information date and communications related to the Email Address, has caused and will continue to cause injury to Lavabit. Not only has Lavabit expended a great deal of time and money in attempting to cooperate with the Government thus far, but, Lavabit will pay the ultimate price—the loss of its customers' trust and business—should the Court require that the Master Key be turned over. Lavabit's business, which is founded on the preservation of electronic privacy, could be destroyed if it is required to produce its Master Key. Case 1:13-sw-00522-CMH Document 36-9 Filed 02/24/16 Page 7 of 10 PageID# 612 Lavabit is also a fundamentally different entity than Twitter, the business at issue in Twitter. The Twitter Terms of Service specifically allowed user information to be disseminated. Id. at 139. Indeed, the very purpose of Twitter is for users to publically post their musings and beliefs on the Internet, In contrast, Lavabit is dedicated to keeping its user's information private and secure. Additionally, the order in Twitter did not seek "content information" from Twitter users, as is being sought here. Id. The Government's request for Lavabit's Master Key gives it access to data and communications from 400,000 email secure accounts, which is much more sensitive information that at issue in the Twitter. The Government is attempting, in complete disregard of the Fourth Amendment, to penetrate a system that was founded for the sole purpose of •privacy. See Katz u. United States, 389 U.S. 347, 360 (1967) (stating that "the touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy") (internal citations omitted). For Lavabit to grant the Government unlimited access to every one of its user's accounts would be to disavow its duty to its users and the principals upon which it was founded. Lavabit's service will be rendered devoid of economic value if the Government is granted access to its secure network. The Government does not have any proper basis to request that Lavabit blindly produce its Master Key and subject all of its users to invasion of privacy. •Moreover, the Master Key itself is an encryption developed and owned by Lavabit. As such it is valuable proprietary information and Lavabit has a Case 1:13-sw-00522-CMH Document 36-9 Filed 02/24/16 Page 8 of 10 PageID# 613 ^JiACTED reasonable expectation in protecting it. Because Lavabit has a reasonable expectation of privacy for its Master Key, the Lavabit Subpoena and Warrant violate the Fourth Amendment. See Twitter, 830 F. Supp. 2d at 141 (citing United States v. Calandra, 414 U.S. 338, 346 (1974)) (noting "The grand jury is...without povirer to invade a legitimate privacy interest protected by the Fourth Amendment" and that "a grand jury's subpoena. ..will be disallowed if it is far too sweeping in its terms to be...reasonable under the Fourth Amendment."). CONCLUSION For the foregoing reasons, Lavabit and Mr. Levinson respectfully move this Court to quash the search and seizure warrant and grand jury subpoena. Further, Lavabit and Mr. Levinson request that this Court direct that Lavabit does not have to produce its Master Key. Alternatively, Lavabit and Mr. Levinson request that they be given an opportunity to revoke the current encryption key and reissue a new encryption key at the Government's expense. Lastly, Lavabit and Mr. Levinson request that, if they is required to produce the Master Key, that they be reimbursed for its costs which were directly incurred in producing the Master Key, pursuant to 18 U.S.C. § 2706. LAVABIT LLC X ^ V/r C. Jes^e R. Bini^l, VSBr79292 Suite 201 By Counsel Case 1:13-sw-00522-CMH Document 36-9 Filed 02/24/16 Page 9 of 10 PageID# 614 REDACTED (703) 229-0335 Telephone (703) 537-0780- Facsimile jbinnall@bblawonline.com Counselfor Lavabit LLC Case 1:13-sw-00522-CMH Document 36-9 Filed 02/24/16 Page 10 of 10 PageID# 615 redacted Certificate of Service Icertify that on this^^^ay of July, 2013, this Motion to Quash Subpoena and Search Warrant and Memorandum of Law in Support was hand delivered to the person at the addresses listed below: James L. Trump Senior Litigation Counsel United States Attorney's Office Eastern District of Virginia 2100 Jamioson Avenue Alexandria, VA 22314 jim.ti*ump@usdoj .gov rcsre R. Binna Case 1:13-sw-00522-CMH Document 36-10 Filed 02/24/16 Page 1 of 2 PageID# 616 IN TOE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGrNIA Alexandria Divisioa IN THE MATTER OF THE UNDER SEAL APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORtZING THE USE OF A PEN REGISTER/TRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT No. 1:13EC297 Ali6 i 2013 COURT' AliWIOfiia.VlRGtWH IN THE MATTER OF THE SEARCH AND SEI2XrRE OF INFORMATION ASSOCLVTED WTTH No. 1:13SW522 •H^^B^^HP^IAT IS STORED AT PREMISES CONTROLLED BY LAVABIT LLC In re Grand Jury No. 13-1 ORDER DENYING MOTIONS This matter comes before the Court on the motions of Lavabit LLC and Ladar Lcvinson, its owner and operator, to (1) quash the grand jury subpoena and search and seizure warrant compelling Lavabit LLC to provide the governmentwith encryption keys to facilitate the installation and use ofa pen register and trap and trace device, and.(2) unseal court records and remove a non-disclosure order relating to these proceedings. For the reasons stated from the bench, and as set forth in the government's responseto the motions, it is hereby ORDERED that the motion to quash and motion to unseal are DENIED; It is further ORDERED that, by 5 p.m. CDT on August 2, 2013, Lavabit LLC and Ladar Levison shall provide the government with the encryption and any other "information. facilities, and technical assistance necessary to accomplish the installation and use of the pen/trap Case 1:13-sw-00522-CMH Document 36-10 Filed 02/24/16 Page 2 of 2 PageID# 617 redacted device" as reqxiired by the July 16,2013 seizure warrant and the June 28,2013 pen register order. It is further ORDERED that this Order shall remain under seal until further order of this Court CLAUDE M. HILTON UNITED STATES DISTRICT JUDGE Alexandria, Virginia AuRust / ,2013 Case 1:13-sw-00522-CMH Document 36-11 Filed 02/24/16 Page 1 of 1 PageID# 618 Case l:13-sw-00522-CMH'SEALED* Document 11 Filed 08/01/13 Page 1 of 1 PagelD# 93 Date: 8/1/13 Reporter: Westfall Judge: Hilton Interpreter: Language: Time: 10:00- 10:20 **UNDER SEAL HEARING** Case Numbers; l:nEC00297. 1:13SW522. GJ 13-1 Counsel for Government: Respondent: James Trump Jesse Binnall for Ladar Levison Brandon Van Orack (Levison's appearance waived) Michael Ben'Ary Josh Goldfool Ben Fltzpalrick Appearances of Counsel for (^) Government Respondent Lavabit's Motion to Quash - Denied, Mr. Levison Ordered to turn over the encryption keys. Respondent's request for 5 days to do so - Denied, Respondant given 24 hours. Lavabit's Motion to Unseal - Denied. Case 1:13-sw-00522-CMH Document 36-12 Filed 02/24/16 Page 1 of 12 PageID# 619 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRJCT OF VIRGINIA Alexandria Division IN THE MATTER OF THE APPLICATION OF THE UNITED UNDER SEAL STATES OF AMERICA FOR AN ORDER AUTHORIZING THE USE OF A PEN REGISTER/TRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT No. 1:13EC297 CLERK, U.S. DISTRICT COURT ALEXANDRIA. VIRGINIA IN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION ASSOCIATED WITH No. I:13SW522 •••^^^^^•that STORED AT PREMISES CONTROLLED BY LAVABIT LLC In re Grand Jury No. 13-1 MOTION FOR SANCTIONS The United States, through the undersigned counsel, pursuant to Title 18, United States Code, Section 401, hereby moves for the issuance of an order imposing sanctions on Lavabit LLC and Ladar Levison, its owner and operator, for Lavabit's failure to comply with this Court's order entered August I, 2013. In support of this motion, the United States represents: 1. At the hearing on August 1, 2013, this Court directed Lavabit to provide the government with the encryption keys necessary for the operation of a pen register/trap and trace order entered June 28,2013. Lavabit was ordered to provide those keys by5 p.m. on August 2. 20] 3. See Order Denying Motions entered August 2, 2013. 2. At approximately 1:30 p.m. CDT on August 2, 2013, Mr. Levison gave the FBI a printout of what he represented to be the encryption keys needed to operate the pen register. This Case 1:13-sw-00522-CMH Document 36-12 Filed 02/24/16 Page 2 of 12 PageID# 620 printout, in what appears to be 4-poinl type, consists of 11 pages of largely illegible characters. See Attachment A. (The attachment was created by scanning the document provided by Mr. Levison; the original document was described by the Dallas FBI agents as slightly clearer than the scanned copy but nevertheless illegible.) Moreover, each of the five encryption keys contains 512 individual characters - or a total of 2560 characters. To make use of these keys, the FBI would have to manually input all 2560 characters, and one incorrect keystroke in this laborious process would render the FBI collection system incapable of collecting decr>'pted data. 3. At approximately 3:30 p.m. EDT (2:30 p.m. CDT), the undersigned AUSA contacted counsel for Lavabit LLC and Mr. Levison and informed him that the hard copy format for receipt of the encryption keys was unworkable and that the goverrunent would need the keys produced in electronic format. Counsel responded by email at 6:50 p.m. EDT stating that Mr. Levison "thinks" he can have an electronic version of the keys produced by Monday. August 5, 2013. 4. On August 4, 2013, the undersigned AUSA sent an e-mail to counsel for Lavabit LLC and Mr. Levison stating that we expect to receive an electronic version of the encryption keys by 10:00 a.m. CDT on Monday, August 5,2013. The e-mail indicated that we expect the keys to be produced in PEM format, an industrystandard file formal for digitally representing SSL keys. See Attachment B. The e-mail further stated that the preferred medium for receipt of these keys would be a CD hand-delivered to the Dallas office of the FBI (with which Mr. Levison is familiar). The undersigned AUSA informed coimsel for Lavabit LLC and Mr. Levison that the government would seek an order imposing sanctions if we did not receive the encryption keys in electronic format by Monday morning. Case 1:13-sw-00522-CMH Document 36-12 Filed 02/24/16 Page 3 of 12 PageID# 621 redacted 5. The govemmeni did not receive the electronic keys as requested. The undersigned AUSA spoke with counsel for Lavabitand Mr. Levison at approximately 10:00 a.m. this morning, and he stated that Mr. Levison might be able to produce the keys in electronic format by 5 p.m. on August 5, 2013. The undersigned AUSA told counsel that was not acceptable given that it should take Mr. Levison 5 to 10 minutes to put the keys onto a CD in PEM format. The undersigned AUSA told counsel that if there was some reason why it cannot be accomplished sooner, to let him know by 11 ;00 a.m. this morning, The government has not received an answer from counsel. 6. The government therefore moves the Court to impose sanctions on Lavabit LLC and Mr. Levison in the amount of $5000 per day beginning at noon (EDT) on August 5, 2013, and continuing each day in the same amount until Lavabit LLC and Mr. Levison comply with this Court's orders. 7. As noted, Attachment A to this motion is a copy of the printout provided by Mr. Levison on August 2, 2013. Attachment B is a more detailed explanation of how these encryption keys can be given to the FBI in an electronic formal. Attachmeni C lo this motion is a proposed order. Case 1:13-sw-00522-CMH Document 36-12 Filed 02/24/16 Page 4 of 12 PageID# 622 ^DACTED 8. A copy of this motion, filed under seal, was delivered by email to counsel for Lavabit LLC on August 5,2013. Respectfully submitted, Neil H. MacBride Limted States Attorney ^ames L. Trump / / j United Slates Attomey'tPTnce Justin W. Williams U.S. Attorney's Building 2100 Jamieson Avcntie Alexandria, Virginia 22314 Phone: 703-299-3700 Case 1:13-sw-00522-CMH Document 36-12 Filed 02/24/16 Page 5 of 12 PageID# 623 CTEd Attachment A Case 1:13-sw-00522-CMH Document 36-12 Filed 02/24/16 Page 6 of 12 PageID# 624 redacted . .V-..- .-.'•.•.(I •» .-.n .• r-i; '• s VIl-tW.Y-t. W yl I 'iKI ^V.^ 1 •*; •«; • 'A'W/jiii' lixvK! *.» *'••«.' 'I . --t •' ...I,Sr. '-s •::•:/ > I'll'W! y/MW.t: v.l ; » . . • • , i . o r . v.-, • ;j. •! 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I-.Ml ,.'4: .« k,/Ml*.-/ '.fV.-riti/COiW • ••',.•'•<-•"-31 •• •..V.I V.' - : i-wN-l -r.'div.'.i •i !•. .•I'iHili V- • •• • •-!' \ .1 • 4\/rA"*'•7»f^ - •*,.* ..'T'lr'>/;-?>!.Vv.yi-i,;V.^A'-TiH Wi'ufVis"' .n^." J M V j - j ' ' A M iVrJ'tVil JO >«'/••. ,<iV.'.V l.-.- v.." ^ •> V '«r '.*.LrJrtI • "'.'.v: ••'' •'i.rii.-KJ. .:-l fC'- 'cS <,<» ^ 'i. Case 1:13-sw-00522-CMH Document 36-12 Filed 02/24/16 Page 12 of 12 PageID# 630 ^Dacted ATTACHMENT B Lavabil uses 2048-bit Secure Socket Layer (SSL) certificates purchased from GoDaddy to encrypt communication between users and its server, SSL encryption employs public-key cryptography, in which both the sender and receiver each have two mathematically linked keys: a "public" key and a "private" key. "Public" keys arc published, but "private" keys are not. In this circumstance, a Lavabit customer uses Lavabit's published public key to initiate an encrypted email session with Lavabit over the internet. Lavabit's servers then decrypt this trafTic using their private key. The only way to decrypt this traffic is through the usage of this private key. A SSL certificate is another name for a published public key. To obtain a SSL certificate from GoDaddy, a user needs to first generate a 2048-bit private key on his/her computer. Depending on the operating system and web server used, there are multiple ways to generate a private key. One of the more popular methods i.s to use a freely available command-line tool called OpenSSL. This generation also creates a certificate signing request file. The user sends this file to the SSL generation authority (e.g. GoDaddy) and GoDaddy then sends back the SSL certificate. The private key is not sent to GoDaddy and should be retained by the user. This private key is stored on the user's web server to permit decryption of internet traffic, as described above. The FBI's collection system that will be installed to implement the PR/TT also requires the private key to be stored to decrypt Lavabit email and intemet traffic. This decrypted traffic will then be filtered for the target email address specified in the PR/TT order. Depending on how exactly the private key was first generated by the user, it itself may be encrypted and protected by a password supplied by the user. This additional level of security is useful if, for example, a backup copy of the private key is stored on a CD. If that CD was lost or stolen, the private key would not be compromised because a password would be required to access it. However, the user that generated the private key would have supplied it at generation time and would thus have knowledge of it. The OpenSSL tool described above is capable of decrypting encrypted private keys and converting the keys to a non-encrypted format with a simple, well-documented command. The FBI's collection system and most web servers requires the key to be stored in a non-encryptcd format, A 2048-bil key is composed of 512 characters. The standard practice of exchanging private SSL keys between entities is to use some electronic medium (e.g., CD or secure internet exchange). SSL keys are rarely, if ever, exchanged verbally or through print medium due to their long length and possibility of human error. Mr. Levison has previously stated that Lavabit actually uses five separate public/private key pairs, one for each tj^pe of mail protocol used by Lavabil. PEM format is an industry-standard file formal for digitally representing SSL keys. PEM files can easily be created u.sing the OpenSSL tool described above. The preferred medium for receiving these keys would be on a CD. Case 1:13-sw-00522-CMH Document 36-13 Filed 02/24/16 Page 1 of 2 PageID# 631 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA r-LL-f_ Alexandria Division 5 i;jj UNDER SEAL IN THE MATTER OF THE DISffi;C7 COUftT APPLICATION OF THE UNITED No. 1:13EC297 STATES OF AMERICA FOR AN ORDER AUTHORIZING THE USE OF A PEN REGISTERATRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT IN THE MATTER OF THE SEARCH AND SEIZLIRE OF INFORMATION ASSOCIATED WITH No. 1:13SW522 mUHmHI^^HTHAT IS BY LAVABIT LLC In re Grand Jury No. 13-1 ORDER TTiis matter comes before the Court on the motion of the government for sanctions for failure to comply \vith this Court's order entered August 2, 2013. For the reasons stated in the government's motion, and pursuant to Title 18, United States Code. Section 401, it is hereby ORDERED that the motion for sanctions is granted; It is further ORDERED that, if the encryption keys necessary to implement the pen register and trap and trace device are not provided to the FBI in PEM or equivalent electronic formal by noon (CDT) on August 5, 2013, a fine of five thousand dollars ($5,000.00) shall be imposed on Lavabit LLC and Mr. Levison; It is further ORDERED that, if the encryption keys necessary to implement the pen register and trap and trace device are not provided to the FBI in PEM or equivalent electronic Case 1:13-sw-00522-CMH Document 36-13 Filed 02/24/16 Page 2 of 2 PageID# 632 redacted format by noon (CDT) each day thereafter begirming August 6, 2013, a fine of five thousand dollars (55,000.00) shall be imposed on Lavabit LLC and Mr. Levison for each day of noncompliance; and It is further ORDERED that the government's motion for sanctions and this Order shall remain under seal until further order of this Court. CLAUDE M, HILTON UNITED STATES DISTRICT JUDGE Alexandria, Virginia August S" ,2013 Case 1:13-sw-00522-CMH Document 36-14 Filed 02/24/16 Page 1 ofredacted 2 PageID# 633 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE FILED UNDER SEAL APPLICATION OF THE UNITED STATES AUTHORIZING THE USE OF A PEN REGISTER/TRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT No. 1:13SW522 IN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION ASSOCIATED WITH STORED AND CONTROLLED AT PREMISES CONTROLLED BY LAVABIT LLC NOTICE OF APPEAL Notice is hereby given that Lavabit LLC ("Lavabit") and Mr. Ladar Levison ("Mr. Levison") in the above named case, hereby appeal to the United States Court of Appeals for the Fourth Circuit from the Orders of this Court entered on August 1, 2013 and August 5, 2013. LAVABIT LLC LADAR LEVISON By Counsel J^e R. Binnalj^SB# 79292 Bronley Sc Binnall, PLLC ^387 Main Street, Suite 201 Fairfax, Virginia 22030 (703) 229-0335 - Telephone (703) 537-0780 - Facsimile jbinnall@bblav^online. com Counsel for Lavabit LLC Case 1:13-sw-00522-CMH Document 36-14 Filed 02/24/16 Page 2 of 2 PageID# 634 REDACTED Certificate of Service I ccnify that on this 16th day of August, 2013, this Notice of Appeal was emailed and mailed to the person at the addresses listed below: James L. Trump Senior Litigation Counsel United States Attorney's Office Eastern District of Virginia 2100 Jamieson Avenue Alexandria, VA 22314 jim.trump@usdoj.gov Jesse R. Binnall Case 1:13-sw-00522-CMH Document 36-15 Filed 02/24/16 Page 1 of 1 PageID# 635 redacted Case l:13-sw-00522-CMH ^SEALED* Document 15 Filed 08/16/13 Page 1 of 1 PagelD# 71 APPEAL TRANSMITTAL SHEET (non-death penalty) 1:13sw522 VAED /_ I'irsi NOA in Case 4CCA No(s). for any prior NOA: Division: _ Subsequent NOA-same party EDVA Subsequent NOA-new party Caption: Subsequent NOA-cross appeal USA Paper ROA District Case No.: District: Transmitlal to 4CCA of notice of Hiinpal filpil: 08/15/13 I'apcr Supp. V Vols: In Re: Information Associated with Oilier; Excentinnal Circumstances: 4CCA Case Manager: Ed_Snowden(glavabit.com Bail Ciinfinemcnt-Criminal (?ase: Death row-use Dl' Transmittal Recalcitrant witness In custody On bond On probation Defendant Address-Criminal Case: Inlerloculorv Uccaleitrani Witness Other Fee Status: No fee required (USA appeal) Appeal fees paid in full ^ l-'ec not paid Criminal Cases: District court granted &. did not revoke CJA status (continues on appeal) District court granted CJA & later revoked siatus (must pay lee or apply to 4CCA) District court never granted CJA status (must pay fee or apply lo 4CCA) Civil, Habeas & 2255 Cases: Court granted & did not revoke ll-T status (continues on appeal) Court granted 11-P & later revoked siatus (must pay fee or apply lo 4CCA) Court never granted 11-1' status (must pay fee or apply lo 4CCA) District Judee: Claude M. Milton PLRA Cases; Proceeded Pl.RA in district court, nu j-strikc determination (must apply lo 4CCA) Proceeded I'l.RA in dislrict court, detemiincd to be 3-striker (must apply to4CCA) Court Reporter (list all); Tracy Westfall Sealed Status (check all thai apply): Portions of record under seal l-;niirc record under seal I'artv names under seal Docket under seal Coordinator; Richard Banke Record Status for Pro Se Appeals (check any applicable): Assembled cleclronic rccortl iransniilied Record Status for Counseled Appeals (check any applicable); / Assembled electronic record available if requested Addilinnul sealed record emailed lo 4cea-ll!mg Additional sealed record available ifrequested I'apw rceord or supplement shipped to 4CCA Paper record or supplement available ifrequested No in-tourt hearings held No in-court hearings held !n-eo«rt hearings held- all transcript on file In-court hearings held - all transcript on l"ile In-eourl hearings held - all transcript not on file Other; Deputy Clerk; Kathy Roberts (11/2012 / In-courl hearings held - all transcript not on file Other; Ph„ne: 703-2992102 Dale; 08/16/13 Case 1:13-sw-00522-CMH Document 36-16 Filed 02/24/16 Page 1 of 15 PageID# 636 redacted UNITED STATES EASTERN DISTRICT DISTRICT ^ COURT OF VIRGINIA ALEXANDRIA DIVISION IN THE MATTER OF THE APPLICATION OF THE NO. 1:13 EC 297 NO. 1:13 SW NO. 13-1 UNITED STATES AUTHORIZING THE USE OF A PEN REGISTER/TRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT IN AND THE MATTER OF SEIZURE ASSOCIATED OF THE SEARCH 522 INFORMATION WITH '^hat IS STORED AND CONTROLLED AT PREMISES CONTROLLED BY LAVABIT, LLC IN RE GRAND JURY SUBPOENA Uin)ER SEAL Alexandria, Virginia August 1, 2013 10:00 a.m. TRANSCRIPT OF HEARING BEFORE THE HONORABLE CLAUDE M. HILTON UNITED STATES DISTRICT JUDGE APPEARANCES: For the United States; James Trump, Esq. Michael Ben'Ary, Esq. Josh Goldfoot, Esq. For the Respondent: Jesse R. Court Reporter: Binnall, Esq. Tracy L. Westfall, RPR, CMRS, CCR Proceedings reported by machine shorthand, transcript produced by computer-aided transcription. Tracy L. Westfall OCR-USDC/EDVA Case 1:13-sw-00522-CMH Document 36-16 Filed 02/24/16 Page 2 of 15 PageID# 637 UNDER SEAL PROCEEDINGS THE CLERK: 3 Case Nos. 1:13 EC 297, 1:13 SW 522, and Grand Jury No. 13-1. 4 5 In re: MR. TRUMP: Good morning. Jim Trump on behalf of the United States. 6 THE COURT; 7 MR. BINNALL: Good morning. Good morning. Your Honor. 8 on behalf of Lavabit and Mr. 9 THE COURT: 10 MR. BINNALL: Jesse Binnall Levison. All right. May it please the Court. We're before 11 the Court today on two separate motions, a motion to quash the 12 requirement of Lavabit to produce its encryption keys and the 13 motion to unseal and lift the nondisclosure requirements of 14 Mr. 15 Levison. Your Honor, the motion to quash in this arises because 16 the privacy of users is at — of Lavabit's users are at stake. 17 We're not simply speaking of the target of this investigation. 18 We're talking about over 400,000 individuals and entities that 19 are users of Lavabit who use this service because they believe 20 their communications are secure. 21 By handing over the keys, the encryption keys in this 22 case, they necessarily become less secure. In this case it is 23 true that the face of the warrant itself does limit the 24 documents or — and communications to be viewed and the specific 25 metadata to be viewed to the target of the case, Tracy L. Westfall OCR-USDC/EDVA Case 1:13-sw-00522-CMH Document 36-16 Filed 02/24/16 Page 3 of 15 PageID# 638 REDACTED UNDER SEAL 1 However, there is a lack of any sort of check or 2 balance in order to ensure that the — that the encrypted data 3 of other Lavabit users remain secure. The encryption in this 4 case doesn't protect only content. 5 the other — 6 It protects login data and some of the other metadata involved in this case. We believe that this is not the least restrictive means 7 in order to provide the government the data that they are 8 looking for. 9 Specifically — THE COURT: You have two different encryption codes, 10 one for the logins and the messages that are transmitted. 11 have another code that encrypts the content of the messages, 12 right? BINNALL: Your Honor, I You 13 MR. believe that that is true. 14 From my understanding of the way that this works is 15 that there is one SSL key. 16 this case, and that SSL key specifically protects the 17 communication, 18 itself from the user's actual computer to the server to make 19 sure that the user is communicating with exactly who the user 20 intends to be communicating with, the server. 21 the over — That SSL key is what is issue in the breadth of the communication And that's one of the things that SSL does. It ensures 22 that you're talking to the right person via e-mail and there's 23 not a 24 message away. 25 so-called man in the middle who's there to take that THE COURT: Does that key also contain the code of the Tracy L. Mestfall OCR-USOC/EDVA redacted Case 1:13-sw-00522-CMH Document 36-16 Filed 02/24/16 Page 4 of 15 PageID# 639 UNDER SEAL 1 message and interpret the message as well? 2 MR. BINNALL: My understanding is that it does, Your 3 Honor, but because that's not my technical expertise, I'm not 4 going to represent to the Court anything on that one way or 5 another. 6 that 7 8 9 10 But my understanding is there is one general key here i s at issue. THE COURT: Well, why would you set up such? MR. BINNALL: THE COURT: Correct. — those can be traced very easily without any look at the content of the message that's there. 12 could have set up something the same way. 14 15 MR. BINNALL: We could have, Your Honor. You-all Actually, if you're to — THE COURT: So if anybody's — you're blaming the 16 government for something that's overbroad, but i t seems to me 17 that your client is the one that set up the system that's 18 designed not to protect that information, because you know that 19 there needs to be access to calls that go back and forth to one 20 person or another. 21 you've set up a system that everybody has to — has to be 22 unencrypted, 23 be a very persuasive argument. 24 MR. BINNALL: 25 a telephone, you've got telephone numbers and -- 11 13 I mean, And to say you can't do that just because if there's such a word, that doesn't seem to me to I understand the Court's point, and this is the way that I understand why it's done that way. Tracy L. Westfall OCR-USDC/EDVA Case 1:13-sw-00522-CMH Document 36-16 Filed 02/24/16 Page 5 of 15 PageID# 640 REDACTED UHDER SEAL 1 There's different security aspects involved for people 2 who want to protect their privacy, and there certainly is the 3 actual content of the message themselves. 4 I would concede is the highest security interest. 5 That's certainly what But there's also the security interest to make sure 6 that they're communicating with who you want to be communicating 7 with. 8 that is, at the end of the day, one of the things that secures 9 the content of the message. 10 That is equally of a concern for privacy issues because In t h i s case i t i s true that most Internet service 11 providers do log, 12 that the government wants in this case without that necessarily 13 being encrypted, 14 it's going from, the time it's being sent, the IP address from 15 which it is being sent. 16 is what they call it, a lot of the metadata things such as who something is going to, who Lavabit code is not something that you buy off the 17 shelf. 18 order to secure privacy to the largest extent possible and to be 19 the most secure way possible for multiple people to communicate, 20 and so i t has chosen specifically not to log that information. 21 It is code that was custom made. I t was custom made in Now, that is actually information that ray client has 22 offered to start logging with the particular user in this case. 23 It is, however, something that is quite burdensome on him. 24 is something that would be custom code that would take between 25 20 to 4 0 hours for him to be able to produce- It We believe that Tracy L. Westfall OCR-USDC/EDVA Case 1:13-sw-00522-CMH Document 36-16 Filed 02/24/16 Page 6 of 15 PageID# 641 UNDER SEAL 1 is a better alternative than turning over the encryption key 2 which can be used to get the data for all Lavabit users. 3 I hope that addresses the Court's concern kind of with 4 regard to the metadata and why it is not more — why Lavabit 5 hasn't created an encryption system that may honestly be more 6 within the mainstream, but this is a provider that specifically 7 was started in order to have to protect privacy interests more 8 than the average Internet service provider. 9 THE COURT: I can understand why the system was set up, 10 but I think the government is — government's clearly entitled 11 to the information that they're seeking, 12 you-all have set up a system that makes that difficult, that 13 doesn't in any way lessen the government's right to receive that 14 information just as they would from any telephone company or any 15 other e-mail source that could provide it easily. 16 i t ' s — in other words, the difficulty or the ease in obtaining 17 the information doesn't have anything to do with whether or not 18 the government's lawfully entitled to the information. 19 20 MR. BINNALL: It is — and just because and we don't disagree that the government is entitled to the information. 21 THE COURT: Whether We actually — Well, how are we going to get it? 22 going to have to deny your motion to quash. 23 overbroad. 24 bit of information, 25 to. I'm It's just not The government's asking for a very narrow, specific and i t ' s information that they're entitled Tracy L. Westfall OCR-USDC/EDVA Case 1:13-sw-00522-CMH Document 36-16 Filed 02/24/16 Page 7 of 15 PageID# 642 UNDER SEAI. 1 Now, 2 MR. BINNALL: redacted how are we going to work out that they get it? Your Honor, what I would still say is the 3 best method for them to get it is, 4 way for there to be some sort of accountability other than just 5 relying on the government to say we're not going to go outside 6 the scope of the warrant. 7 first of all, there be some This is nothing that is, of course, personal against 8 the government and the, you know, very professional law 9 enforcement officers involved in this case. .0 the way the Constitution is set up, .1 ensure that there's .2 accountability. .3 THE COURT: .4 MR. .5 THE COURT: .6 MR. But quite simply, it's set up in a way to some sort of checks and balances and What checks and balances need to be set up? BINNALL: Well ~ Suggest something to me. BINNALL: I think t h a t the least r e s t r i c t i v e means .7 possible here is that the government essentially pay the .8 reasonable expenses, meaning in this case my client's extensive .9 labor costs to be capped at a reasonable amount. JO THE COURT: Has the government ever done that in one of these pen register cases? 12 MR. BINNALL: 13 THE COURT: 14 MR. BINNALL: 15 these than I Not that I've found. I don't think so. Your Honor. I've never known of one. And Your Honor's certainly seen more of have. Tracy L. Westfall OCR-USDC/EDVA Case 1:13-sw-00522-CMH Document 36-16 Filed 02/24/16 Page 8 of 15 PageID# 643 redacted UNDER SEAL THE COURT: So would i t be reasonable to s t a r t now with your client? MR. BINNALL: an unusual case. I think everyone would agree that this is And that this case, privacy of 400,000-plus other users, in order to protect the some sort of relatively small manner in which to create a log system for this one user to give the government the metadata that they're looking for is the least restrictive mean here, and we can do that in a way that doesn't compromise the security keys. This is actually a way that my client — THE COURT: You want to do i t in a way that the government has to trust you — MR. BINNALL: THE COURT: MR. BINNALL: THE COURT: Yes, Your Honor. — to come up with the right data. That's correct, Your Honor. And you won't trust the government. So why would the government trust you? MR. BINNALL: Your Honor, because that's what the basis of Fourth Amendment law says is more acceptable, is that the government is the entity that you really need the checks and balances on. Now, my — THE COURT: that. I don't know that the Fourth Amendment says This is a criminal investigation. MR. BINNALL: That is absolutely correct. Tracy L. Westfall OCR-USDC/EDVA Case 1:13-sw-00522-CMH Document 36-16 Filed 02/24/16 Page 9 of 15 PageID# 644 REDACTED UNDER SEAL 1 THE COURT: A criminal investigation, and I don't know 2 that the Fourth Amendment says that the person being 3 investigated here is entitled to more leeway and more rights 4 than the government is. 5 6 MR. BINNALL: there. I, There certainly is a balance of power of course, am not here to represent the interest of 7 8 I don't know. I'm here specifically looking over my client who has sensitive data — 9 THE COURT: I understand. I'm trying to think of 10 working out something. I'm not sure you're suggesting anything 11 to me other than either you do it and the government has to 12 trust you to give them whatever you want to give them or you 13 have to trust the government that they're not going to go into 14 your other files. 15 Is there some other route? 16 MR. BINNALL: I would suggest that the government — 17 I'm sorry — 18 can — 19 to come up with this coding system that gives the government all 20 of the metadata that we can give them through this logging 21 procedure that we can install in the code, and then using that 22 as a least restrictive means to see if that can get the 23 government the information that they're looking for on the 24 specific account. 25 that the Court can craft an order to say that we that we should work THE COURT: in concert with each other in order How long does i t take to install that? Tcacy L. Wescfall OCR-USDC/EDVA Case 1:13-sw-00522-CMH Document 36-16 Filed 02/24/16 Page 10 of 15 PageID# 645 redacted U11DER SEAL 1 MR. BINNALL: I mean, 20, 40 hours. So I would suggest 2 that would probably be a week to a week and a half. Your Honor, 3 although I would be willing to talk to my client to see if we 4 can get that expedited. 5 THE COURT: 6 MR. 7 THE COURT: 8 To install i t ? BINNALL: Well, to write the code. You don't have a code right at the moment. You would have to write something? 9 MR. BINNALL: That's correct. And the portion of the 10 government's brief that talks about the money that he was 11 looking for is that reasonable expense for him basically to do 12 nothing for that period of time but write code to install in 13 order to take the data 14 the government will see the logged metadata involved. 15 THE COURT: and put it in a way that from All right. I think I understand your 16 position. 17 unseal. 18 criminal investigation, and any motion to unseal will be denied. 19 I don't think you need to argue this motion to This is a grand jury matter and part of an ongoing MR. BINNALL: If I could have the Court's attention 20 just on one issue of the nondisclosure provision of this. 21 understand the Court's position on this, but there is other 22 privileged communications if the Court would be so generous as 23 to allow me very briefly to address that issue? 24 There's other First Amendment 25 considerations at And I issue with not necessarily just the sealing of this, but what Tracy L. Westfall OCR-OSDC/EDVA Case 1:13-sw-00522-CMH Document 36-16 Filed 02/24/16 Page 11 of 15 PageID# 646 UNDER SEAL 1 redacted Mr. Levison can disclose and to whom he may disclose it. 2 The First Amendment, of course, doesn't just cover 3 speech and assembly, but the right to petition for a redress of 4 grievances. 5 a statute that is very much in the public eye and involving 6 issues that are currently pending before Congress. 7 8 We're talking about a statute here, and, honestly, I think the way that the order currently is written, besides being — 9 THE COURT: 10 You're talking about the sealing order? MR. BINNALL: I'm talking about the sealing order and 11 the order that prohibits Mr. Levison from disclosing any 12 information. 13 Now, we don't want to disclose — we have no intention 14 of disclosing the target, but we would like to be able to, for 15 instance, talk to members of the legislature and their staffs 16 about rewriting this in a way that's — 17 THE COURT: No. This is an ongoing criminal 18 investigation, and there's no leeway to disclose any information 19 about 20 21 it. MR. BINNALL: And so at that point it will remain with only Mr. Levison and his lawyers, and we'll keep it at that. 22 THE COURT: 23 Is there some way we can work this out or something 24 25 Let me hear from Mr. Trump. that I can do with an order that will help this or what? MR. TRUMP: I don't believe so. Your Honor, Tracy L. Wostfell because OCR-USDC/EDVA Case 1:13-sw-00522-CMH Document 36-16 Filed 02/24/16 Page 12 of 15 PageID# 647 UNDER SEAL redacted 1 you've already articulated the reason why is that anything done 2 by Mr. Levison in terms of writing code or whatever, we have to 3 trust Mr. Levison that we have gotten the information that we 4 were entitled to get since June 28th. 5 opportunity to propose solutions to come up with ways to address 6 his concerns and he simply hasn't. 1 He's had every We can assure the Court that the way that this would 8 operate, while the metadata stream would be captured by a 9 device, the device does not download, no one 10 looks at it. 11 filter, we get what we're required to get under the order. 12 It filters everything, does not store, and at the back end of the So there's no agents looking through the 4 00,000 other 13 bits of information, 14 no one stores it, no one has access to it. 15 look at and all we're going to keep is what is called for under 16 the pen register order, and that's all we're asking this Court 17 to do. THE COURT: customers, All right. whatever. Well, No one looks at that, All we're going to I think that's 19 reasonable. 20 than this motion to quash and unseal which I've ruled on? 21 22 23 24 25 So what is this before me for this morning other MR. TRUMP: The only thing is to order the production of the encryption keys, which just — THE COURT: Hasn't that already been done? There's a subpoena for that. MR. TRUMP: There's a search warrant for it, the motion Tracy L. Westfall OCR-DSDC/EDVA Case 1:13-sw-00522-CMH Document 36-16 Filed 02/24/16 Page 13 of 15 PageID# 648 UNDER SEAL 1 5 redacted to quash. THE COURT: Search warrant. MR. Excuse me? TRUMP: THE COURT: I said subpoena, but I meant search MR. TRUMP; We issued both, warrant. Your Honor, but Your Honor 7 authorized the seizure of that information. 8 the Court to enforce that by directing Mr. Levison to turn over 9 the encryption keys. 10 And we would ask If counsel represents that that will occur, we can not 11 waste any more of the Court's time. 12 Mr. Levison will not turn over the encryption keys, then we have 13 to discuss what remedial action this Court can take to require lA compliance with that order. 15 16 THE COURT: those — Well, If he represents that I will order the production of of those keys. Is that simply Mr. Levison or is that the corporation 18 as well? 19 MR. TRUMP: That's one and the same. 20 Just so the record is clear. Your Honor. We understand from 21 Mr. Levison that the encryption keys were purchased 22 commercially. 23 Mr. Levison. 24 installed. They're not somehow custom crafted by He buys them from a vendor and then they're THE COURT: Well, I will order that. If you will Tracy L. Westfall OCR-USDC/EDVA Case 1:13-sw-00522-CMH Document 36-16 Filed 02/24/16 Page 14 of 15 PageID# 649 UNDER SEAL 1 present an order to me, I'll enter it later on. 2 MR. TRUMP: Thank you. 3 MR. 4 As far as time frame goes, my client did ask me if the BINNALL: Thank you. Your Honor. 5 Court did order this if the Court could give him approximately 6 five days in order to actually physically get the encryption 7 keys here. 8 time frame to get the encryption keys here and in the 9 government's hands. 10 that And so it will be — or just some sort of reasonable He did ask me to ask exactly the manner those are to be turned over. 11 MR. TRUMP: Your Honor, we understand that this can be 12 done almost instantaneously, as soon as Mr. Levison makes 13 contact with an agent in Dallas, and we would ask that he be 14 given 24 hours or less to comply. 15 month. THE COURT: Yeah, This has been going on for a I don't think 24 — 17 reasonable. 18 I would think something like this, 19 amass or get together. 20 So I 21 MR. 22 THE COURT: All right. 23 MR. We will. 24 THE COURT: 25 24 hours would be Doesn't have to do i t in the next few minutes, but it's not anything he has to It's just a matter of sending something. think 24 hours would be reasonable. BINNALL: TRUMP: Yes. Thank you. Your Honor. And you'll present me an order? Your Honor. All right. Thank you. Thank you-all, and we'll adjourn until — or stand in recess till 3 o'clock. Tracy L. Westfall Well, OCR-USDC/EDVA Case 1:13-sw-00522-CMH Document 36-16 Filed 02/24/16 Page 15 of 15 PageID# 650 redacted UNDER SEAL 1 recess t i l l 9 o'clock tomorrow morning. [Proceedings concluded at 10:25 a.m.) CERTIFICATION I certify, this 19th day of August 2013, that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter to the best of my ability. Tracy Westfali; RPR, S, CCR Tracy L. Westfall OCR-USDC/EDVA Filed:Document 08/29/2013 1 of02/24/16 2 Appeal: 13-4625 Doc: 1 Case 1:13-sw-00522-CMH 36-17Pg:Filed Page 1 of 2 PageID# 651 FILED: August 29,2013 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4625 {l:13-sw-00522-CMH-l) In re: UNDER SEAL UNITED STATES OF AMERICA Plaintiff - Appellee UNDER SEAL Party-in-Interest - Appellant This case has been opened on appeal. Originating Court United States District Court for the Eastern District of Virginia at Alexandria Originating Case Number l:13-sw-00522-CMH-l Date notice of appeal filed in originating court: 08/16/2013 Appellant (s) Under Seal Appellate Case Number 13-4625 Appeal: 13-4625 Doc: 1 Filed;Document 08/29/2013 2 ot 02/24/16 2 Case 1:13-sw-00522-CMH 36-17Pg;Filed Page 2 of 2 PageID# 652 Case Manager RJ Warren 804-916-2702 redacted Appeal: 13-4625 Doc: 2 Filed: 08/29/2013 1 ot02/24/16 2 Case 1:13-sw-00522-CMH Document 36-18 Pg: Filed Page 1 of 2 PageID# 653 FILED: August 29, 2013 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4625 (L) (l:13-sw-00522-CMH-l) (l:13-dm-00022-CMH-l) In re: UNDER SEAL UNITED STATES OF AMERICA Plaintiff - Appellee UNDER SEAL Party-in-Interest - Appellant No. 13-4626 (l:13-dm-00022-CMH-l) (l:13-sw-00522-CMH-l) In re: GRAND JURY PROCEEDINGS UNITED STATES OF AMERICA Plaintiff - Appellee Filed;Document 08/29/2013 2 ot02/24/16 2 Appeal; 13-4625 Doc: 2 Case 1:13-sw-00522-CMH 36-18 Pg; Filed Page 2 of 2 PageID# 654 ^DActed UNDER SEAL Party-in-lnterest - Appellant ORDER The court consolidates Case No. 13-4625 and Case No. 13-4626. Entry of appearance forms and disclosure statements filed by counsel and parties to the lead case are deemed filed in the secondary case. For the Court—By Direction /s/ Patricia S. Connor. Clerk Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 1 of 17 PageID# 655 i it IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION IN THE MATTER OF THE APPLICATION OF THE UNITED E SEP 2 0 2013 CURX. U.S. DISTRICT COURT ALEXANDRIA, VfRCfflM NO. 1:13 EC 297 STATES AUTHORIZING THE USE OF A PEN REGISTER/TRAP AND TRACE REDACTED DEVICE ON AN ELECTRONIC MAIL ACCOUNT IN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION NO. 1:13 SW 522 ASSOCIATED WITH HAT IS STORED AND CONTROLLED AT PREMISES CONTROLLED BY LAVABIT LLC IN RE GRAND JURY SUBPOENA NO. 13-1 EX PARTE AND UNDER SEAL MOTION OF THE UNITED STATES TO UNSEAL CERTAIN DOCUMENTS RELATED TO LITIGATION WITH LAVABIT, LLC, AND SEALED STATEMENT OF REASONS THAT OTHER INFORMATION SHOULD REMAIN UNDER SEAL The United States, by and through its undersigned attorneys, hereby requests that the Court partially unseal certain pleadings and orders that were filed in the above-captioned matters. The government originally requested the Court seal these documents because their public release would damage an ongoing criminal investigation. Since that time, Lavabit, LLC, and its proprietor, Ladar Levison, shut down its e-mail service. In addition, Mr. Levison made numerous public statements that his decision to shut down was in response to government attempts to obtain data related to a user or users ofhis service (a statement which, as discussed further below, Lavabit had previously represented it was prohibited from making due to the Court's sealing orders). The shutdown, and the attendant publicity generated by Mr. Levison Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 2 of 17 PageID# 656 REDACTED and his counsel's numerous media appearances, ended the government's ability to obtain evidence from any e-mail account hosted by Lavabit, LLC and alerted the target of the government's ongoing investigative actions. Thus, asubstantial amount ofthe damage the government cited in its earlier sealing requests has been done. As such, the government hereby requests the Court partially unseal certain pleadings, as explained in more detail below. BACKGROUND The United States is conducting acriminal investigation of for violations of numerous criminal statutes. On ^ , acriminal complaint was filing charging HH with violations of 18 U.S.C. J—11 {remains a fugitive. As part ofthe investigation, the United States discovered anumber ofe-mail accounts believed to be used by hat were hosted at the domain lavabit.com. That domain belongs to Lavabit, LLC, which, prior to August 8,2013, offered e-mail services to the general public. As part of the investigation int heUnited States beean t0 investi8ate the e" mail accounts believed to belong to him that were provided by Lavabit. On June 8,2013, a grand jury subpoena was issued to Lavabit requesting billing and subscriber information for one Lavabit e-mail account •••••••••< Lavabit provided the information requested in the subpoena, via e-mail, on June 8. On June 10,2013, the United States obtained an order pursuant to 18 U.S.C. §2703(d) directing Lavabit to provide, within ten days, additional records and information about the same Lavabit e-mail account. The Application and Order were sealed, and Mr. Levison was directed not to disclose the Order to any other person other than his attorney. Mr. Levison received the Order on June 11, 2013. He responded, by mail, on June 27, Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 3 of 17 PageID# 657 REDACTED 2013. Mr. Levison provided very little ofthe information sought by the June 10,2013 Order. For example, Mr. Levison provided no transactional records for the account. On June 28,2013, the United States obtained apen register/trap and trace order for this Lavabit e-mail account (Dkt. No. 1:13 EC 297). The pen register application and Order were sealed. That same day, agents ofthe Federal Bureau of Investigation met with Mr. Levison to discuss the grand jury subpoena, the June 27,2013 §2703(d) Order, and pen register Order. Mr. Levison told the agents he would not comply with the pen register order and that he wanted to speak with an attorney. Later that same day, the United States obtained an Order from Magistrate Judge Theresa C. Buchanan directing Lavabit to comply with the pen register Order forthwith. Lavabit still did not comply with the pen register order. On July 9,2013, the United States requested that this Court enter an Order to Show Cause why Lavabit and Mr. Levison should not be held in contempt for failing to comply with the pen register order. Ahearing on the United States motion was held on July 16,2013. On July 11,2013, the United States issued agrand jury subpoena requiring Mr. Levison to appear before the grand jury on July 16, 2013. Mr. Levison was directed to bring copies of Lavabit's encryption keys, and any other information necessary to accomplish the installation and use of apen register/trap and trace device pursuant to the June 28,2013 pen register Order. On July 16, 2013, prior to the hearing on the United States' request for an Order to Show Cause, this Court authorized asearch warrant, issued pursuant to 18 U.S.C. §2703, commanding Lavabit to produce any information necessary to decrypt communications sent to and from the Lavabit e-mail account listed in the pen register Order (Dkt. No. 1:13 SW 522). The search warrant, application, and affidavit in support were sealed, and Lavabit was ordered not to disclose the search warrant. Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 4 of 17 PageID# 658 REDACTED At the July 16,2013, hearing, Mr. Levison appeared pro se. Mr. Levison agreed to allow the United States to install apen register/trap and trace device on his system. He did not provide any decryption assistance, nor did he provide copies ofLavabit's encryption keys. The United States withdrew the grand jury subpoena and Mr. Levison did not appear before the grand jury. After the hearing, this Court placed the grand jury subpoena that Mr. Levison had received under seal. On July 25, 2013, Lavabit and Mr. Levison, through counsel, moved to quash the withdrawn subpoena and search warrant 1:13 SW 522. He also moved to unseal four categories ofdocuments, which Mr. Levison described as "records concerning the United States government's attempt to obtain certain encryption keys": (1) all orders and documents filed in this matter1 before the Court's issuance ofthe July 16,2013 Sealing Order; (2) all orders and documents filed in this matter after the issuance ofthe July 16,2013 Sealing Order; (3) all grand jury subpoenas and search and seizure warrants issued before or after issuance ofthe Sealing Order; and (4) all documents filed in connection with such orders or requests for such orders. As abasis for unsealing, Mr. Levison argued that the sealing order "unjustly restrained [him] from contacting Lavabit subscribers who could be subjected to government surveillance...." Mot. for Unsealing of Sealed Court Records and Removal ofNon-Disclosure Order and Mem. of Law in Supp. ofMot. 1-2, 5("Lavabit Mot. to Unseal"). On August 1,2013, this Court held ahearing on Lavabit's motions. The motions were denied by written Order. The Court also ordered Mr. Levison and Lavabit to provide Lavabit's 1Mr Levison's pleading did not define the "matter" at issue. However, the document was filed with acaption that included docket numbers 1:13 EC 297, 1:13 SW522, and Grand Jury No. 131. 4 Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 5 of 17 PageID# 659 REDACTED encryption keys and any other information necessary to accomplish the use of the pen register/trap and trace device to the government no later than 5p.m. on August 2,2013. Mr. Levison did not provide the keys in ausable format by the Court's deadline. On August 5,2013, the United States moved for sanctions against Mr. Levison and Lavabit. That same day, the Court ordered that ifLavabit and Mr. Levison did not comply with the Court's directive by noon on August 5, 2013, the Court would impose afine of $5,000 each day until Lavabit complied. On August 7, Mr. Levison provided ausable version of Lavabit's encryption keys to the United States. On August 8, 2013, Mr. Levison ceased operating Lavabit, LLC. He posted a message to the website "lavabit.com" which stated, in part: "I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years ofhard work by shutting down Lavabit. After significant soul searching, Ihave decided to suspend operations." Mr. Levison's statement on the website concluded with a request for donations. Mr. Levison's decision to shut down Lavabit drew significant media attention, and Mr. Levison and his attorney subsequently gave numerous media interviews relating to his decision. A list of some of those interviews is attached to this pleading as Exhibit 24. Within a day of Mr. Levison's public announcement, The Guardian published a statement, purported to be from auding Lavabit's decision. 2Mr. Levison had provided an illegible, printed version of the encryption keys, which was useless. Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 6 of 17 PageID# 660 REDACTED On August 15, 2013, Lavabit filed two notices of appeal. Both notices of appeal indicated that Lavabit and Mr. Levison would appeal the Court's August 1and August 5Orders. One notice of appeal was captioned with docket numbers 1:13 EC 297 and 1:13 SW 522. The other notice of appeal was captioned with Grand Jury No. 13-1. The Fourth Circuit has consolidated the appeals. At present, the United States seeks to partially unseal the following documents: Document Case Number 18U;S.C.!§:2703(d);Ofder 1:13 EC 254 Pen Reaister Order 1:13 EC297 Motion for Entry ofanOrder to 1:13 EG 297 Exhibit No. Compel Order Compelling Compliance 1:13 EC 297 Forthwith Motion of^the-United States/for ,: 1:13 EC 297 ah Order to Show Cause • :" -:"" '- v-.''"-- Order to Show Cause L13EC297 Summons 1:13 EC 297 Grand Jury Subpoena dated July 13-1: 13GJ2527; 13-2451 11,2013 Search Warrant 1:13 SW 522 Order to Seal 1:13 SW 522 18 U.S:C.12705(b) Order 1:13 SW 522 $m$ USA Supplement to Motion for 1.13 EC 297 12 Order to Show Cause Hearing Transcript 13 Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 7 of 17 PageID# 661 REDACTED Order Denying Motion to Unseal 1:13 EC 297 SearcfcWattianS^ Memorandum"ofLay/m,Supportr ' ofMotion • "^">"\;,'.. :'^'^r^£f '^rW?^$$'" " * Motion for Unsealing of Sealed 14 .; . - ,' <^>^/^"' • . .," ":',",• "'r^-V^ ftV-.J^I *[••"•': 1:13 EC 297; 1:13 SW 522; No. 13-1 16 Court Records and Removal of Non-Disclosure Order and Memorandum of Law in Support ofMotion :Respb^e^e«^ ^ppo's^tipn^Sa^^ „:' Ij>: :/-'-'{^'v"F^:%^^^^Jf'-S' to QuashSubpoena pd-Mption ; -• ". • ForUnsealing ofSealed Court \ > • • I :^'V ;,; _ . :^ 18 Hearing Transcript 4sa*B?3^ Motion for Sanctions 1:13 EC 297; 1:13 SW 522; No. 13-1 20 1:13 EC 297; 1:13 SW 522; No. 13-1 22 ^QrrJerpnp^^ Notices of Appeal Notice ofAppeal (A^n6^^3ir;^13;S^'522:-;. "^ ^ '^7'.^ ^K^f'f ^^^ Redacted versions of each document are attached to this pleading as exhibits 1-23. ARGUMENT Lavabit no longer provides e-mail services to the target of the government's investigation. Moreover, Lavabit has notified the target ofthe government's investigation regarding the government's interest in the target's Lavabit accounts. Lavabit's failure to provide e-mail service means that the target's Lavabit e-mail accounts are no longer viable sources of information orevidence in the government's investigation. Lavabit's notification ofthe user 7 Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 8 of 17 PageID# 662 REDACTED means that the damage from user notification, such as the destruction ofelectronic evidence by the target, has likely already occurred. Thus, some of the reasons for sealing certain sealed pleadings no longer apply. The United States therefore requests that certain documents be partially unsealed. However, the criminal investigation into§ Hjggg (remains ongoing, and Lavabit's violations ofthe sealing order have not entirely eliminated the reasons for sealing documents that are at issue in this matter. The justifications for sealing outlined in the government's original motion still apply to certain categories ofinformation, and such information should remain sealed. The United States hereby reasserts (and incorporates by reference) those justifications as to the following categories of information: 1^Investigative Facts. Including Applications for Legal Process and Affidavits in Support of Those Applications. The above-captioned matters, which relate to apen register, search warrant, and grand jury subpoena, include pleadings outlining the government's ongoing criminal investigation into hough the target ofthe investigation has been charged with certain offenses, the government's investigation into his criminal conduct is ongoing. The government continues to investigate the scope of [unlawful activity, as well as whether he conspired with others. As such, the documents in this category, which contain recitations ofthe basis for obtaining the orders sought and their relevance to the investigation, contain "sensitive nonpublic facts," the disclosure of which could damage the ongoing investigation.' This is sufficient justification for sealing. See In re Application ofthe United States ofAmericafor an Order Pursuant to J8 U.S.C. Section 2703(d), 707 F.3d 283, 293-94 (4th Cir. 2013); see also ACLUv. Holder, 673 F.3d 245,253 (4th 8 Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 9 of 17 PageID# 663 REDACTED Cir. 2011) (noting government has compelling interest in protecting the integrity ofongoing investigations). The United States has also redacted the specific accounts targeted by the government. Though these accounts, due to Mr. Levison's actions, are no longer operational, knowledge of the specific accounts known to the government could alert the target as to what information the government has, or does not have, about his activities. This could allow him to alter or destroy electronic evidence stored in other places. Such action would damage the investigation and thus this information should remain sealed. See In re Application, 707 F.3d at 293-94. 2) The Identities ofLaw Enforcement Personnel Involved in the Ongoing Investigation. The United States has redacted the identities ofcourt and law enforcement personnel. Law enforcement personnel are redacted because, in other investigations iv:'dua,s who did not suPPort the mvestisation attemPted t0 harass individuals working on the case by publishing their home addresseXwork telephone numbers, and work e-mail addresses, and encouraged others to directly contact them. Some individuals also researched court personnel and placed personal information about such personnel on the internet. As such, this information has been redacted to minimize disruption to the investigation and to the operation ofthe courts. This is avalid justification for sealing. See, e.g., United States v. Ramey, 791 F.2d 317,318-20 (4th Cir. 1986) (noting that acase may be sealed for legitimate prosecutorial needs and that protection of witness identities is avalid justification for sealing an indictment). 3) Information Required to be Sealed by Law. Some information contained in the records should be sealed by operation oflaw. For instance, some ofthe facts contained in various applications is derived from the returns of grand jury subpoenas, which should be sealed Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 10 of 17 PageID# 664 REDACTED pursuant to Federal Rule ofCriminal Procedure 6(e). Other documents contain the address of Mr. Levison's personal residence, which is where his business is headquartered. This is personal information which must be redacted pursuant to the E-Government Act of2002. See E.D. Va. Local R. 49. One document specifically bears mention in this category: the grand jury subpoena issued to Mr. Levison. This subpoena was issued to Mr. Levison but later withdrawn after the government obtained asearch warrant for the same information. Mr. Levison never appeared before the grand jury, and the government's interest in the information sought by the subpoena will be revealed by the unsealing ofthe government's search warrant. Thus, the government does not believe that the grand jury subpoena needs to remain sealed at this time. To the extent the court believes the release ofthe subpoena would disclose a"matter before the grand jury," the government seeks permission from the Court to disclose the subpoena as part of the record, if necessary, in the Court of Appeals. 10 Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 11 of 17 PageID# 665 REDACTED CONCLUSION For the foregoing reasons, the United States requests that the Court sign the proposed order (Exhibit 25) partially unsealing the documents described in this motion, and authorize the release of the redacted versions attached to this pleading as Exhibits 1-23. A redacted version of the proposed order suitable for public release is attached as Exhibit 26. Respectfully submitted, KathleenJ^fKahoe Acti^^mfted States Attorney By: Andrew Peterson Assistant United States Attorney United States Attorney's Office Eastern District of Virginia Alexandria, VA 22314 703-299-3700 Andy.peterson@usdoj .gov 11 Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 12 of 17 PageID# 666 Case l:13-ec-00297-TCB -SEALED* Document 11-1 Filed 09/20/13 Page 1of 5PagelD# 50 REDACTED EXHIBIT 1 Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 13 of 17 PageID# 667 Case l:13-ec-00297-TCB'SEALED* Document 11-1 Filed 09/20/13 Page 2of 5PagelD# 51 If UNITED STATES DISTRICT COURT FOR TOE EASTERN DISTRICT OF VIRGINIA J 1 m \ 020i: C4H1"*. :i IN RE APPLICATION OF THE EC 35^ UNITED STATES OF AMERICA FOR ) »»*•• 18 U.S.C. § 2703(d) j Filed Under Seal AN ORDER PURSUANT TO *£/) Acted ORDER The ItaM M.ha, submitted an application pursuant to IS U.S.C. 52703(d), and other m.brmation described in Attachment A.0 *is Order. Tbe Court finds Mthe UMA*.* .Hfccd specific and article ta, showmS « there are reasonable 8rounds to beiieve ft* ft. records or other infinmatiot, ~+ are nfkmm and material Uan ongoing criminal investigate. n. Coon deterntines that there is reason to believe tha, notiftca.ion oi'tho existence o, mOrder will seriou* jeopardize ft. on8oi„8 inveS,ig»,io„, M b, tfvtag tar8e,s an apportuniry .0 fiee or eontinne High. mam prosectt.ion, destroy or tamper with evidence. c„tm8c patterns ofbehavior, or notify confederates, ft. 18 U.S.C. 2705(b)(2). (3), (5). nIS THEREFORE ORDERED, pursuant to 18 U.S.C. §2703(d), that Lavabit LLC ft* within ten days ofthe date ofmis Order, disclose to the United States the records and other information described in Attachment Ato this Order. IT IS FURTHER ORDERED that Lavabit LLC shall aot disclose the existence ofthe application ofthe United State, or fte extstence ofthis Order of the Coon, ,0 the subscribers of the account(s) listed in Attachment A, or .0 nay other person, unless and until otherwise Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 14 of 17 PageID# 668 Case l:13-ec-00297-TCB *SEALED* Document 11-1 Filed 09/20/13 Page 3of 5PagelD# 52 Redacted i Kv ih. Court except that Lavabit LLC may disclose this Order to an attorney authorized to do so by the Court, extepi uuu for Lavabit LLC tor the purpose of receiving legal advice. IT IS FURTHER ORDERED that the application and this Order are sealed until otherwise ordered by the Court. John F. Anderson Untied States Magistrate Judge 4_^ilc?,>«3 Date A TRUE COPY, TESTE; -.' ;-P:;»< HP. !-\r>TfitOT CQt !•" :",V! Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 15 of 17 PageID# 669 ™Qnt 11 1 Filpd 09/20/13 Case l:13-ec-00297-TCB SEALED* Document 11-1 Filed 09/^u/i^ Page 4 of 5 PageID# 53 REDACTED ATTACHMENT A { The Aceount(s) •nK order--..-*—»« •*— -*** "" fo"°"'in8* ' iiccouTtt(s):( U iiiiV Records and Other Information to Be Disclosed WSSSCSSSSSSSSSSSSSSSK for the time period from inception to the present: K The following information about the customers or subscribers ofthe Account: Names (including subscriber names, user names, and screen names); Xses (including mailing addresses, residential addresses, bustness I. 2. addresses, and e-mail addresses); tocai and long distance telephone connection records; 3. 4. 5. 6. 7. 8. B. Tetahone or instntmen, number, (inetudine MAC addresses); aher slcriber numbers or identities (including the regislratton internet Protocol ("IP") address); and S i source ofpayment for such service (including any ered,, card or bank account number) and billing records. .,„ records and other information (no, including the contents ofcommunications) relating to the Account, including: Internet Protocol addresses; 7 Information about each communication sent or received by the Account, Sn the date and time of the communication, the method ot £SS£ anddestination the source email and ^^^^"1^ (such as source and addresses, II addressee and telephone numbers). Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 16 of 17 PageID# 670 Case da3-ec.00297.TCB .SEALED- Document 1M Bed 09,20,13 Page 5o, 5Page,D# 54 ^ACTED ,attest, under penalties of perjury under the Mn,ai,«d i,t this declaration is urne and correct., ant empfoyed by Lavabi, LLC, and my oflicia, ,1am acustodian ofrecords for Lavabit LLC. Istate lliTo^reeo^at^dhereto is theoriental record oratare duplicate of,„eordinal record it, the custody ofLavabit LLC, and that1tun ft. custodian ofthe attached records consistog of (pttges/CDsdcilobytes). 1tether state that: , .„ records attached ,0 this certificate were made a, or near ft. time of.he Mmmx ofthe matter set forth, by. or from information transmitted hy, aperson with knowledge of those matters; b. sue,, records were kep, in the ordinary course ofa regulnriy conducted busmess activity of Lavabit LLC; and 0 such records were made by Lavabit LLC as aregular practice. ,* state that this certiHcation is intended to satisfy Rule 902(1 1) of the Federa, Rules of Evidence. ^^ Date — Signature Case 1:13-sw-00522-CMH Document 36-19 Filed 02/24/16 Page 17 of 17 PageID# 671 Case 113-ec-00297-TCB-SEALED- Document 11-2 Filed 09,20,13 Page 1o, 4Page,D# 55 EXHIBIT 2 Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 1 of 20 PageID# 672 Dnt1lo piipd 09/20/13 Case l:l3-ec-00297-TCB -SEALED* Document 11-2 Filed 09/*J/ia Page 2 of 4 PagelD# 56 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE WUgSHP OF THE UNITED STATESI OF^MbWCA vnu AN ORDER AUTHORIZING THE ^^ACTj_D \ ) ^^^^k^^&^icE REG ISTER/TRAP AND TRACE, DEVill ; ON AN ELECTRONIC MAIL ACCOUN T ) vj _— wsEcafn ORDER «, matter having come hcfore the Court pursuant to an Application under 18 U.S.C. bv'^^H Assistant Cited States Attorney, tar attorney for the Government :aef:edm^LTP..M0),,r1uestin8anOrderUnder1BU,.C.§3m,«u,horf^ c.pt,,rap,evie,>na1 e,ec!r^=u1,icarion3beinS5en,1romorse^« ^^^^•M that registered to subscriber ^ ^ ' ' associated wtth^^^^H ELECTRONIC MAIL ACCOUNT). «. Court to* M-ho appUcan, has cert fie fta tas«„la,ion and use is relevant to an ongotngcrn^Unv^t lSUSe«c4 )oy ^ ^ rf • , . ... ,io„ likely IT APPEARING that the tnlormalton HKeiy to be obtained by the penAiap devtce IS «d used b, Lavaht, and the Pdcr. Bum ta, or sent to the SUBJECT ELECTRO ^^ ^ ^ ^ „***». and to d. riMta and receipt ofsoch rrattsmtsstons, to record ..-^-w,,*, • ,i„« «nrt Internet Protocol address of all log-ins; on uk. record user log-in daia (date, time, duration, and Internet Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 2 of 20 PageID# 673 Case 113-eo-00297.TCB-SEALED* Document 11-2 Eiled 09,20/13 REDACTED SUBJECT ELECTRONIC MAIL ACCOUNT, all for aperiod ofsixty (60) days from the date of such Oreeror the date the monitoring equipment becomes operational, whichever occurs later; rr • FURTHER ORDERED, pursuant ft 18 U.S.C. §3123(b)(2), that Lavabit shall furaish agents from the Federal Bureau oHnvestigation, forthwith, =1, ft—. Mta, * technical assistance necessary to accomplish fte installation and use ofthe penArap devtce unobtntsively and with minimum interfere to the services,ha, are accorded persons with respect to whom the installation and use is to take place; T,S FURTHERORDEREDthaubcUnited Sta.es uahe reasonable steps ,0 ensure tat lhemonUoriWeqUipmen,isnbtusedt«cap,aretuty»Suhicct,.portio„ofa„e,eclronic„ra, ntessage, which could possibly contain conlent; [T BFURTHERORDERED tha, Lavabit shall becompensated by the Fcdet.,1 pub,ic provider, rhe Untred States . • ^ ^^ i ««f. ™rt fdVmv informat on which has been coueueu uy ciihseouent modification thereof; and (U) any iww bUDsequuii nww rornrrl this nformalion lh0 Pe„,„ap device. Pursuant to IS U.S.C. ,3123(a)(3)(B), as amended such re )^ prolided^and under sen, to-,1s Conn within 30 days ofthe termrnattonofthts Order, ApP,irbeSea,edun,o,heWiseorderedb,,,,C„urr,aad,„a,eop,sofsuchO,derm,,be 2 Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 3 of 20 PageID# 674 1:13-ec00297-TCB-SEALED- Decurpen, 11-2 Piled 09/20/13 Page 40,4 Pa8elD# 58 Case furnished to the Federal Bureau of Investigation, the United States Attorney's Office, and KE^CTED Lavabit; IT IS FURTHER ORDERED that Lavabil shall not disclose the existence of the pen/trap device, or die existence of(he investigation to any person, except as necessary to effectuate this Order, unless or until otherwise orcered by the Court. SO ORDERED; :t^/&utedStatesMagistral Hlon. Theresa C. b'uehanan United States Magistrate Judge I » Date;ynjn_ Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 4 of 20 PageID# 675 PilPri 09/20/13 Case l:13-ec-00297-TCB SEALED* Document»1111-3<a Filed 09/20/ld Page 1 of 4 PagelD# 59 REDACTED 3 Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 5 of 20 PageID# 676 11 •* Pilpd 09/20/13 Case l:13-ec-00297-TCB SEALED* Documentnt 11-3 Filed Page 2 of 4 PagelD# 60 i! Li—'— I, • -I- » i ~~~~~ "'• \\ IN THE UNITED STATES DISTRICT COURT FOR THE i^J I , EASTERN DISTRICT OF VIRGINIA \J^MMM^--^ Alexandria Division IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA Wii <vN ORDER AUTHORIZING THE J fNSTAl 1ATION AND USE OF APEN RCGlSTKlVrRAP ANDTRACE DEVICE ON AN ELECTRONIC MAIL ACC.OUN I ) REDACTFn OMOS Seal} »•» * 2./ ^ *&D MjTTJi_NIi_mt_^^ The United States, by and through its undersized counsel, hereby requests the Court , on June 28.2013, at approximately 4p.nu this Court entered an Order pursuant w„USCV123 author the installation and use ofapen renter and the use ofauaP and (mcc dcvitc (.,clVtrap devM on ,1 electron, —anions b*. sent I., orsent •die Thai e-mail nccourn is controlled by Lavabit, elcc.ronie mail account LLC. ,„ fc order, the Court found tat .he kWhi to be eolleercd by rhe pan/trap aevte MllW be rclcvan, . re, ***cranina. invest,^. In addibm, ,he Clour, ordered ,lirabit •,,,,,, M* aSen,s from .he NW Bureau oflnvestisuio,, forthwith, all infom«W», MUM and fcchn.cn, a^aaec nece.ary .„ aceomplisb ,he insudUiun and « of die pen/trap device." 3 The Federal Bureau ofInves.iga.ia,, sereed „copy ofd,e Order cm Uvnbi. U» „. afternoon ArePre,en.„.ive tfU** S,a,ed .ha, 1. could no, provide .he reeled ir.V.rma.ion beea„Sc ,he « ofdre account had enabled LavahiL* eneryp.iou services, and ,,ua Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 6 of 20 PageID# 677 Case l:13-ec-00297-TCB 'SEALED* Documentmi* 11-3 Filed Filed 09/20/13 09/ Page 3of 4PagelD# 61 REDACTED , Ainformation The representative ofLavabit indicated Lavabil would not provide the requested information. ,., , .«mi the information but that Lavabit did not want muvabit had the technical eapabihty to decrypt the mfcm* to -defeat [its] (WW system." 4 ,ta Kpre,e„,=, ve. ofLa™bh did no,comp.y ,i.hthe Order, and mdrea.ed he fo' ^'° ^ Register "JViM' and,,.Irap andvl,,11ace 1CC Act„ uiuees .his Conr..ho an-horl.y -ordera 5 "* The Pen ,in ,hc execution ofalawful pen register or trap and trace order, provider to assist the government in the execution ? , • s^Hon 3122OfTitle IB. United States Code, provides,, including by providing information. Secwm3Wi , H !Ction.. .hall direct, upon the request ofthe applicant, the Dart. -An order issued under this section- ... SIWl • ftt,lUies andteehnicaiassistanceneeessarytoaecomphshthe funnshingonnlbrmatkmjHuht^and HTM, tracc device under section 3124 ot tins nuv, „_««« -Upoarbe rea«os, ofan auomoy for.heCiovenauea, o„m o.beero .s124(a) proves, wire or electronic eommun.cauon sen fuj« banter a provider ol Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 7 of 20 PageID# 678 Hied09/20/13 Case 113-ec-00297-TCB-SEALED* Document,,,, 11-3 filed Page4of4PagelD#62 assistance is diree.od hv aeonr, order as provided in seelion al«(h)C21 of.his .i.le, Section ,IM(b) contains . W. provision governi,iS trap and .race orders. , ,,United -. ionto, Wherefore, ,hc hla.es mm*«" requests ,.n Order viu directing Lavabit to comply fcrtwith ill, the Coon's June 28,2013 Order. Wit Respectfully submitted, NEIL11. MACBRIDK United States Attorney By: Assistant United Stales Attorney Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 8 of 20 PageID# 679 n mpntll4 Filed 09/20/13 Page 1of 3PageID# 63 Case l:13-ec-00297-TCB SEALED* Document 11 4 REDACTED EXHIBIT 4 Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 9 of 20 PageID# 680 n mpntll4 Case TlS-ec-00297-TCB'SEALED* Document 11 4 Filed 09/20/13 Page 2of 3PagelD# 64 ? J if 01 THE UNITED STATES DISTRICT COURT FOR THE L 1 ia JUN2 89QI3 d"' CIERK. U.3 EhtFTF' AUJXAHC" EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MAITER OF THE APPLlCATl^ OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING THE SaLLATION AND USE 0? AWM REGISTER/FRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT REDACTED ) ) ) ) ) ) (Under ScaD 1:13 EC 297 OTiDjmC™^^ . I c28 2013 at approximately 4:00 p.m., this Court entered an Orde 1 _^^^ sent to ihe electronic mail account^ controlled hy Lavabil, LLC CLavabiO, and Jer • wWgh is an e-mail account WHEREAS,thisCoart found thatthelaformalion ohtainedhy pW*P fcc relevant to an oa5oin8 criminal investicntion; and . „ coarf, Order directed that Lavabil "shall famish agents .torn lb. WHEREAS, the Court s uroxr • - forthwith all information, facilities, and technical assistance .'cder.,l Bureau of investigation, forthwith, pessary to accom,r,ish the installation and aseofthe penrtrap device, and «.L»vab,linfcnned te Federa, Barcaa of,aves,iga,ion,hat,he userof,h ihf relevant information; and tf . , mcd tbe FBI ,ba, I, had the technological capability to obtain WHEREAS. Lavabit informed tire r iji *. information but did no, wan, ,0 "defeat I'tts, M. system;" Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 10 of 20 PageID# 681 Casel:13-ec-00297-TCB*SEALED* Document 11-4 Filed 09/20/13 Page 3of 3PagelD# 65 REDACTED IT IS HEREBY ORDERED that Lavabit LLC is directed to comply forthwith with the Court's June 28,2013 Order, and provide the Federal Bureau of Investigation with unencrypted data pursuant to the Order. To the extent any information, facilities, or technical assistance are under the control of Lavabit are needed to provide the FBI with the unencrypted data, Lavabit shall provide such information, facilities, or technical assistance forthwith. Failure to comply with this Order shall subject Lavabit to any penalty within the power of theCourt, -.mJU^^VA f"V*J ^crinu^d *****$SO ORDERED. U/i^j lA/i PljS JL /^T^JFhereaa Carroll Buchanan C ^Urqtsd-Qtataa ManlatoafaJUa^? Hon. Theresa C. Buchanan'; \ United States Magistrate Judge' Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 11 of 20 PageID# 682 case l:13-ec-00297-TCB-SEALED- Document 11-5 Filed 09/20/13 Page 1of 8Page.D# 66 REDACTED 5 Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 12 of 20 PageID# 683 Case l:13-ec-00297-TCB 'SEALED* Document 11-5 Filed 09/20/13 Page 2of 8PagelD# 67 IN THE UNITED STATES DISTRICT COURT FOR THE j. EASTERN DISTRICT OF VIRGINIA Alexandria Division OEM. U.S. Di?"iCT 00t!a1 IN THE MATTER OF THE APPLICATION OF THE UNITED ) *^ED UNDER SEAL ) .,„pr~„ AUTHORIZING THE USE OF APEN REGISTER/TRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT ) ) ) STATES OF AMERICA FOR AN ORDER AUUS'pKlA.Vrrr.L-. ) No. l:13bC297 ^ACTED MOTION OF THE UNITED STATES FOR AM ORDER TO SHOW CAUSE The United Slates, through the undersigned counsel, pursuant to Title- 18, United Slates Code, Socio,, 401, hereby moves for the issuance of«„ order direaing Ladar Levison, ihe o«*r and oocrator ofLavabi, LLC, an electronic eontmnnications service provider, to show eatise why Uvabi, LLC to* failed to comply with the orders entered Jane 28,20.3. in this matter and, as a re3„„, why this Court should no, hold Mr. Levison and Lavabit LLC in cnntemp. for its ^obedience and resis.enee to these lawful orders. The United States further requests that the Court eonvene ataring on this ntoiion on July 16,2013, a, 10:00 a.m., and issue asummons dtailng Mr. Levison ,o appear before ,his Court on lha. date. In support ofthis motion, the United Slates represents: 1. The United States is inducting acriminal investigation of Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 13 of 20 PageID# 684 Case l:13-ec-00297-TCB-SEALED- Decumen, 11-5 Filed 09/20/13 Page3o.8PagelD#68 ^vacted On June 10,2013, the United Slates obtained ^gSSSSSSftvSStSSSS^Lavabit LLC to ptovide,within tendays, additional records and information about] lemail account. Mr. Levison received that order un June ...20.3. Mr. Levison responded by mail, which was no, received hy the govermne„t unit. June 27,20,3. M, Levison provided very littleofthe information sough, by theJune 10,20Border. 28, 2013, th. United States obtained apen register/trap and trace order on a. On June 21 mail account, a copy ofwhich is attached together with the application for that « On June 28, 2013, FBI special agents met Mr. Levison a. his residence in Dallas, TOT and discussed the prior grand jury subpoena served on Lavabi, LLC and the pen register order entered that day. Mr. Levison did no, have acopy of,he order when he spohe with the agents, b„. he received acopy from the FBI within afew minutes of.heirconversion. Mr. Lev.son ,old the agen.s ,ha, he «o„.d not comply with the pen register order and wanted to speah ,o an attorney. It was unclear whether Mr. Levison would „o, comply with the order because it WM .echnioally no, feasible or difficult or because it was no, consistent with bis business pracice of providing secure, encrypted email service for his customers. 2- Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 14 of 20 PageID# 685 Case l:13-ec-00297-TCB 'SEALED* Document 11-5 Filed 09/20/13 Page 4of 8PagelD# 69 REDACTED 5. On June 28, 2013, after this conversation with Mr. Levison, the United Staves obtained an Order Compelling Compliance Forthwith, which directed Lavabit to comply with the pen register order. Copies of that motion and order are attached, 6. Since June 28, 2013, the FBI has made numerous attempts, without success, to speak and meet directly with Mr. Levison to discuss the pen register order and his failure to Provide "all information, facilities, and technical assistance necessary to accomplish the installation and use ofthe Pen/traP device" as required by that order. As ofthis date, Lavabit LLC has not complied with the order. 7, The United States requests that the Court enter the attached proposed order directing Mr. Levison to show cause why Lavabit LLC has failed to comply with the pen register order and why, therefore, he should not be held in contempt. The United State, requests that this show cause hearing be scheduled for July 16,2013, at 10:00 a.m., and ft* asummons l>e issued directing Mr. Levison to appear before this Court on that date. 8. The June 10, 2013 Section 2703(d) Order and the June 28,2013 pen register order remain under seal. In addition, these orders provide thav Lavabit LLC shall not disclose the existence ofthe governcmnfs appl-cations and the order, to the subscriberj^flor to am other persons unless otherwise authorized to do so by court order, except that Lavabit LLC may disclose the orders to an attorney for the purpose ofobtaining legal advice regarding these orders. The United States requests that these documents remain under seal, that the non-disclosure 3- Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 15 of 20 PageID# 686 Case l:13-ec-00297-TCB *SEALED* Document 11-5 Filed 09/20/13 Page 5of 8PagelD# 70 REDACTED provisions of the orders remain in effect, and that this motion and order and any subsequent pleadings and/or proceedings regarding this motion also be scaled. Respectfully submitted, Neil H. MacBride Unijed States Attorney Jnited States Attorney'g>mice Justin W. Williams U.S. Attorney's Building 2100 Jsmieson Avenue- Alexandria, Virginia 22314 Phone: 703-299-3700 Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 16 of 20 PageID# 687 Case l:13-ec-00297-TCB 'SEALED* Document 11-5 Filed 09/20/13 Page 6of 8PagelD# 71 REDACTED PROPOSED ORDER TO SHOW CAUSE Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 17 of 20 PageID# 688 Casel:13-ec-00297-TCB*SEALED* Document 11-5 Filed 09/20/13 Page 7of 8PagetD# 72 REDACTED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE ) UNDER SEAL STATES OF AMERICA FOR AN ORDER 3 No. 1:13EC297 APPLICATION OF THE UNITED AUTHORIZING THE USE OF A PEN REGISTER/TRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT ) ) } ) ORDERTO SHOW CAUSE ' Upon motion of the United States pursuant to Title 18, United States Code, Section 401, good cause having been shown, IT IS HEREBY ORDERED: I. Ladar Levison, the owner and operator of Lavabil LLC, an electronic communications service provider, shall appear before this Court on July 16, 2013, at 10:00 a.m., at which time he shall show cause why Lavabit LLC has failed to comply with the orders entered June 28.2013, in this matter and why this Court should not hold Mr. Levison and Lavabit LLC in contempt for its disobedience and resistance to these lawful orders; 2. The Clerk's Office shall issue asummons for the appearance of Mr. Levison on My 16, 2013. at 10:00 a.m. The Clerk's Office shall provide the Federal Bureau ofInvestigation with acertified copy of the summons for service on Mr. Levison and Lavabit LLC. 3. The Federal Bureau ofInvestigation shall serve the summons on Mr. Levison together with acopy of the Motion ofthe United States for an Order to Show Cause and a certified copy ofthis Order to Show Cause. 4. The sealing and non-disclosure provisions of the June 10, 2013 Section 2703(d) order and the June 28, 2013 pen register order shall remain in full force and effect. Mr. Levison Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 18 of 20 PageID# 689 Case l:13-ec-00297-TCB *SEALED* Document 11-5 Filed 09/20/13 Page 8of 8PagelD# 73 ^ACTED and Lavabit LLC shall not disclose the existence of these applications, motions, and court orders, including this Order to Show Cause, to the subscriber or to any other persons unless otherwise authorized to do so by court order, except that Lavabit LLC may disclose the orders to an attorney for the purpose of obtaining legal advice regarding these orders. 5. This Order, the Motion of the United States for an Order to Show Cause, and any subsequent pleadings and proceedings regarding this matter shall be placed under seal until funnel' order of this Court. Entered in Alexandria, Virginia, this day of July, 2013 Claude M. Hilton United States District Judge .-). Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 19 of 20 PageID# 690 Case l:13-ec-00297-TCB *SEALED* Document 11-6 Filed 09/20/13 Page 1of 3PageID# 74 REDACTED EXHIBIT 6 Case 1:13-sw-00522-CMH Document 36-20 Filed 02/24/16 Page 20 of 20 PageID# 691 Casel:13-ec-00297-TCB*SEALED* Document 11-6 Filed 09/20/13 Page 2of 3PagelD# 75 REDACTED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER, OFTHE APPLICATION OF TFIE UNITED ) UNDER SEAL ) STATES OF .AMERICA FOR AN ORDER ) No. L13EC297 AUTHORIZING TILE USE OF A PEN ) REGISTER/TRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT ) ) I JJL - y 2013 CURX. U.S. DtSTf'lCf COURT ORDER TO SHOW CAUSE Upon motion ofthe United States pursuant to Tide 18, United States Code, Section 401, good cause having been shown, IT IS HEREBY ORDERED: 1. Ladar Levison, the owner and operator ofLavabit LLC, an electronic communications sendee provider, shall appear before this Court on July 16, 2013, at 10:00 a.m., at which time he shall show cause why Lavabit LLC has failed to comply with the orders entered June 28, 2013, in this matter and why tins Court should not hold Mr. Levison and Lavabit LLC in contempt for ita disobedience and lesistence to these lawful orders; 2. The Clerk's Office shall issue asummons for the appearance of Mr. Levison on July 16, 2013, at 10:00 a.m. The Clerk's Office shall provide the Federal Bureau ofInvestigation .with acertified copy of the summons for sendee on Mr. Levison and Lavabit LLC 3. The Federal Bureau of Investigation shall serve the summons on Mr. Levison together with acopy ofthe Motion of the United States for an Order to Show Cause and a certified copy of this Order to Show Cause. 4. The sealing and non-disclosure provisions of the June 10, 2013 Section 2703(d) order and die June 28, 2013 pen register order shall remain in toll force and effect. Mr. Levison Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 1 of 21 PageID# 692 case l:13-ec-00297-TCB-SEALED* DocumenUl-G Filed 09/20/13 Page 3of 3PagelDf/76 redacted a„d Lavabi, LI.C Aall « di.closc ofto =,ppli=«ioas. n^.ouoas, and cour, order,, i„d.dta8Order.0 Sho« C=.u«, .0 rne subscriberor lo aay oO,er persons unless otherwise autonzed .0 do so by courc order, excep. .i,a. Uvabi, IXC may diselcse .he orders ,0 an wioniei- for Ihe purpose of obuiimr.B les»i .•><!"« regardinu those orders. 5. This Order, the Motion ofthe United Stiiles for an Order to Show C.usc, and my subsenuen. pleadings and proeeedb^ rueardinstlds matter shall beplaced ^der seul tntUl further order of this Court. Entered in .ye-'candrif, Virsinia. this J^day of July. 2013 oSJ'SrHnton United States A"n=IUE COPY.TESTE; CLERK, U.S. DISTRICT CQUiTT Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 2 of 21 PageID# 693 l:13-ec-00297-TCB "SEALED* Document 11-7 Piled 09/20/13 Page 1of 2PagelD# 77 REDACTED EXHIBIT 7 Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 3 of 21 PageID# 694 case l;13-ec-00297-TCB-SEALED* Document 11-7 Filed 09/20/13 Page 2of 2PagelD# 78 AO S3 intv ftiW) Saaini.-wi» «Ciiniisal Ca; United Stm'^s District Court Bisiuiii District of Virginia ^ Redacted PD Qp/U 8 United Swtosof America ) Ladar Levison CascNo. l;l3oc297 } ) ) SUMMONS IN ACRIMINAL CASK • o„. •S.pc.edi„6l.dicm.0« P,obalion Vioblion Po.ilior o . ll'lacc: I 401 Counlioujc Squnrc bqunrc Alexandria, VA22314 a • S..pe.eOi„e .nfo™..ion • V»l„ion Peliion • Violniio,, No.i« 8 Orel., nf C„... Courtroom No.: SfW-Juilg« >UUon natenndTiine; 7/16/13 ^ IQ-W This offense is briefly Jescribcd as follows: See Awached Order 07/oy?:oi3 l^Junn^j!Kcr jr;rLre I-Deputy Clerk 1declare under penalty o(perjury ihal I have: • ExcuuicU and rcmrned this suinnions 1:J Rcliirned this summons tinexnciiictl ATRUE COPY.TCSTE*. CLERK. U.S. niSTRICT CCA'JTT nEPijiy QJiJiK Printed nan< and lille Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 4 of 21 PageID# 695 case l:13-ec-00297-TCB-SEALED* Document 11-8 Filed 09/20/13 Page 1of 3Page,D# 79 exhibit 8 Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 5 of 21 PageID# 696 Case l;13-ec-00297-TCB 'SEALED* Document 11-8 Filed 09/20/13 Page 2 of 3 PagelD# 80 AO 1(f-T'-OI-'WJ S«S;«fa « TcmJi- U-l I IJC.-:}:! . 1/ • liSi «CM jviy I United States District Conn lef ttis Easiern Disirict of Virginia SUBPOENA TO TESTFKY BEFOaETHE GRA.ND JURY TO: iSufm.tii Lcvi>uti •yo'J AP'COWlAI'lDcD lofippea and wrifybefcrs theUahwi S(8i« dir.riet cojrt it iho lice. dtte. pi«« }h:>Tn l«lr.v »ttaify btfor? the wuTJ snwij«y- yoaarrive, yuu tnuii rcmia «Lhs juOje cfseoun oHicer aUo.«'$ you toleave. b»i!Jt>4TIrr«: U.-flTtD STATES DISTRICT COURT win. ihc VlJOAM J'll)- 401 Cu'jrll>ouse3i U>rc Alcxindrlt. Vifjinia 213U Yo. ,i:«i»)sob.me ^.iih ycu iht tlwwnlciJly Jioftd Womtiisr., c objKU (sisr.kifnct ajp!i»9ie)'. It. addi.ifiii to>our i.cfi«nal mipcjr..ncc.3t>" "^mian "'"8 e""" i"r/ bv.bi. can. In Jy S.U iSccur. Soeku. L.vvr)orTUSlTr.n.nor, S««rUy ,c«ZL. -MXnS UrrPS with cllcn» u>l"Sir.c bv^uiuom »cb ,.<c; .nd tnrrypiM SMTP itiK-nui cominuniciions uvingollicr preiocolj) v.,th i»ui! strvers, A«y mK-r infonn.ilo.. nvccvv.ry » «compll«l. t..c IrmllMlon anO «c of ti.« p,..'inp (UvKc or«cr^ iHL B.cl«.n=n 0,. June '.8.2U13, unob.ru.h.ly -nJ vltl. minimum .nurferctKe lo ihc «r>lc« tha. BfcordBi) perjons wicM reipc" lo If <i>cli infoiinsllon ii clfCtronlcally stortJ or irnubk 10 U« pliysically iransporttd to (he sniLd jury, you .0 .MC F<d..-.l 0u««« orUvnncut.on. ITOvl.ion ofiU« l..torma..O» coi'beFOt Uo<» not cicusa your personal Jiipearancs. ,..r... 7... ^ CLCIO; OF SlgnSm^^n^itrKC^Sip^^ ni'arz, i.dcr«l cmiUl. =.™i .cl:cW. nurrbsf oflh. U^i.td SWei OU....:/, <« icj;ucf« ihlj Sjb7©5na, uc. O^Cift 91 tUt L^niUxJ 3ik>tci Artvtiif; Jii>(in W. Willlimi I'liltcdSnlti! Att9nio'» UuilJ'"4 3IC!> Arniur .MiwrBfi.1. Virgin. 1»N (^Qj) ;9?07W Su'O >vS3 Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 6 of 21 PageID# 697 Case l;13-ec-00297-TCB 'SEALED* Document 11-8 Filed 09/20/13 Page 3 of 3 PagelD# 81 AO Ufl(R!v.0!WS'.;?c-.ri;9T»Uf/3er«t* lOsliS PROOF OF SERVICE .r This sutpcera (or{namo of InaividLal of organiiation). '.vas fCCcK'cd byfne on (Cste) , 7tii W a/J* T Ic<r3or-lly scr/«31'l-j aubponna on Uis in^lvWcal at (piace) t*r\ i 1 t :n (32ts)_ Cj 1left ilie suticcsra at me inGl'/idus'"s lesiderceoraswi piaca ofabo<Je w'.h (nariie) ffjalej a wreon of suitabio asa erd (3'.5c;e"jor. v.no los'Ccs mere, ©n andmailed a (Xpy to theii^lvidusl's lastknc-.vn address; or O Iserved ln« sutpoens on(name ofInidfvidual) —_—'s doeiaraied bylav; io acceptseivice ofp<occ9S on behalf of(namo of organ.zatJon) ' (date) ; Cf C1 I feWir.ed UiB 5ubpcena unexaculsu tecause, r: Oilier {specify); IdeCB.'e ancer Itie psnaiV oJ pe^icfy ^">31 t-lis r-fcrniat'on islru9. Dcte:_5h!^i)_iLr-^^^- RAj? < Server's addr'ss Addi'.ieitolinlcnnatlon regardlny mwrnpted ssrvHcss. ctc Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 7 of 21 PageID# 698 l:13-ec-00297-TCB *SEALED* Document 11-9 Filed 09/20/13 Page 1of 6PageiD# 82 EXHIBIT 9 Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 8 of 21 PageID# 699 Case l:13-ec-00297-TCB *SEALED* Document 11-9 Filed 09/20/13 Page 2of 6PagelD## 83 aO "3 (Rev UNDER SEAL United States District Court for liie Eastern Districi of Virginia REDACTED In till} Maiu-r of llic Scarch of (Rrially ihs:nbt iha properly lo it uarcwl or idcnti/y the pinon hy iu-.t-c andjddress) ) INFORMMIO^SSOCI^rE^W^ Case No,''-13SW522 ) CONTROLLED BY LAVABIT. LLC SEARCH AND SEIZURE WARRANT To: Any aiilhorizcci law cnforccmcm officer An »pplic...io„ by . fcdml hw crforccmcnl officerNQOilfg or .n ..ton,oy foristrici .ha eov=mm.m ,c,uc>u .!« «=rcl, o of Ihc following person or propert)-loomed in tiw daemlfy /vr«« or datribt ihproperty to be aarcluni Seo Ancichrnent A lu locaUon): Tl,» por.on or propw .0 b-. .SMrcKcd, described f.bove, is believed .0 eoneeal »•..«/, »» >'« propifiyK li' See At'.achineni B im Uint ihi arnUavti(s). or any rcMrU«l tc.timo»y. .stabUsh pabnbic causc lo 5<.-arch and sci« th= person or [jroiKr;y, VOU ARE COMMANDED lo cxcuulo this vssrmm ci> or before n in ihc anytime 6:00 a.m. to 10 p.m. ^^ . !?( fitcsiabtished. any lime in Ihc day or right as 1find reastinahlc cause lias been Unkss delayed noiicc is nuthorized below, you must tjive acopy oflhe wiirrani Qiid arcccipi inkcn 10 ihc pcnion from wl:om, or from whose prwiissi. the property wiis taken, or leave the (.-opy and r-tupi .t .he placc wIktc the property was tal:=n. Th" om«r CNCCUting this warrant, or nn officcr prese.it during die e.Kcciition of the waniml must ptipnrc on inventory .is required by law nnd pro.npUy r.;liirn Ihis wamint and inventory to Uuttcd Stiilcs MukiMtuIc Judge The Hororable Ciauda M. Hilton • OiJir.i) • 1find that immediate nolincalion may hav^ an adverse result listed in 18 U.S.C. §2705 (cxcepi for delay ofirial) and authorize ihu ofi-cr exeeming this warrant to delay notice to the person who. or whose properly.«.li bSforchcd or sciiicd day^ Huntil, ihe faci.«; Justifying, the later specific dale ot Daw a:ii1 line issued /§/ Clitudc M. Milion City and stalo: Alaxandrla. Vjrsjnia.. United Slates Disiricl Judge Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 9 of 21 PageID# 700 l;13-ec-00297-TCB ^SEALED* Document 11-9 Filed 09/20/13 Page 3of 6PagelD//84 REDACTED TTACHMENT a property to Be Searched This warrfiiU applies to infomiation asEociaieti sloKd «premises conlrolieJ by l^vabi,, LLC. .company thal»==cpl= smioc oflcgd Dallas, Tc;xas, 75204. Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 10 of 21 PageID# 701 Case l-13-ec-00297-TCB ^SEALED'^ Document 11-9 Filed 09/20/13 Page 4of 6PagelD# 85 redacted ATTAC{i?.n;NT.' 13 Particular Tilings to be Seized I. laformntion to be disdosctl by Lavabit, LLC (tUc "Provider ) To the extent that Uic information described in Anaclinient Ais wiihin the possession, custody, or CDinrol of Ihc Provite, including any emails, records, Wm, logs, or information thot has b«n ddctd bu, ii siiil available to the Provider, the Provider Is required to disclose the following information to dte government for each account or identir.er listed in Attnctoent A: a. All information necessan' to terj-pl communications sent to or from ite Lavabit including encryption keys and SSL keys; ' account b. Ml imomiation neccssar,. to decrypt data stored in or other^vise associated ™ilt the iQViibil account Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 11 of 21 PageID# 702 Case l;13-ec-00297-TCB'SEALED" Document 11-9 Filed 09/20/13 Page 5of 6PagelD# 86 REDACTED n. Information to be seized by the government All infomiatioii described above inScction I that constitutes fruits, contniband, evidence U.S.C. violauons violations involvir.g^^^ ^ inciuomg, involvir.sHi^HBBiincluding, lor cacn cach account or identifier wcnuncr listed iimcu on u.» Aitacluncni A, information pertaining to the following mailers: a. All information necessary to decrypi conuiiunications sent to or from the Lavabit c-mail accouni including encr)'piion keys and SSL keys; b. Ail information ncccssary to docrypl data stored in or otherwise associated with the Lavabit account Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 12 of 21 PageID# 703 Case l;13-ec-00297-TCB ^SEALED* Document 11-9 Filed 09/20/13 Page 6of 8PagelD/# 87 redacted r»7nTTTrir ATR OP AUTHENTirrrV CW OOMl-STIC ^ RTfSrN-ESS RECORDS PTJRSIJANT TO FltDEFLVL RULii:. nifF.VTnENCE902fin , , attest, under psnallics ofperjury under ihc Ia^.. of L!« United States ofAmerica pursuant lo 2R U.S.C. §1746. tim: the i.iforn>^ion contained in this dcclaraiion is true ami coirect. Iam employed by Uvabit, E.LC. E-Jid my . laiB a custodian of records for Lavabit, official title IS LLC. Istate that Mch of the lecords attached hereto is tlia orism-il reeord or atrue duplicate of the oriBinal rccori in the custody ofLav.bit. LLC, and that 1am the custodian ofthc at«<ch=d records consisting of a, (pasesrasftilobytcs). 1ftuther state that: all rccords attached to this ccnilicale were made iit or near the tirae ofthc oecurrcnee oftl.e matter set fortlt, by, or from inTor,nation innstnitted by. aperson ^%ith knowledge of those matters; b. such records were kept in the ordinary course ofaregularly conducted business i',ctivit>' ofLaN'iibit, LLC; and C. sucli rwords were made by Lavabit. LLC as aregular practici. !iiinher state that ihia ceitification is tiiiended to satisly- Rule 902(11) of IheFedml Rules of rividencc. Signature Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 13 of 21 PageID# 704 case l:13-ec-00297-TCB-SEALED* Document 11-10 Filed 09/20/13 Page 1of 2PagelD# 88 EXHIBIT 10 Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 14 of 21 PageID# 705 Case l;l3-ec-00297-TCB *SEALED* Document 11-10 Filed OS/20/13 Page 2of 2PagelD# 89 jL_ (e UNITED STATES DISTRICT COURT EASl-ERN DISTRICTOF VIRGINIA 6 Alexandria Division RJ THE MATTER OF THE SEARCH OF TVTcnoK.f A-nnv •vS^nriAT]?n vvtth ) ) lifli Ia (Local No. I:13s'.v522 ) TMA'l" !S S rORRD AT ) CONTROLLED BY LAVABIT, LLC ) redacted nnnT.R toskaL The UNITED STATES, pursucm to Local Rule 'i9(B) ofiiit: Local Criiiiiniil Rules for the United States District Court for the Eastern District ofVirginia, having movcii to seal the application for asearch warratu, Ihe searcli warrant, the affui.-ivit in .•lupport ot the search warrant, the Motion to Seal, and proposed Order in this matter; and 'Die COURT, having considered the govgmment's submissions, including the facts presented by the govenwnent lo justifj- se-.Iing; having found that revealing die material so«&ht to be sealed would jeopardize an ongoing criminal investigauon; having considered the uvailabic aticmaiivw that are Il-ss drastic than scaling, and finding nono would suffice lo protect the government's legitimaic interest in concluding the iiwesligaticn; and havmg found that this legitimaic government interest outweiglis at thi-s time any interest in the disclosure ofthe rnuJcnal; it is hereby ORDERED. ADJUDGED, and DECREED that, !hc application for search warram, the search warram, die affidavii isi support of the search warrant, Motion to Seal, and this Order be sealed until further Order by the Court. It is further ordered that law enforcement officers mny seA-c .1 copy of the wan^t on the occupant of the premises as retiuired by Rule 41 ofthe 1-cd, R. of CrLni. Proe. /s/ Claude M. Hilton Virgin^'"' United States District Judge Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 15 of 21 PageID# 706 l:13-ec-0D297-TCB 'SEALED* Document il-11 Filed 09/20/13 Page 1of 2PagelDW 90 redacted EXHIBIT 11 Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 16 of 21 PageID# 707 Case l:13-ec-00297-TCB *SEALED* Document 11-11 Filed 09/20/13 Page 2of 2PagetD# 91 redacted !N THE UNITED STATES DISTRICT COURT FOR THP: RASTERN district 01- VIRGINIA, INRE: APPLICATION OF TliS UNITED STATES or/VMBRICA FOR AN ORDER PURSUANT TO 18 U.S.C. f2705(b) CaseNo. 1;13SW522 \ Filed Under Seal r U , ^ '-0^13 ^ Ci.5P''..iis.Dr;iW.i cc!;-i ORDER Thi! Uiiilod Suites has submilted mapplicalion pursiianl to 18 U.S.C. 52705(1)), rcqucsfmg ,tac Ita C<,«n issue an Ord» co,m„mdins Lavabil, ..n clecironic commu.,ica,ioas seP..ica Frovi<l.t mitor nr.mola commuine s=n ic«, aot to notiiy any person (iMludtns Ih. subscribers or Mlomm oflh= accountCs) listed itt the search «amml) of ibe existence or die attadted sesrcl; wammt until further order ofthe Couil The Court determines that there is reason to believe dial notir.eatiun ofthe existence of U,e attached warntnt ™I1 seriously jeopardize the investisation, including by givine target., at, opportunity to flee orcontinue (light from prosecution, destroy or tan,per evidence, change patterns ofbehavior, or notify confederates. See 18 U.S.C. §K05(bX2), (3). (5). IT IS TUP-REFORE OllDERED u.nder 1S U.S.C. 62705(b) that Uvabit shall not disclose the existence of the attached search tvanant. or this Order of the Court, to tl.e lisled subscriberor to any other person, unless and until other,viso authorized to do so by d,e Court, excopt thai Lavabit may disclose the attached search tvimnt to an attorney for LavabU for the purpose ofreceiving legal advice. IT !S FURTHER ORDERED ihal the applioauon and Uiis Order are sealed until oiher\vise ordered by ihc Court. Claude M. Hilton United Slates DislricC Judge Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 17 of 21 PageID# 708 l:13-ec-00297-TCB 'SEALED* Document 11-12 Filed 09/20/13 Page 1of 6PagelD# 92 exhibit 12 Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 18 of 21 PageID# 709 Case l:13-ec-00297-TCB "SEALED* Document 1M2 Filed 09/20/13 Page 2of 6PagelD# 93 IN THE UNITED STA TUS DISTUICF COUilT FOR i EASTtllN DISTRICT 01- VIRGINIA .ilt I b Alexandria Division IN THEMATrSROFTHE ) FlLKlMiNDER SEAL ) , STATES OF AMERICA 1-OR AN ORDER ) No. i.l3i:C2;7 application OP THE UNITED AUTHORlZtNG THE USH OF APRN ) ON an liLl-CTRONiC MAIL ACCOUNT ) REOlSTEii-TlUP AND TlUCb DEVlCb Ken ) SUPPLF^lENT TO THE MOTION OF THE UNITED STATES for an order to show cause The Unted S»,«, .h^ugh >h= cou-d. submi,. .Ik lollowing »ddi«o,.»l i„ronn,r,ion in suppon ofiis shoiv causc molion nicd July9,2013t ,. F.llo«i„6.1.C or.h= call ™.h M. Lcvison and hi. Orda u. Show Cm«.c, ,l.c eovcmmcn. had a counsC. M. Lovi,on ™s in D..,:., Tcxa.s, m.h= FBI field ofncc, al ,h= time, ami hi. counsel fron, San Fmncteo, California. »d p,oscc.„o,. and FB. agon,, »o,n ,hc Washing,on, D.C. field omcc pa„ioipa.cd by >clcphonc. The coufcrcncc call was convened to discuss M-, Uvison's qacsdons and concc„,s about Ihc insmlhlion and opcmlion ofapen regisler on .he .argelcd email accoun,. Mr. Levisou's concent focused primarily on how ,hc pen rceis... device would be ins.allcd on .he Uvabi, LLC system, wha. da.a wonld be cap..,red hy ,l,e .Icvice, wha. da„. would be viewed .md preserved by the eovemn..en,. The parties also discussed whe.her Mr. Levison would be able .<. provide "keys" forencryptccl inrormaiion. 2. Durine Uie cona.n:n.« c-.U, the FBI explained to Mr. Lcvi.on <h.: the pen register .oald be in.,.ailed wi,h minimal impae. .he l.avabi, LLC system, and ,he agents .old Mr. Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 19 of 21 PageID# 710 case l:13-ec-00297-TCB-SEALED* Document 11-12 Filed Filed 09/20/13 Uvi.onmcy would m». hi,n when ...ty .o install th. Page 3of 6 PagelD# 94 go over will, Ui„ uny of tcchnicl details ,l,c i..»ll«tion .nd ... ofthe pen tcg^t. A. .or ,h=totn .Ollcctcd ty the device, the ..gents .ssttrod Mr. Uvison tl.„ th= only datn ,h.t the .gents .„„,d review is that which is stated in the order .,„d nothing ,nore «,»., nsor log.in inlot.a.ion „.l ,he date, titne, nnJ dnr.ticm ofthe transmissions Torthe target aeco®^^^ 3 Lavabil LLC provides eiwryplioii servicc to paid "sevs on ,he cot^cenee call with Mr. Uvison, the HM is reasonably cotif.dent titat with the enetyption Wvs which Mr. Levison can aeccss, it wonld be able view in „n ..n-cncryptcd fonnat a„y encryptetl ittlomtation required to be produced thrott,, the use or.he pen register. , Mr Levison and his at.on.ey did .-.ot eontmi. to the ittsttdlation and u.e ofthe pen register at the eonclfslon ofthe iuly iOeonfe,once call. On.uly OB, counsel who unless ilie go^•emmcm j>aid for liis truvel. 5 on i..lv 11..013. agents serve.1 Mr. l.evison with agrand jury subpoena ,iree,inS-UoaPpc.rbe.,e.he.ra„diu..,n.hisdistrie,o„.u,y,6,.0,3.Mag»aiu. wirness. the goventnten. was responsible ^r making Mr. Uvison. trave, a^ngentents. 6. On July 11,2013, the nndersigned counsel sent Mr, Uvisonan emati .nd.eal.ng a,a. he has been serve.) with ashow cause order front this Court requiring his appoaranco on July „ ,on and asubpoenarequiring his nppeanrnee on the sanre date before afederal grand jurv as soon as possible to n.ake his travel an-angcments. Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 20 of 21 PageID# 711 Case l:l3-ec-00297-TCB-SEALED* Document 11-12 Filed 09/20/13 Page 5o16 PagelD# 96 REDACTED !0. The proa'cdingbelorc Ihe Ciiiirl lodiiy is lo (iclcnninc whatlior Uvabil I.LC and Mr. Uvisoii should be held in oivil contcmpt. Civil conicmpl. u.s coniparcd lo crimir.a! coiUcnip! under rule ^2 of ihe Federal Rules orCiiminal Procedure, is imendc-d to cocrte compliEince wiih acourt order. Tlicn: nrc four elements to civil contcrr.pi; (1) the existence of valid order ot which Uvabil LUC nnd Mr. Uvison hud actual orconstmctive knowledge; (2) the order was in the government's "favor"; (3) Lsivnbit LLC and Mr. Lcvisoti violmed the t.;rms of the order and had knowledge, or constructive knoNvlcdsc. ofsuch violation; mid (4) the govcmmem si.tVcred harm .saresult, in re Crn,.Uury Subpocva (f-l 12). 597 F,3d 189. 202 (4th Cir, 2012). 1) Here, irach of these elements has been met. Lavabit LLC, through direct communicalion between the govemment «ncl Mr. Uvison. its owner and operator. lu.s hud BCtiu.1 knowledge ofthe pen register order and the subseciuem June 2S order ofthe magistrate judije compelling compliance with thut order. This Court's show cause order, which was personally s.-rveci on Mr. Levison, pro;-ided fimi.er nolice ofthe violation of those orders by La^•abit LLC. The government dearly.has suffered harrti in that it haii lost 20 days of infomation as arestili of non-compliance. 12. Uv:a.il LLC nuiy comply with the pen register order by simply allowing the FBI ,o insiall tlic pen reijister devise ami provide the FBI with the encOT""" !fUvabil LLC infomis the Court li will comply with ilworder, the govenmiem will not seek sanctions. If, • however, Mr. Levison informs the Court that Lavabit I.LC will not comply, the governmem requests that the Court impose afine ofS1000 per day, commencing July 17, 2013, uiUil Uvabil LLC fully compUcs v/ith the pen register order. 13. To the c.xicm that Uvabil LUC uikes the posiiion ihai tlic pen register Jces noi Case 1:13-sw-00522-CMH Document 36-21 Filed 02/24/16 Page 21 of 21 PageID# 712 case l;13-e!:-00297-TCB *SEALED* Documenl 11-12 Filed 09/20/13 Page 6ot 6PagelD# 97 REDACTED „,„„orizc Ihc protalon ..r.!.« cncrj-puon keys, govmn,.,,. to. ;^ked >he Com .0 a.,l,on,.. ,„c .ci,.urc ofth., infor,„n,ion ,o . mmn. Ti,l« 1S, United S«.« Cod., Sa:vio„ 2703. thus rendering ihis nrguincnl moot K, Tl.= Coun h»s tl.U proceeding. This plcadi„B 1'-^ t>e=n m«d undo seal. Tho IJnivod S™« will hund deliver ;> copy ofIhis plcndins ,0 Mr. Uvison at ,od»y= hearing. Respcctnilly submitted, Neil I!. MncBridc 'UniieciS'.aies Atlomey'^ficc Justin W. Willinms U.S. Attorney's Building 2100 Jiimicson Avenue Ak.xiJndrin, Virginiti22314 Phone: 703-299-3700 Case Document 36-22 Filed 02/24/16 'Page 1 of 19 Page D# 713 Case Document 11-13 Filed 09/20/13 Page 1 of 17 PagelD# 98 REDACTED EXHIBIT 13 Case Document 36-22 Filed 02/24/16 Page 2 of 19 Page D# 714 Case Document 11-13 Filed 09/20/13 Page 2 of 17 PageID# 99 RED 1 1 UNITED DISTRICT COURT EASTERN DISTRICT OF VIRGINIA 2 ALEXANDRIA DIVISION LO IN THE MATTER OF THE RPPLICATION OF THE UNITED 5 STATES OF FOR AN ORDER AUTHORIZING THE 6 IRSTALLRTION AND USE OF PEN AND TRACE 7 DEVICE ON AN ELECTRONIC 1:13 EC 297 EM- Alexandria, Virginia July 16, 2013 MAIL ACCOUNT 10:42 a.m. 8 9 i 10 TRANSCRIPT OF HEARING ll BEFORE THE HONORABLE CLAUDE M. HILTON 12 UNITED STATES DISTRICT JUDGE For the United States: James Trump, Esq. Andrew Peterson, Esq. 21 Brandon Van Grack, Esq. Michael Ben?nry, Esq. 22 For the Respondent: Ladar Levison, Respondent 23 Ceurt Reporter: Tracy L. Westfall, RPR, CMRS, CCR 24 Proceedings reported by machine shorthand, transcript produced by computer?aided transcription. Tracy L. westfali Case Document 36-22 Filed 02/24/16 Page 3 of 19 PageID# 715 Case 1213-60-00297-TCB Document 11-13 Filed 09/20/13 Page 3 Of 17 PagelD# {.11 100 UNDER SEAL REDACTED 8 THE CLERK: In Re: Case No. 1:13 EC 297. MR. TRUMP: Good morning, Judge. Jim Trump on behalf of the United States. With me is Andy Peterson, Brandon Van Greek from the United States Department of Justice, .3 Ben'Ary behind me, and Matt Braverman, special agent io: an FBI. COURT: All right. MR. LEVISON: Leda: Levison, the subject of the summons. THE COURT: All right. Mr. Trump. MR. TRUMP: Your Honor, we submitted our supplemental paper this morning describing the communication we?ve had with Lavabit, LLC, through Mr. Levison. And I think, very simply, we would like this Court to inquire of Mr. Levison whether he intends to comply with the pen register order which would require him to allow the FBI access to his server_to install a device which will extract data, filter that date, and provide that data to the FBI, and to provide the FBI with the keys to the extent there is information, included among within the body of information called for by the pen registe; order. As the Court is aware, and as we will provide with Mr. Levison, we obtained a search warrant this morning from Your Homo: for the same keys. ?Thus, to the extent there?s Tracy L. Weatfall Case Document 36-22 Filed 02/24/16 Page 4 of 19 Page D# 716 Case Document 11-13 Filed 09/20/13 Page 4 of 17 PagelD# 9 10 ll 101 UNDER SEAL any question as to whether Mr. Levison would be required to provide these keys, it's now subject both to the pen register order and the search warrant, the seizure warrant, That?s where we stand, Your Honor. If Mr. Levison agrees to comply with the order, we would hot seek any sanctions. We would ask that he be directed to forthwith make his servers available so the FBI can install that device and to extract the keys. If, however, he informs the Court he is not willing to comply with the order, we would ask the Court to impose sanctions. We suggested in our pleading a thousand dollars a day to be paid to the United States government until he complies. If he doesn?t comply with that sanction, then we would be back in court seeking additional sanctions or additional offenses. THE COURT: Levison. All right. Mr. MR. LEVISON: ?Good morning, Your Honor. I?m net sure what order I should make these in, but I would like to request a couple of things by motion. I'd like to move that all of the nonsensitive portions of the documents that were provided, everything except the account in question, he unsealed. I believe it's impor2aet for the industry and the people to understand what the government is requesting by demanding that I turn over these keys for the entire service. . westfal 3'3} 2.91.135. Case Document 36-22 Filed 02/24/16 Page 5 of 19 Page D# 717 Case Document 11-13 Filed 09/20/13 Page 5 of 17 PageiD# 102 3m REDACTED 2 THE COURT: All eight. What do you say to that, 2 Mr. Trump? Deal with the motions before I 3 NR. TRUMP: What Mr. Levison is trying to do, Your 4 Honor, is invite industry to come in and litigate as a surrogate 5 for him the issue of whether the keys are ,att and 6 parcel of the pen register order. And that?s one of the reasons we sought the search warrant, to make it clear, whether through 8 the search warrant or pen register order, he is required to 9 provide these keys. 10 We know he's been in contact with attorneys who also 11 represent industry groups and others who have litigated issues 12 like this in the WikiLeaks context and Others. But we woulo 13 object to unsealinq this matter because it's just Mr. 14 THE COURT: And they?ve done that in connection with 15 the issuance of a pen register? 16 MR. TRUMP: They have litigated privacy?related issues 17 in the context of process under 2703. I'm not sure not a pen 18 register, but with respect to 2703. 19 But we discussed this issue with Mr. Levison and his 20 counsel by confetehce call. We indicated that the only ?ete 21 that the government seeks is that which is required by the pen 22 register order. That it?s just the basic header to e-mail 23 traffic, sender, recipient, time, duration, that sort o? thing. 24 If Mr. Levison wants to object to pxovi?ing the keys, 25 he can certainly object to doing that and then we can proceed Tracy L. westfell Case Document 36-22 Filed 02/24/16 Page 6 of 19 Page D# 718 Case Document 11-13 Filed 09/20/13 Page 6 of 17 PagelD# PL O3 UNDER sear. ?i REDACTED from there, but I don?t think he's entitled to try to make this a public proceeding to invite others in to litigate those issues on his behalf. THE COURT: All right. Well, I believe that to be correct. I mean, this is a criminal investigation. w. it) register has been ordered and is here at issue, and any motion to unseal that will be denied. You said you had another motion, 1 believe? MR. LEVISON: Yeah. My issue is only with the SSL keys. So if that is litigated separately and that portion of the proceeding is unsealed, I'm comfortable with that. THE COURT: I don't understand what you?re saying, Separate proceedings. MR. LEVISON: Sorry. I have always agreed to the installation of the pen register device. 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. THE COURT: Well, didn?t my order already include that? MR. LEVISON: I do not belieVe so, sir. THE COURT: Did my initial order I don't recall at the moment. Did my initial order recall the devices with the inStallation of a pen register? MR. TRUMP: The pen register, as issued, just required all assistance, technical assistance, facilities, and 2 ?#11 irocy a. Case Document 36-22 Filed 02/24/16 Page 7 of 19 Page D# 719 Case Document 11-13 Filed 09/20/13 Page 7 0f 17 PagelD# Fl 104 UNDER SEAL REDACTED 6 information, to facilitate the pen register. 1" ibis morning the search warrant required THE COURT: Yeah, but the search warrant's a di ierent matter now. That?s not before me this morning. The only thing that's before me this morning is the pen register. MR. TRUMP: Correct. THE COURT: So as I understand it, my initial order ordered nothing but that the pen register be put in place. MR. TRUMP: And all technical assistance, information, and facilities necessary to implement the pen register. And it's our position that without the keys, the data from the pen register will be meaningless. So to facilitate the rotuai monitoring required by the pen register, the FBI also requires the keys. THE COURT: Well, that could be, but I don't know that I need I don't'know that I need to reach that because I've issued a search warrant for that. MR. TRUMP: Correct, Your Honor. That the to avoid litigating this issue, we asked-the Court to enter the seizure warrant. THE COURT: Well, what I'm saying is if he agrees that the pen register be established, and that the only thing he doesn't want to do in connection with the pen register in to give up the device or code MR. LEVISON: I've always maintained that. Tracy L. Weatfali Case Document 36-22 Filed 02/24/16 Page 8 of 19 Page D# 720 Case Document 11?13 Filed 09/20/13 Page 8 of 17 PagelD# (A J27. m5 REDACTED THE COURT: ?w so we've got no issue here. You're ready to do that? MR. LEVISON: I've been ready to do that since Agent Howard spoke to me the first time. THE COURT: All right. So that ends our MR. TRUMP: Well, then we have to inquire of? Mr. Levison whether he will produce the keys pursuant to the search warrant that Your Honor just signed. THE COURT: But 1 can't deal with that this morning, can MR. Well, it's the same issue. You could ask him, Your Honor. We can serve him with the warrant and ask him if he?s going to comply rather than MR. LEVISON: Your Honor, I've also been issued a subpoena demanding those same keys, which I brought with me in the event that we would have to address that subpoena. THE COURT: I don't know, Mt. Trump. I don?t think 1 want to get involved in asking him. You can talk with him and see whether he's going to produce them or not and let him tell you. But I don't think I ought to go asking what he?s going to do and what he?s not going to do because I can't take any action about it anyway. If he does not comply with the subpoena, there are remedies for that one way or another. MR. TRUMP: Well, the original pen register order was Txaoy L. ?esciali Case Document 36-22 Filed 02/24/16 Page 9 of 19 Page D# 721 Case Document 11-13 Filed 09/20/13 Page 9 of 17 PagelD# 106 UNDER SEAL REDACTED rh ollowed by a compulsion order from Judge Buchanan. Th 2 compulsion order required-the keys to be produced. 3 So, yes, part of the Show cause order is to require a ?4 4 compliance boch with the pen register order and the compulsion on order issued by Judge Buchanan. 0\ ?nd that order, which was attached to the show cause 7 order, states, "To the extent any information, facilities, or 8 technical assistance are under the control of Lavabit are needed g5: to provide the 581 with the data, Levabit shall 10 provide such information, facilities, or technical assistance 11 forthwith." .w-J ha MR. LEVISON: ?4 would object to that statement. 13 don't know if I'm wording this correctly, but what was in that 14 order to compel was a statement that was incorrect. 15 Agent Howard seemed to believe that I had t.e 16 to the e-mail content stored on our servers, which is 17 no: the case. I only have the keys that govern communications 18 into and out of the network, and those keys are used to secure 19 the traffic for all users, not just the user in question. 20 2 So the statement in that order compelling me to 21 stuff and Agent Howard stating that I have the ability to do 22 that is technically false or incorrect. There was never an 23 explicit demand that I turn over these keys. 24 THE COURT: 1 don't know what bearing that would havemean, I don't have a problem Judge Buchanan Tracy L. Westfall Case Document 36-22 Filed 02/24/16 Page 10 of 19 Page D# 722 Case Document 11-13 Filed 09/20/13 Page 10 of 17 Page D# 4 0% 50 107 UNDER SEAL REDACTED 3? issued an order in addition to mine, and I?m not sure I ought to be enforcing Judge Buchanan's order. My order, if he 5 ya that he will produce or allow the u: installation of the pen register, and in addition I have issoed a search warrant for the codes that you want, which I did this morning, that's been entered, it seems that this issue is over as far as I'm concerned except I need to see that he allows the pen regiSCer and complies with the subpoena. MR. TRUMP: CorreCt. THE COURT: If he doesn't comply if he doesn?t roomply with the subpoena, then that has I have to address -:hat. MR. TRUMP: Right. THE COURT: But right now there's nothing for me to address here unless he is not telling me correctly about the pen register. MR. TRUMP: Well, we can -- Your honor, if we can talk to Mr. Levison for five minutes, we can ask him whether he will homes the warrant that you just issued. MR. LEVISON: Before we do that, can I THE COURT: Well, what can I do about i: if he doesn't, if he tells you he's not going to? You?ve got the right to go out and search and get it. MR. TRUMP: Well, we can't get the information without his assistance. He's the only who Knows and has possession of Tracy L. Hestfull ?Fa-fu- Case Document 36-22 Filed 02/24/16 Page 11 of 19 Page D# 723 Case 52>. k) Document 11?13 . Filed 09/20/13 Page 11 of 17 PageID# 108 UNDER SEAL 1 REDACTED it. We can't take it from him involuntarily. MR. LEVISON: If I may, sir, my other THE COURT: Wait just a second. You're trying to get me ahead. You?re trying to get to deal with a contempt before there's any contempt, and 1 have a problem with that. MR. TRUMP: I'm trying to avoid contempt altogether, Your Honor. THE COURT: I know you are. And l?d love for you?all to get together and do that. I don?t want to deal with it either. But I don't think we can sit around and agree that there?s going to be a default and I will address it before it occurs. MR. TRUMP: I'm just trying to figure . whether there's going to be a default. We'll take care of that, Judge. THE COURT: You can. I t-ink the way we've got to do this and I'll listen to you. I'm cutting you= but I'll listen to you in a minute. The way we have to do this, the hearing that?s before me this morning on this issue of the pen register, that?s been resolved, or so he's told me. I don't know whether you want to continue this one week and see if he complies with that, guess would be prudent to do, or a few days for him to comply . with the pen register. Then we will wait and see what happen (I with the subpoena. Tracy Wescfail "3 "cgwhich I b. Case Document 36-22 Filed 02/24/16 Page 12 of 19 Page D# 724 Case Document 11-13 Filed 09/20/13 Page 12 of 17 PagelD# db. 109 UNDER SEAL REDACTED Because as far as my gen register order is concerned, he says he's qoing to comply with it. So that done with. The next issue will be whether or not he complies with the subpoena. And I don?t know and I don?t want to presume, and I don?t want him to represent to me what he intende to do when can very well go home and decide he's going to oo something different. When that warrant is served, we'll know what he?s going to do. I think we've got I don't see another way to do itl MR. TRUMP: That's fine, Your Honor. We will serve the warrant on him as soon as we conclude this hearing, and we'll find out whether he will provide the keys or not. THE COURT: Okay. How, did you want to say anything MR. LEVISON: Well, I mean, I've always maintained that all the government needs to do is contact me and set up an appointment to install that pen register. So 1 oon?t know why there has never been any confueion about my willingness to Z've only ever objected to the nsnell it. which secure any sensitive information going back and forth. Bot my motion, and I?m not sure if it's relevant or not because it deals more with the issue of the subpoena demanding the keys and for what will be the forthcoming search warrant, would be a continuance so that I can retain counsel to address OCR QC Case Document 36-22 Filed 02/24/16 Page 13 of 19 Page D# 725 Case Document 11-13 Filed 09/20/13 Page 13 of 17 PagelD# 110 UNDER SEAL l2 1 that particular issue. 2 THE COURT: Well, I mean, there's nothing before me 3 with that. I've issued the subpoena. Whatever with 4 that, that's ~u you're trying to get me to do what Mr. Trump 3 wanted to do and to arrange this beforehand. 6 HR. ?ell, I don't know if I have to apgear 7 before that grand jury right now and give the keys over or fee 8 arrest. I'm not a.lawyer so 1 don't understand the procedure. 9 THE COURT: I don't know either. You need to have 10 it would be wise to have a lawyer. 11 MR. LEVISON: Okay. 12 TEE COURT: I don't know what's going to happen. I 13 eon't know. They haven't served the warrant yet. 1 have no 14 idea. Don't know what's going to happen with it. You?ll just 15 have to figure that out, and it be wise to have a lawyer :0 do 16 it, I would think. 7 MR. LEVISOH: guees while I'm here i. regards to the 18 pen regiseer, would it be possible to request some sort of L0 external audit to ensure that your orders are followed to the 20 letter in terms of the information collected and preserved? 21 THE COURT: No. The law provides for those things, and 22 any other additional or extra monitoring you might want or think 23 is appropriate will be denied, if that?s what you?re requesting. 2; MR. LEVISON: Okay. I mean, it requests that the 25 government return to the Court records Tracy L. Weetfull OCR-GEECIEDVE Case Document 36-22 Filed 02/24/16 Page 14 of 19 Page D# 726 Case Document 11-13 Filed 09/20/13 Page 14 of 17 PagelD# p5 6 .Buchanan made 111 UNDER SEAL 1 .53 REDACTED THE COURT: You need to talk to a lawyer about what the law requires for the issuance of a-pen register. MR. LEVESON: They can handle that separateiy. That's fine. THE COURT: The law sets out what is done in that regard. Your lawyer can-fill you in if you want to know. MR. I've always been willing to accept the device. I just have some concern about ensuring that it?s used propesly. THE COURT: Should we continue this to some date to see that he complies with the pen register? ER. TRUMQ: We can, Your Honor. It's a moot without the keys. THE COURT: Well, that is a practical matter HR. TRUMP: That's a practical THE COURT: have got the right to go in and put on the: pen but I don't think it is a moot issue. mean, you?all says that he will do it. That's all that I've Now, the other business about ordering that, Judge an order that he's going to have to supply when you say is the codes to make the information useful. I don't know. I didn?t enter that order. 1 have trouble making that eonnection. I If you're going to ?a I don't know whether you want to Case Document 36-22 Filed 02/24/16 Page 15 of 19 Page D# 727 Case Document 11-13 Filed 09/20/13 Page 15 of 17 Page D# in} 112 UNDER SEAL. 14 REDACTED do something in front of Judge Buchanan or not. MR. LEVISON: You see, Judge, though that I've always been willing. VThey just didn't feel the need to set up an appointment. THE COURT: What do you want me to do with this case? You want me to continue it? You want me to say it's moot right now and just end it? MR. TRUMP: No. I think we can continue it? I don't know Mr. Levison's schedule. It can be done within hours of his return to Dallas. THE COURT: Of course he can. You want to continue it till a week from Friday? MR. TRUMP: Or a week from today. MR. LEVISON: I'm not available within hours of my return, but I can meet with you on Thursday. THE COURT: Let?s continue it a week from Friday. MR. TRUMP: A week from Friday. THE COURT: What date's that? The we THE CLERK: 26th. THE COURT: The 26th? MR. LEVISON: Acceptable to me. THE COURT: We'll continue it to the 26th, and that's for determining whether or not that pen register has been installed as you request. We can make it 10 o'clock. Tracy L. Westfall OCR-USGCIESVA Case Document 36-22 Filed 02/24/16 Page 16 of 19 Page D# 728 Case Document 11-13 Filed 09/20/13 Page 16 of 17 PagelD# 113 15 REDACTED 1 MR. LEVISON: I'll remember 10:00 instead of 10:30 this F0 time. t~3 in COURT: All right. Thank you. All right. Thank you~all. we'll adjeurn till tamerrow 5 warning at 9:30. ?3 roceedings concluded at 11:02 a.aracy L. Wescfali Case Document 36-22 Filed 02/24/16 Page 17 of 19 Page D# 729 Case Document 11-13 Filed 09/20/13 Page 17 of 17 PagelD# 114 - REDACTED 1 6 CERT I ION he} 3 I certify, this 17th day of September 2013; that the .15. '7 fan Foregoing is a correct from the record of in the above?entitled matter he the bese of my ability. Wot/meg 8 'Fracy Westfa?fz REES Tracy L. West-fall. Case Document 36-22 Filed 02/24/16 Page 18 of 19 Page D# 730 Case Document 11-14 Filed 09/20/13 Page 1 of 2 PagelD# 115 REDACTED EXHIBIT 14 Case Document 36-22 Filed 02/24/16 Page 19 of 19 PageID# 731 Case Document 11?14 Filed 09/20/13 Page 2 of 2 Page D# 116 REDACTED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIL Alexandria Division IN THE MATTER OF THE OF THE UNITED STATES AUTHORIZING THE USE OF A PEN AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT - Criminal NO. This matter comes before the Court on the Government's Motion that: Ladar Levinson, the owner and operator of Lavabit, LLC Show cause a to why Lavabit, LLC has failed to comgly with the Court's Order of June 28, 2013 and why this Court should.not hold Mr. Levinson and Lavabit, LLC in contempt 1, and Ladar Levinson? oral Motion To Unseal. For the reasons stated from the bench, it is hereby ORDERED that Ladar Levinson's Motion To Unseal is DENIED and this matter is continued to Friday, July 26, 2013 at 10:00 a.m. for iurther proceedings. k# . Claude M. Hilton United States District Judge Alexandria, vi: July /5 2013 Case Document 36-23 Filed 02/24/16 Page 1 of 18 Page D# 732 Case Document 11-15 Filed 09/20/13 Page 1 of 11 PagelD# 117 EXHIBIT 15 Case Document 36-23 Filed 02/24/16 Page 2 of 18 Page D# 733 Case Document 11?15 Filed 09/20/13 Page 2 of 11 PagelD# 118 REDACTED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE FILED UNDER SEAL . a APPLICATION orr- THE UNITED . STATES AUTHORIZING THEPEN No. 133130297 . 1a., MD TRACE DEVICE ON AN 4 . ELECTRONIC MAIL ACCOUNT IN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION ASSOCIATED WITH No. HAT IS STORE-D AND CONTROLLED AT PREMISES CONTROLLED BY LAVABIT LLC In re Grand Jury No. 13?1 MOTION TO QUASH SUBPOENA AND SEARCH WARRANT AND MEMORANDUM OF LAW IN SUPPORT OF MOTION Lavabit LLC (?'Lavabit?) and Mr. Ladar Levinson (?Mn Lovinson?) move this Court to quash the grand jury subpoena and search and seizure warrant served on them by the Federal Bureau of Investigation and the Office of the United States Attorney {collectively BACKGROUND Lavabit is an email service provider. As such, Lavabit?s business model focuses on providing private and secure email accounts to its customers. ?Lavabit uses various methods, including secured socket layers to protect its users? privacy. Lavabit maintains an Case Document 36-23 Filed 02/24/16 Page 3 of 18 Page D# 734 Case Document 11-15 Filed 09/20/13 Page 3 of 11 Page D# 119 key, which may be used by authorized users data and communications from its server (?Master Key?). The Government has commanded Lavabit, by a subpoena1 and a. search and seizure warrant, to produce the keys and SSL keys used by levabitcom in order to access and communications and data stored in one speci?c email address -(?Lavabit Subpoena and Warrant?). ARGUMENT If the Government'gains access to Lavabit?e Master Key, it will have unlimited access to not only?(?Email Account?), but all of the communications and data stored in each of Lavabit?s 400,000 email accounts. None of these other users? email accounts are at issue in this matter. However, production of the Master Key will compromise the security of the users. While Lavabit is willing to cooperate with the Government regarding the Email Account, Lavabit has a duty to maintain the security for the rest of its customers? accounts. The Lavabit Subpoena and Warrant are not narrowly tailored to seek only data and communications relating to the Email Account in question. As a result, the Lavabit Subpoena and Warrant are unreasonable under the Fourth Amendment. a. The Lavabit Subpoena and Warrant Essentially Amounts to a General Warrant. 1 The grand jury subpoena not only commanded Mr. Levinson to appear before this Court on July 16, 2013, but also to bring Lavabit?s keys. Mr. Levinson's subpoena to appear before the grand jury was but the continues to seek he keys. Ltwabit is only seeking to quash the Court?s command that Mr. Levinszn provide the keys. Case Document 36-23 Filed 02/24/16 Page 4 of 18 Page? D# 735 Case Document 11-15 Filed 09/20/13 Page 4 of 11 Page D# 120 REDACTED Though the Lavabit Subpoena and Warrant super?cially appears to be narrowly tailored, in reality, it operates as a general warrant by giving the Government access to evmy Lavabit user?s communications and data. It is not what the Lavabit Subpoena and Warrant defines as the boundaries for the search, but the method of providing access for the search which amounts to a general warrant. It is axiomatic that the Fourth Amendment prohibits general warrants. - Andresen 22. Maryland, 4?27 463, 480 (1976). Indeed ?it. is history that indiscriminate searches and seizures conducted under the authority of warrants? were the immediate evils that motivated the framing and adoption of the Fourth Amendment.? Payton v. New York, 445' US. 573, 583 (1980) (footnote omitted). To avoid general warrants, the Fourth Amendment requires that ?the piaco to be searched? and "the persons or things to be seized" be described with partimilarity. United States v. Moore, '77 5 F. Supp. 2d 882, 898 (ED. Va. 2011) (quoting United States v. Grubbs, 54-7 0.8. 90, 97 (2006)). The Fourth Amendment?s particularity requirement is meant to ?prevent? the seizure of one thing under a warrant describing another.? Andresert, 427 US. at 480. This is precisely the concern with the Lavabit Subpoena and Warrant and, in this circumstance, the particularity reduirement not protect Lavabit. By turning over the Master Key, the Government will have the ability to search each and every ?place,? ?person [and] thing" on Lava?bit?s network. Case Document 36-23 Filed 02/24/16 Page 5 of 18 Page D# 736 Case Document 11?15 Filed 09/20/13 Page 5 of 11 PagelD# 121 The Lavabit Subpoena and Warrant allows the Government-to do a .?general, exploratory rummaging" through any Lavabit user account. See id. (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)) {describing the issue with general wan-ants ?is not that of intrusion per se, but of a general, exploratory rummaging in a person?s belongings?). Though the Lavabit subpoena and Warrant is facially limited to the Email'Addre-ss, the Government would be able to seize communications, data and information from any account once it is given the Master Key. There is nothing other than the ?discretion of the officer executing the . warrant? to prevcnt an invasion of other Lavabit user?s accounts and private emails. See id. at 4912 (quoting Stanford v. Texas, 379 0.8. 476, 485 (1965)) [explaining that the purpose of the particularity requirement of the Fourth Amendment is to ensure, with regards to what is taken that, ?nothing is left to the discretion of the of?cer executing the warrant?) (internal citation omitted). Lavabit has no assurance that any searches conducted utilizing the Master Key will be limited solely to the Email Account. See Groh Ramirez, 5540 US. 551, 56162 (2004) (citing Camera 1). Municipal Court of City and County of San Francisco, 387 11.8. 523, 532 (1967)) (noting that a particular warrant is to provide individuals with assurance ?of the lawful authority of the executing of?cer, his need to search, and the limits of his p0Wcr to search) (emphasis added). Lavabit has a duty to its customers to protect their accounts from the possibility or unlawful intrusions by third parties, including government entities. Case Document 36-23 Filed 02/24/16 Page 6 of 18 Page D# 737 Case Document 11~15 Filed 09/20/13 Page 6 of 11 PagelD# 122 REDACTED As the Lavabit Subpoena and Warrant are currently framed they are invalid as they operate as a general warrant, allowing the Government to search individual users not subjection to this suit: without; limit. 13. The Lavabit Subpoena and Warrant Seeks Information that Is Not Material to the Investigation. Because of the breadth of Warrant and Subpoena, the Government will be given access to data and communications that are wholly unrelated to the suit. 0 The Government, by commanding keys, is acquiring access to 400,000 user?s private accounts in order to gain information about one individual. 18 2703(d) states that a court order may be issued for information ?relevant and material to an ongoing criminal investigation.? However, the Government will be given unlimited access, through the Master Key, to several hundred thousand user's information, all ol?wbo are not ?material? to the investigation. Id. Additionally, the Government has no probable cause to gain access to the other users accounts ?The Fourth that a warrant be no broader than the probable cause on which it is baSC-d~" Moore, 775 F. Supp. 2d at 897 (quoting United States v. Hurw?z, 459 F.3d 463, 473 (4 Lb Cir. 2006)). Probable cause here is based on the activities of the individual linked to the Email Address. Other Lavabit users would be severely impacted by the Government?s access to the Master Key and have not been accused of wrongdoing or criminal activity in relation to this suit. Their privacy interests should not suffer because of the alleged misdeeds of another Lavabit user. Case Document 36-23 Filed 02/24/16 Page 7 of 18 Page D# 738 Case Document 11?15 Filed 09/20/13 Page 7 Of 11 PagelD# 123 REDACTED c. Compliance with Lavablt Subpoena and Warrant Would Cause an Undue Burden. As a non-party and uhwilling participant to this suit, Lavabit has already incurred legal fees and other costs in order to Comply with Lhe Court?s orders. Further compliance, by turning over the Master Key and granting the Governmem access to its entire network, would be unduly burdensome. See 18 U.S.C. 2703M) [stating that ?the service provider may {move to] quash or modify {an} order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider?) (emphasis added). The recent case of In re Application of the U.-S. for an Order Pursuant to 1 8 US. C. 2703(d) (?Twitter-?1 addresses similar issues. 830 F. Supp. 2d 114 (ED. Va. 2011). In that case, the Petitioners failed to allege ?a personal injury oognizable by the Fourth Amanclmem.? Id. at 138. However, Lavablt?s circumstances are distinguishable. The Government, in pursuit of information date and communications the Email Address, has caused and will oontinue to cause injury to Lavabit. Not only has Lavabit expended a great deal of time and money in attempting to cooperate with the: Government thus for, but, Lavabit will pay the ultimate price?vathc loss of its customers? trust and business?should the Court require that the Master Key be turned over. Lavabit?s business, which is foundodion the preservation of privacy, could be d?scroycd if it is required to produce its Master Key. 01 Case Document 36-23 Filed 02/24/16 Page 8 of 18 Page D# 739 Case Document 11-15 Filed 09/20/13 Page 8 of 11 PagelD# 124 REDACTED Lavabit- is also a fundamentally different entity than Twitter, the business at issue in Twitter. The Twitter Terms of Service Speci?cally allowed user information to be disseminated. Id. at 139. Indeed, the very purpose of Twitter is for users to publically post their musings and. beliefs on the Internet. In contrast, Lavabit is dedicated to keeping its user?s information private and secure. Additionally, the order in Twitter did not seek ?content information? from Twitter users, as is being sought here. Id. The Government?s request for Lavabit?s Master lief;t gives it-aceess to date. and communications from 400,000 ernail seem-e accounts, which is much more sensitive information that at issue in the Twitter. The Government is attempting, in complete disregard of the Fourth Amendment, to penetrate a system that was founded for the sole purpose of - privacy. See Katz United States, 389 US. 347, 360 (1967) {stating that ?the touchstone of Fourth Amendment analysis is Whether a person has a constitudonally protected reasonable expectation of privacy?) (internal citations omitted). For Lavabit to gra oi: the Government unlimited access to every one of its user?s accounts would be to disavow its dut},t to its users and the principals upon which it was fetindecl. Lavabit?s service will be rendered devoid of economic value if the Government is granted access to its secure network. The Government does not have any proper basis to request that Lavabit blindly produce its Master Key and subject all of its users to invasion of privacy. Moreover, the Master Key itself is an developed and owned by Lovabit. As such it is valuable proprietary information and Lavabit has a 7 Case Document 36-23 Filed 02/24/16 Page 9 of 18 Page D# 740 Case Document 11-15 Filed 09/20/13 Page 9 0f 11 PagelD# 125 REDACTED reasonable expectation in protecting it. Because Lavabit has a reasonable expectaticm privacy fer its Master Key, the Lavabit Subpoena and Warrant violate the'P?om?tll Amendment. See Twitter, 830 F. Supp. 2d at 3.41 (citing United States v. Calandra, 414 ?1.55. 338, 346 (1974)) (noting ?The grand juxy power to invade a legitimate privacy interest protected, by the Fuurth Amendment? and that ?a grand jl?n'y?s subpoe.na.;.wi11 be disallowed if it is far too sweeping in its terms to under the Fourth CONCLUSION For the foregoing reasons, Lavabit and Mr. Levinson respectfully move this Court to quash the search and seizure warrant and grand jury subpoena. Further, Lavabit and Mr. Levinson request that this Court direct: that Lavabit does not have to produce its Master?Kcy. Alternatively, Lavabit and Mr. Levinson request that they be given an opportunity to revoke thecurrent key and reissue a new key at the Government?s expense. bastiy, Lavabit and Mr. Levinson request that, if they is required to produce the Master Key, that they be reimbursed for its costs which were directly incurred in producing the Master Key, pursuant to 18 U.S.C. 2706. LAVABIT LLC By Counsel 11, Bron-fey 86 int-3111? PLLC 110/3637 Main S't'z?cct, Suite 201 Fairfax, Virginia 22030 I Jce?e Bi Case 1:13- - - sw 00522 CMH Document 36-23 Filed 02/24/16 Page 10 of 18 Page D# 741 Case Document 11-15 Filed 09/20/13 Page 10 of 11 PagelD# 126 REDACTED (703) 229?0335 'l?clephonc (703) 537?0780 Facsimile jbinnal@bblawoniine.c0m Counsel for Lava/2i! LLC 9 Ca - - - . se 1.13 sw 00522-CMH Document 36-23 Flled 02/24/16 Page 11 of 18 Page D# 742 Case Document 11-15 Filed 09/20/13 Page 11 of 11 PagelD# 127 REDACTED Certi?cate uf Service - I certify that on this?i clay of July, 2013, this Motion to Quash Subpoena and Search Warrant and Memorandum of Law in Support was hand delivered to the person at the addresses listed below: United States Attorney?s Office Eastern District of Virginia 2100 Jamicson Avenue Alexandria VA 2231*} A - R. grungy 10 Case Document 36-23 Filed 02/24/16 Page 12 031% 316%? #3 ent11?16 Filed 09120113 Page 0 Case SEALED Docum128 REDACTED EXHIBIT 16 Cas - . 1 13 sw 00522 CMH Document 36-23 Flled 02/24/16 Page 13 of 18 Page D# 744 Case Document 11?16 Filed 09/20/13 Page 2 of 13 PagelD# - 129 REDA CTED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria v: 3. A I IN THE MATTER OF THE FILED UNDER SEAL Wm? APPLICATION OF THE UNITED STATES AUTHORIZING THE USE OF A PEN No. AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT IN THE MATTER OF THE AND SEIZURE OF INFORMATION WITH - No. HAT IS STORED AND CONTROLLED A'l? PREMISES CONTROLLED BY LLC In re Grand Jury No. 13.1 MOTION FOR UNSEALING OF SEALED COURT RECORDS AND REMOVAL OF ORDER AND MEMORANDUM OF LAW IN SUPPORT OF MOTION Lava?oit, LLC (?Lavabit?) and Mr. Ladeu' Levinson Lovinson?) ?Movan'ts?) move this Court to unseat} the court records concerning the United States: government?s attempt to obtain certain keys and Hit the non-disclosure order issued to Mr. Levinson. Specifically, Movants request the unsealing of all orders and documents ?ied in this matter before the Court?s issuance of the Judy 16, 2013 Swain-g: Order (?Sealing Order?); all orders and documents filed in this matter guitar the issuance of the Soaking Order; all grand jury subpoenas and search and seizure warrants issued before or after issuance of the Scaling Order; and (4-) all documents ?led in Case 1: - . 13 sw 00522 CMH Document 36-23 Filed 02/24/16 Page 14 of 18 Pa e D# 745 Case Document 11-16 Filed 09/20/13 Page 3 of 13 agelD# 130 RED ACT connection ?with such orders or requests for such orders (collectively, the ?sealed documents"). The Sealing Order is attached as Exhibit A. Movunts request that all of the sealed documents be unsealed and made public as quickly as possible, with only those redactions necessary to secure information that the Court deems, after review, to be properly withheld. BACKGROUND Lavabit was formed in 2004 as a secure and email service provider. To ensure security, Lttvabit employs multiple schemes using complex access keys. Today, it provides email service to roughly 400,000 . users worldwide. Lavabit?s corporate philosophy is user anonymity and privacy. l..s.vebit employs secure socket layers to ensure the privacy of Lavabit?s subscribers through Lavabit possesses a master key to facilitate the private communications of its users. On July 16,2013, this Court entered an Order pursuant to 18 27050)), directing Movants to disclose all information necessary to communications sent to or from and data stored or otherwise associated with the Lavabit cemail account_ including SSL keys (the ?Lewabit Order?). The Lavebit Order is attached as Exhibit B. The Lavabit Order precludes the Movants from notifying any person of the search and seizure warrant, or the Court's Order in issuance thereof, except that Lavabit was permitted to disclose the search warrant to an attorney for legal advice. ARGUMENT Case - - 1 13 sw 00522-CMH Document 36-23 Filed 02/24/16 Page 15 of 18 Pa e D# Case Documer?t 1116 Filed 09/20/13 Page 4 of 13%) 7 6 1 1 agelD In criminal trials there is a common law presumption of access to judicial the sealed documents in the present case. Despite the government?s legitimate interests, it cannot meet its burden and overcome this. presumption because it has not explored reasonable alternatives. Furthermore, the government?s notice preclusion order constitutes a content? based restriction on free speech by prohibiting public discussion of an entire topic based on its subject matter. I. THE FIRST AMENDMENT AND ORDERS The Stored Communications Act authorizes notice preclusion to any person of a 2705(1)) orde-r?s existence, but oniy if the Court has reason to believe that noti?cation will result in (1) endangering. the life or physical safety of an individual; (2) flight from prosecution; (3) destruction or tampering with evidence; intimidating of potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial. Despite this statutory authority, the 2705(1)) gag order infringes upon freedom of speech Under the First Amendment, and should be subjected to constitutional case law. The most searching form of review, ?strict scrutiny?, is implicated when there is .a content-based restriction on free speech. RA. V. v. City ofSt. Paul, mm, 505 US. 377, 403 (1992). Such a restriction must be necessary to seWo a compelling, snare interest and narrowly drawn to achieve that end. Id. The Lavabit Order's non-disclosure provision is a content?based restriction that is not narrowiy tailored to achieve a compelling state int-crest. Case Docu ent 36 23 Flled 02/24/16 Page 16 of 18 Page D# 747 Case Document 11?16 Filed 09/20/13 Page 5 of 13 PagelD# - 132 REDACTED a; The Lavabit Order Regulates Mr. Levinson?s Free Speech The notice preclusion order at issue here limits Mr. Levinson's speech in that he is not allowed to disclose the existence of the 2705(b) order, or the Underlying investigation to any other person including any other Lavabit subscriber. This naked prohibition against disclosure can fairly be characterized as a regulation of pure speech. Bartnic/ri v. Vopper, 532 US. - 514, 526 (2001). A regulation that limits the time, place, or manner of speech is permissible if it serves a significant; governmental interest and provides ample alternative channels for communication. See Cox U. New Hampshire, 312 US. 569, 578 (1941) (explaining that requiring 3 permit for parades was aimed at policing the streets rather than restraining peaceful picketingli However, a valid time, place; and manner restriction cannot be based on the content or subject matter of the speech. Consol. Edison Co. of New York U. Pub. Sew. Comm?n ofNetu l/or/c, 447 U.S. 530, 536 (1980). The gag order in the present case is content~based because it precludes speech on an entire topic, namely the search and seizure warrant and the underlying criminal investigation. See id. at 587 (?The First Amendment?s hostility to content?based regulation prohibition of public discussion of an entire topic?). While the nondisclosure provision may be viewpoint neutral on its face, it nevertheless functions as a content?based restriction because it closes off an ?entire topic" from public discourse. It is true that the government has a compelling interest in maintaining the integrity of its criminal investigation However, Mr. Case Document 36-23 Filed 02/24/16 Page 17 of 18 Page D# 748 Case Document 11-16 Filed 09/20/13 Page 6 of 13 PagelD# 133 REDACTED Levinson has been unjustly restrained from contacting Lavabit subscribers who could be subjected to government. surveillance if Mr. Levinson were foroecl to comply the lovabit Order. Lavabit's value is embodied [in its complex keys, which provide its subscribers with privacy and security. Mr. . Levinson has been unwilling to turn over these valuable keys because they grant access to his ehtire network. In order to protect Lavabit, which caters to thousaqu of international clients, Mr. Levinson needs some ability to voice his concerns, garner support for his cause, and take precautionary steps to ensure that Lavabit remains a truly secure network. b. The Lavabit Order Constitutes A Prior Restraint 0n Speech Besides restricting content, the 2705(b) non?disclosure order forces a prior restraint on speech. It is well settled that an ordinance, which makes the enjoyment of Constitutional guarantees contingent upon the uncontrolled will of an of?cial, is a. prior restraint of those freedoms. Shuttlesworth v. Bimzingham, 394 0.8. 147, 150451 (1969); Stout) v. City of Barley, 355 U.S. 3'13, 322- (1958). By de?nition, a prior restraint is an immediate and irreversible sanction because it ?freezes? speech. Nebraska Press Ass?n 12. Stuart, 427 vs. 539, 559 (1976). In the present case, the Larvabit Order, cnjoins Mr. chinson from discus-sing these proceedings with any other person. The effecr is an immediate freeze on speech. The Supreme Court of the United States has interpreted the First Amendment as providing greater protection irom prior restraints. Alexander 1). United States, 509 1.3.8. 544 (1993). Prior restraints carry a heavy burden for Case Document 36-23 Filed 02/24/16 Page 18 of 18 Page D# 749 Case Document 11?16 Filed 09/20/13 Page 7 of 13 PagelD# 134 REDACTED justification, with a presumption against constitutional validity. Capital Cities Media, Inc. v. ?I?oole, 463 US. 1303, 1305 (1983); Carroll 2). Princess Anne, 393 US. 175, 181 (1968); Bantam Books, Inc. v. Sullivan, 372 US. 58, 70 (.1963). Here, the government and the Court believe that notification of the eeorch warrant?s existence will seriously jeopardize the investigation, bygiving targets an opportunity to flee or continue ?ight from prosecution, will destroy or tamper with evidence, change patterns of behavior, or notify confederates. See Levabit Order. However, the government?s interest in the integrity of its investigation does not automatically supersede First Amendment rights. See Landmark Communications, Inc. v. Virginia, 485 U.S. 829, 841 {1978) {holding the con?dentiality of judicial review insuf?cient to ju'stil?y encroachment on the freedom of speech). in the present case, the government has a legitimate interest in tracking the account However, if Lavabit were forced to surrender its master key, the government would have access not only to this account, but also every Lavabit account. Without the ability to disclose access to users? data, public debate about the scope and justification for this secret investigatozy tool will be sti?ed. Moreover, innocent Lax/obit subscribers will not know that Lavabit?e security devices have been compromised. Therefore the non?disclosure order should be lifted to provide Mr. Levinson the ability to ensure the value and integrity of Lavabit for his other subscribers. Case - - 522 CMH Document 36-24 Filed 02/24/16 Page 1 of 18 PageID# 750 Case Document 11?16 Filed 09/20/13 Page 8 of 13 PagelD# 135 REDACTED THE LAW, SUPPORTS THE RIGHT OF PUBLIC ACCESS TO THE SEALED DOCUMENTS Despite any statutoz'y authority, Lavabit Order and all related documents were tilch under seal. The sealing of judicial records imposes a limitcm the public?s right of access, which derives from two sources, the First Amendment and the common law. Va. Dep?t of State Police y. Wash. Post, 386 F.3d 567, 575 [4th Cir. 2004); See Richmond Natl/spapsrs, Inc. v. Wrginia, 448 US. 555, 580 (press and public have a First Amendment right of a criminal trial); Press?Enterprisebo. v. Superior Court, 47 8 US. l, 2 (1986) (right of access to prcliminmy hearing and transcript). a. The Common Law Right Of Access Attaches To The Lavabtt Order For a right of access to a document to exist undcr either the First Amendment or the common is the document must be a ?judicial record.? Baltimore Sun Co. v. 886 F.2d 60, 63?64 (4th cu. 1989). Although the Fourth Circuit Court of Appeals has never formally de?ned ?judicial record?, it held that 2703(d) orders and subsequent orders issued by are judicial records because they are judicially created. In re U. S. foron Order Pursuant to 18 (1.3. C. Section 2703((1), 707 F.3d 283, 290 (4th Cir. 2013) (?Witter?). The 1% 2705(b) order in the present case was issued pursuant to 2703((1) and can properly be dc?ncd as a judicial record. Although the Fourth Circuit has held there is no First right to access 2??03(d) orders, it held that the common law presumption of access attaches to such Twitter, 707 F.3d at 291. Cas - . 1 13 sw 00522 CMH Document 36-24 Filed 02/24/16 Page 2 of 18 Page D# 751 Case Document 11-16 Filed 09/20/13 Page 9 of 13 PagelD# 136 . REDACTED The underlying investigation in Twitter, involved a 2703(d) order, which directed Twitter to provide personal infomiation, account information, records, financial data, dircct messages to and from cmaii addresses, and Protocol sadness-cs {or eight of its subscribers. In re: 2703(d) Order, 78?? F. Supp. 2d 430, 435 (ED. Va. 2011). Citing tho-importance oi? invostigatory secrecy integrity, the court in that case denied the. petitioners Motion to Unscal, ?nding no First Amendment or common low right to access. Id. at 443. Unlike ?I?wi'ttcr, whose users publish comments on a public fomm, subscribch use Lavsbit for its features, which ensure security and privacy. In Twitter there was no threat that any user would be subject to surveillance other than the eight users of interest to the government. However, a primary concern in this case is that the Lavabit Order provides the government with access to every Lavabit account. Although the secrecy of SCA investigations is a compelling government interest, the hundreds of thousands of Lavabit subscribers that would be. compromised by the Lavabit Order are not the subjects of any justi?ed government investigation. Therefore access to those private accounts should not be treated as a simch corollary to an order requesting information on one criminal subject. The public should have access to those orders because their constitutes a scriousiy concerning expansion?of grand jury subpoena power. To ovcrco-mc the common law presumption of access; a court must find that there is ?1 ?signi?cant countervailing interest? in support of scaling. that. Case 1:13-s - - . 00522 CMH Document 36-24 Flled 02/24/16 Page 3 of 18 PageID# 752 Case Document 11-16 09/20/13, Page 10 of 13 PageID# 137 REDACTED 'outweighs?tlie public's interest in openness. Twitter, 707 F.3d at 293. Under the common law, the decision to seal or grant access to warrant papers is within the discretion of the judicial of?cer who issued the warrant. Media General Operations, Inc. v. Buchanan, 417 F.3d. 424, 429 (4th Cir. 2005}. if a judicial of?cer detemiines that full public access is not appropriate, she must consider alternatiVes to sealing, which may include granting some public access or releasing a redacted version of the documents. Id. In ?(Witter the court explained that because the magistrate judge individually considered the documents, and redacted and unsealed certain documents, he satis?ed the procedural requirements for sealing. Twitter, 707 F.3d at 294. HoweVer, in the present case, there is no evidence that alternatives were considered, that documents were redacted, or that any documents were unsealed. Once the presumption or access attaches, a court cannot seal documents or records indefinitely unless the government demonstrates that some signi?cant interest heavily outweighs the public interest in openness. Wash. Post, 386 F.3d at 575. Despite the government?s . concerns, diets are reasonable alternatives to an absolute seal that must be explored in order to ensure the integrity of this investigation. . b. There Is No Statutory Authority To Seal The 2705M) Documents There are no provisions in the SCA that mention the sealing of orders or other documents. In contrast, the Pen [Trap Statute authorizes electronic surveillance and directs that pen/ trap orders be sealed ?until odierwisc -w W- Case Document 36-24 Filed 02/24/16 Page 4 of 18 Page D# 753 Case Document 11-16 Filed 09/20/13 Page 11 of 13 PagelD# 138 REDACTED ordered by the court?. 18 U.S.C. 3121-27. Similarly, the Wiretap Act, another surveillance statute, expressly directs that applications and Orders granted under its provisions be scaled. 18 U.S.C. 2518(8)(b). The failure to provide for scaling is. not a congressional oversight. Rather, Congress I has speci?cally provided for sealing provisions when it desired. Where Congress includes particular language in one section of a statute but omits it in another, it is generally assumed that Congress nets intentionally. Keene Corp. v. United States, 508 U.S. 200, 208 (1993). Therefore, there is no statutory basis for sealing no application or order under the SCA that would overcome the common law right to access. 0. Privacy Concerns DemandA Common Law Public Right 01? Access To The Sealed Documents The I and the ensuing mass surveillance scandal have sparked an intense national and international debate about government surveillance, privacy rights and other traditional freedoms. It? is concerning that suppressing Mr. Lovinson's speech and pushing its subpoena power to the limits, the government?s actions may be viewed as accomplishing another unfounded secret infringement on personal privacy. A major concern is that this could cause people worldwide to abandon American service providers in favor of foreign because the United States cannot be trusted to regard It: is in the best interests of the tviovnnt?s and the government that the documents in this matter not be 1 See Dan Roberts, NSA Snooping: Obama Under Pressure as Senator Denounces ?Act of Yreason?. The Guardian, June 10, 201-3, http: [2013 [jun 10 Case 1:13-sw-00522-CM - Document 36-24 Flled 02/24/16 Page 5 of 18 Page D# 754 Case Document 11-16 Filed 09/20/13 Page 12 of 13 Page D# 139 REDACTED shrouded in secrecy and used to further unjustified surveillance activities and to suppress public debate. CONCLUSION For the foregoing reasons, Lavabit respectfully moves this Court to unseat the. court records concerning the United States government?s attempt to obtain. certain keys and lift the non?disclosure order issued on Mr. - Lovinson. Alternatively, Lavabit requests that all of the scaled documents be redacted to secure only the information that the Court deems, after review, to be properly withheld. LAVABIT LLC By Counsel -m Jee or: 79292 Br toy 65 Elm?: LLC 1 87 Main Street, Suite 201 F: rfax, Virginia 22030 (703) {229?0335 Telephone (703) 537?0780? Facsimile jbinnall@bblawon1inc.com Cou nsel for Lav/obit LLC 11 Case Document 36-24 Filed 02/24/16 Page 6 of 18 Page D# 755 Case Document 11-16 Filed 09/20/13 Page 13 of 13 PagelD# 140 REDACTED Qgrti?cate. of Service 6% I certify that on this day of July, 2013, this Motion For Unsea?ng 01' Sealed Court Records Andy Removal Of NomDisclosure Order And Memorandum Of Law In Support was hand delivered to the person at the addresses listed below: ta tea ttomcy 9 Eastern District of Virginia 2100 Jamicson Avenue Aicxandria, VA 22314 Case Document 36-24 Filed 02/24/16 Page 7 of 18 Page D# 756 Document 11-17 Filed 09/20/13 Page 1 of 28 PagelD# Case 1:13-ec-00297 141 REDACTED EXHIBIT 17 Case 1:13-sw- - 00522 CMH Document 36-24 Filed 02/24/16 Page 8 of 18 PageID# 757 Case Document 11-17 Filed 09/20/13 Page 2 of 28 Page D# 142 "jt l?N THI: UNITED STATES DISTRICT COURT REDACTE EASTERN DISTRICT OF VIRGINIA I -. I ALEXANDRIA DIVISION IN THE MATTER OFTHE NO. 1:13 EC 297 APPLICATION OF THE UNITED STATES THE USE OF A PEN AND TRACE ON AN ELECTRONIC MAIL ACCOUNT MATTER OF THE SEARCH NO. 1:13 SW 522 AND SEIZURE 0t" I A 'l?HA'l" IS STORED AND CONTROLLED AT PREMISES CONTROLLED BY LAVABIT LLC IN SUBPOENA NO. 134 RESPONSE OF THE UNITED STATES IN TO MOTION TO UASH AND MOTION TO FOR UNSEALING OF SEALED COURT RECORDS INTRODUCTION This Court has ordered Lavabit, LLC to provide the government with the technieai assisumee necessary to implement and use a pen register and trap and trace device ("pen-trap device"). A full month after that order, and after an order to compel compliance, a gravid jury subpoena, and a search warrant for that technical assistance. Latvabit has still no: complied. Repeated efforts to seek that technical assistance from owner have failed. While the government continues to work toward a mutually acceptable solution, at present there not appear to be a way to implemet?t't this Case Document 36-24 Filed 02/24/16 Page 9 of 18 Page D# 758 Case Document 11-17 Filed 09/20/13 Page 3 of 28 PagelD# 143 Court?s order, as well as to comply with the subpoena and scorch warrant, requiring Lavabit to disclose an key to the government. This Court?s orders, search warrant, and the grand jury subpoena all compel that result, and they are all lawful. Accordingly, Lovabit?s motion to quash the search warrant and subpoena should be denied. lovabit and its owner have also moved to unscal all records in this matter and lift the order issued by the Court preventing them from disclosing a search tvarrant issued in this case. Because public discussion of these records would alct?t't?he target and jeopardize an active criminal investigation. the government?s compelling interest in maintaining the secrecy and integrity of that investigation outweighs any public tight of access to, or interest". in publicly discussing, those records, and this motion should also be denied. TECHNICAL BACKGROUND Pen registers and trap and trace (lattices To investigate internet communications, Congress has permitted law enforcement to employ two surveillance techniques?the pen register and the trap and trace device?- tltat permit law enforcement to loam information about an individual?s communications. See 18 3121-27 Act?). These techniques, collectively known as a ?port-trap," pcm?t it law enforcement to learn facts about c-mails and other communications as they are not to obtain their content. Sec. United States Forrester, 512 500, 50943 (9th Cir. 2008) (upholding government?s use of a pen- trap that ?enabled the government to learn the to/t?rom addresses of Alba's c~mail 1'0 Case Document 36-24 Filed 02/24/16 Page 10 of 18 Page D# 759 Case Document 11?17 Filed 09/20/13 Page 4 of 28 PagelD# 144 I REDACTE 1) messages, the addresses of the websites that Alba visited and the total volume of information sent to or from his The Act ?unambiguously authorizefs] the use of pen registers and trap and trace devices on c?mail accounts.? In Matter of Application ofU.S. Far an Order Authorizing the Installation Use of a Pen Register Trap Trace Device 0n E-Mru?l Account. 416 F. Supp. 2d 13, 14 (DEC. 2006) (Hogan, J.) (?Hogan Order?). 'lt authorizes both the installation of a ?device,? meaning, a separate computer attached to the provider?s network, and also a ?process,? meaning, a software program run on the provider. Id. at 16; 18 U.S.C. 3127. I Secure Socket Layer (SSL) or Transport Layer Security (TLS) Encry'pting communications scat across the internet is a way to ensure that only the sender and receiver of a communication can read it. Among the most common methods ot?cncn'pting Web and c-ntail traf?c is Secure Socket Layer (SSL), which-is aiso called Transport Layer Security (TLS) ?The Secure Socket Layer (8313) is one method for providing some security for Internet communications. SSL provides security by establishing a secure channel for communications between a web browser and the web server; that is, SSL ensures that the messages passed between the client web browser and the web server are Disney Enterprises, Inc. v. Rea, No. WL 1619686 *9 (ED. Va. Apr. 1 2013):, see also Stambier RSA Sea, Inc, 2003 Wt. 22749855 *2-3 (D. Del. 2003) (describing technical operation). As with most forms ofencry?ption. SSL relies on the use of large known as ?keys.? Keys are parameters used to or data. Specifically, SSL DJ Case Document 36-24 Filed 02/24/16 Page 11 of 18 Page D# 760 Case Document 11-17 Filed 09/20/13 Page 5 of 28 PagelD# 145 . REDACTED employs public-key in which both the. sender and each have two mathematically linked keys: 3 ?public? key and a ?private? key. ?Public? keys are published. but ?privatc? keys are not. Sending an message to someone requires knowing his or her public key; decrypiing that message requires knowing his or her private key. When inicmct traf?c is with capturing non~coment information on email communication from device is possible only after the traf?c is Because Internet communications closely content with non- coman pen-trap (lesions by necessity scan network trailic but exclude from any report to law enforcement of?cers all information relating, to the subject line and body of me communication. See 38 U.S.C. 31.27; Hogan Order, 4H3 F. Supp. 2d a: 1748. A. imp device, by de?nition, cannot expose to law enforcement of?cers the content of any communication. See id. FACTS The information at issue before the court is relevant to an ongoing criminai investigation of -"or violations of numerous i?cdcrai statutes- ,1 5+ Case Document 36-24 Filed 02/24/16 Page 12 of 18 Page D# 761 Case Document 11?17 Filed 09/20/13 Page 6 of 28 Page D# 146 REDACTED A. Section 270301) Order The criminal investigation has revealed that-has utilized and continues; to utilize an e-mail account,- obtained through Lavnbil, an electronic communications service provider. On June 10, 2013, the United States obtained an order pursuant to 18 U.S.C. ?2103 directing Lavabit to previde, within ten days, additional records and information about-email account. {.avabit?s owner and operator, Mr. Ladar Levison, provided very little of the inl'onnation sought by the June l0, 2013 order. B. Pen-Trap Order OnJune 28, 2013, the Honorable Theresa C. Buchanan entered an Order pursuant to 18 U.S.C. 3123 authorizing the installation and use of pen-imp device. on aid electronic communications being sent from or sent to the electronic mail account Order"). The Pen-Trap Order authorized the government to capture all ?non-content" dialing, routing, addressing, and signaling information sent to or from?and (ii) to record the date and time of the initiation and receipt of such transmissions, to record the duration of the transmissions, and to record user log-in data on the?all for a period ot?sixty days. Judge Buchanan further ordered Lax/obit to furnish agents of the Federal Bureau ot?lnvestigation "forthwith. all information, litcilities, and technical assistance necessary to accomplish the installation and use of?the pen-trap U) Case 1:13-sw-00522-CMH Document 36-24 Filed 02/24/16 Page 13 of 18 PageID# 762 Case l:13-ec-00297-TCB -SEALED* DocumenUl-17 Fi.ed 09/20/13 REDACTED device." Pen-Trap Order at 2. The government was also ordered to "take reasonable steps to ensure that the monitoring equipment is not used to capture any" content-related information, Id Pursuant to 18 U.S.C. §3123(d), Judge Buchanan ordered that the PenTrap Order and accompanying application be sealed. Id Later on June 28, 2013, two FBI Special Agents served acopy of the Pen-Trap Order on Mr. Levison. Mr. Levison informed the FBI Special Agents that emails were encrypted as they were transmitted to and from the Lavabit server as well as when they were stored on the Lavabit server. In addition, decryption Keys would be necessary to access any e-mail, Mr. Levison did not provide the keys to the Agent, in that meeting. ta an email to Mr. Levison on July 6,2013, aFBI Special Agent re-affirmed the nature of the intonation requested in the pen-trap order. In aresponse on the same day, Levison claimed "we don't record this data". C. Compliance Order Mr. Levison did no. comply with me Pen-Trap Order. According, in me evenin. ofJune 28,20.3. .he government obtained an Order Compelling CompW Fo,n, vi,V, from US. Magis.ra.e Judge There. C. Buchanan ("Compliance Order,, The Compliance Order diree.ed Uvbi, .o comply wM, .he Pen-Trap Order and .o "pro.de tt» Federal Bureau of .mogadon Nvi.h uneneryp.ed data pursuan. to .he Order." Uvabi. m fur.her ordered ,0 provide "any information, faeiii.ies, or .echnienl assistance are under ,be eon.ro, ofLavabit [.hat! are needed to provide the FB, v,i„, the nnenerypted data." Compliance Order a, 2. The Compliance Order indicated that failing to comply ,ouk, subject Lavabit to any P=nn.,y in „, power of,he court, "including the possibiluy, ofcriminal contempt ofCourt." Id Case 1:13-sw-00522-CMH Document 36-24 Filed 02/24/16 Page 14 of 18 PageID# 763 Case l:13-ec-00297-TCB'SEALED* Documem 11-17 Filed 09/20/13 Page 80, 28 PaSelD# D. Order to Show Cause Mr. Levison did not comply with the Compliance Order. On July 9, 2013, this Coun ordered Mr. Levison to appear on July 16,2013, to show cause why Lavabit has failed to comply with the Pen-Trap Order and Compliance Order. The following day, on July 10,2013, the United States Attorney's Office arranged aconference call involving the United States Attorney's Office, the FBI, Mr. Levison and Mr. Levison's attorney at the time, Marcia Hofmann. During this call, the panies discussed implementing the Pen-trap device in light of the encryption in place on the target e-mail account. The FBI explained, and Mr. Levison appeared to agree, that to install the Pen-trao device and to obtain the unencrypted data stream necessary for the device's operation the FBI would require (i) access to Lavabit's server and (ii) encryption keys. E. Grand Jury Subpoena On July 11. 2013, .he Uni.ed Sm.es Attorney's Office issued agrand jury subpoe„a for Mr. Levison .o.estify in front ofthe grand jury on July 16,20,3. The — ,„slrUe,ed Mr. Levison to btmg ,o ft. P«.jury bis encryp.ion keys and any 0„«r informadon necessary ,o accomplish .he insmlla.ion and « of.he pen-.rap device pursuan, ,0 .he Pen-Trap Order.' The FBI M.emp.cd ,0 serve ft. subpoena on Mr. Levison a, his residence. After knocking on his door, the FBI Special Agents vatnessed „, uvison exit his apartment from aback door, ge, in his ear. and drive away. Later in ft. evening, the FBI successfully served Mr. Levison witb the subpoena. 'Vx grand -m subpoena «• s»tee< »en,ty «.W on July l«, Ml Case 1:13-sw-00522-CMH Document 36-24 Filed 02/24/16 Page 15 of 18 PageID# 764 Case l:13-ec-00297-TCB -SEALED* DocumenUl-17 Fi.ed 09/20/13 REDACTED On July 13, 2013, Mr. Levison sent an e-mail to Assistant United States Attorney [staling, in part: In Rant of Ure conference call on July 10th and after subsequently reviewing the equlements of the June 28th order 1now believe it would be possible to capture teWb* data ourselves and provide it to the FBI. Specifically the mforrnahon ve'd ol e tis the login and subsequent logout date and time, the IP address used oconn tto the sublet email account and the following non-content headers (tt present) from any future emails sent or received using the subject account. The Ks\ currently plan to collect are: To, Co, From, Date Reply-To, Sender, Recc ved Return-Path, Apparently-To and Alternate-Recent. Note that addhionai header fields could be captured if provided in advance of my implementation effort. S2 000 in compensation would be required to cover the costof"<* «""J^ SSSSSSSsSSSSSSt notified automaticalany problems appeared. The e-mail again confirmed that Lavabit is capable ofproviding the means for the FBI to install the pen-trap device and obtain the requested information in an unencrypted form. M[S.^BirePlied to Mr. l^ ison'; e-mail that same day, explaining that the proposal was inadequate because, among other things, it did not provide for real-time transmission of results, and it was not clear that Mr. Levison's request for money constituted the "reasonable expenses" authorized by the statute. F. Search Warrant &2705(b) Nondisclosure Order On July 16,2013, this Court issued asearch warrant to Lavabit for (i) 1*1" information necessary to decrypt communications sen, to or from the Lavabit e-mail account including encryption keys and SSL keys" and (ii) 8 Case Document 36-24 Filed 02/24/16 Page 16 of 18 Page D# 765 Case Document 11?17 Filed 09/20/13 Page 10 of 28 Page D# 150 REDACTED information necessary to data stored in or otherwise associated with the Lavabit account_" Pursuant to 18 U.S.C. 2705(1)), the Court ordered l..avabit to not disclose the existence of the search warrant upon determining that ?there is reason to believe that notification of the existence of the . . . warrant will seriously jeopardize the investigation, including by giving target an opportunity to ?ee or continue flight from prosecution, destroy or tamper with evidence, change patterns of behavior, or notify cont?ederatcs." July 16,2013 Order (?Non~Disciosurc Order") at l. G. Rule 49 Settling Order The search warrant and accompanying materials were further sealed by the Court on July 16, 2013, pursuant to a Local Rule 49(8) (?Rule 49 Order"). in the Rule 49 Order, the Court found that ?revealing the material sought to be scaled would jeopardize on ongoing criminal investigation." The sealing Order was further justi?ed by the Court?s consideration ol""avuilabic alternatives that are less drastic than sealing, and finding none would suf?ce to protect the government?s legitimate interest in concluding the investigation; and having found that this legitimate government interest outweighs at this time any interest in the disclosure of the material." Rule: 49 Order at l. H. Show Cause Hearing At the Show Cause Hearing on uly 16. 2013, Mr. Levison made an oral motion to unseat the proceedings and related ?lings. The government objected since unseaiing the proceedings would jeopardize the ongoing criminal investigation 01- The Court denied Mr. Levison?s motion. Mr. Levison subsequently indicated to the Court that he: would permit the FBI to place at pen-trap device on his server. The. government requested that the Court further order Mr. Levison to provide his SSL keys since placing Case ocument 36- 24 Filed 02/24/16 Page 17 of 18 Page D# 766 Case Document 11-17 Filed 09/20/13 Page 11 of 28 Page D# 151 REDACTED a device on Lavabit?s server would only provide information that would not yield the information required under the Pen-Trap Order. The government noted that Lavabit was also required to provide the SSL keys pursuant to the search warrant and grand jury subpoena. The Court determined that; the government?s request for the SSL keys was premature given that Mr. Levison had offered to place the?pen-trap device on his server and the Court?s order for a show cause hearing was only based on the failure to comply with the Pen?Trap Order. Accordingly, the Court scheduled a hearing, for July 26, ?30 l3, to determine whether Lavabit was in compliance with the Pen~ Trap Order after a pen-trap device was 1. Motion to Unscul and Lift Non-Disclosure Order On July '35, 2013, Mr. Levison filed two motionswa Motion for Unsealing of Sealed Court Records ("Motion to Unseal") and aMotion to Quash Subpoena and Search Warrant (?Motion to Qudslt"). lnthe motions, Mr. Levison confirms that providing the SSL Acys to the government would provide the data required under the Pen-Trap Order in an form. Nevertheless, he refuses to provide the SSL keys. in order to provide the government with suf?cient time to respond, the hearing was rescheduled for August 1,2013?. On a later date, and after-discussions with Mr. Levieon, the FBI installed a pen- trap device (in Lavabit?s intemct service provider, which would capture the same information as if a pen-trap device was installed on Lavubit?s server. Based on the g0vemmem? 5 ongoing invesdgution, it is clear that'd?ue to Levabit?s services the pen-trap device is failing to capture data related to all of the emails sent to and from the account as well its other information required under the Pen?Trap Order. During. Case 1:13-sw-00522 CMH ocument 36-24 Filed 02/24/16 Page 18 of 18 Pa 767 Case Document 11?17 Filed 09120113 Page 12 28 PagelD# 152 REDACTED Luvabit?s over om: month of noncompliance with this Court?s Pen-Trap Onion- ARGUMENT 1. THE- SEARCH WARRANT AND THE GRAND URY SUBPOENA ARE LAWUL AND REQUIRE LAVABIT TO PRODUCE THE SSL- KEYS A. The search warrant and grand ury subpoena are valid beCause (hey merely re~smre Lavabit '5 pre-exisling legal duty. imposed by {he Pen?Trap Order. to produce necessary to accomplish insml??alion of lhe pewter duvicc. The motion of Lavabit and Mr. chison ?Lava?oit?) 10 quack both the grand jury subpoena and the search warrant should be denied because the subpoena and warrant rc-statc and clarify Lavabit?s obligation under the Pen-Trap Act :0 provldc that same information. in total, four separate legal obligations currently compel Lavabit to produce SSL keys: 1. The Pen-Trap Order pursuant to the Pen Register and Trap and Trace Device Act (18 U.S.C. 3 1214.7); IQ The Compliance Order compelling complimicc? forthwith with the Pen? Trap Order; 3. The July 16, 2013, grand jury subpoena; and 4. The July 16. 2013, search warrant, issued by this Court under the Electronic ommunicalions Privacy Acl Act authorich courts to ordcr providers such as Lavabit to disclose "information" that is "necessary" to accomplish the implementation or use of a pcn~trap. Sue 18- 11.8.0 3123(b)(2); 3124(3); 3124(1)). Judge Buchanan, acting under that authority, specifically required in the Pcny'l'rap Order that: IS ll Case ocument 3 - 6 25 Filed 02/24/16 Page 1 of 18 Page D# 768 Case Document 11-17 Filed 09/20/13 Page 13 of 28 PagelD# 153 REDACTED ORDERED. pursuant to 18 13.3.0 3123(1))(2). that Lavabit shall furnish agents from the Federal Bureau of Investigation, forthwith, all in?ammation, facilities, and technical assistance necessary to accomplish the installation and use of the pen/trap device unobtrusively and with minimum interference." ?Pen-Trap Order at 2. In this case, the SSL keys are necessary to accomplish the and use of the [pen-trap)" because all other Options for installing the pen~trap have failed. In a typical case, a provider is capable of implementing a pen-trap b?yusing its own software or device. or by using a technical. solution provided by the investigating agency; when such a solution is possible, a provider need not disclose its key. In re Application oflhe US. for an Order Authorizing the Use ofa Pen Register and Trap 0n Internet Sent Account/User Name 396 F. Supp. 2d 45, 49 (D. Moss. 2005) (suggesting language in a pen-trap order ?to impose upon the internet service providers the necessity of making sure that they Configure their Soi?thrc in such a manner as to disclose only that which has been In this case, given Lavobit?s use of- SSL Lavabit?s lncleof a software solution to implement the pen-trap on behalf the government, neither the government nor Mr. Levison have been able to identify such a solution. Because the search warrant and grand jury subpoena require nothing that the Pen- ?l?mp Act does not already require, they are not unreasonably burden-some. Moreover, a court?s constitutional authority to require a telecommunications provider to ass-int the government in implementing, a penetrap device is well-established. ?6 United States v. New York Tel. (10.. 434 US. 159, 168-69 (1977) (in a ACE case, holding that district court had the authority to order a phone company to assist in the installation of a Case Document 36-2 5 Flled 02/24/16 Page 2 of 18 Page D# 769 Case Document 11-17 Filed 09120113 Page 14 of 28 PagelD# 154 REDACTED pen-trap, and "no claim is made that it was in any way inconsistent with the Fourth Amendment?) 8. Lavabit 15' motion to quash the search warrant mast be denied because there tr no statutory awhorz'iyfor such morio'ns. and the search warrant tr lcr'w?d in any event. i. Lavobit lacks authority to move to suppress a search warrant. Lavabit lacks authority to ask this Court to ?quash? a Search warrant before it is executed. The search warrant was issued under Title ll of BCPA, l8 U.S.C. 270i: 2? 12,- ECPA allows providers such as Lavabit to move to quash court orders; but does not create an equivalent procedure to move to quash search warrants. 18 U.S.C. 270381). The lack of a corresponding motion to quash or modify a search warrant means that there is no?statutory authority for such motions. See 18 U.S.C. 2708 (?[tlhe remedies and sanctions described in this chapter are the 'only judicial remedies and sanctions for rtonconstit?utional violations of this chapter?); of In re Application of the us. for an Order Pursuant to 13 0.3. C. 9? 270m), 830 Supp. 2d 114, 128?29 (ED. Va. 20l l) (it-pitting that the lack 'of a Speci?c provision in ECPA permitting users to move to quash court orders requires ?the Court [to] infer that Congress deliberately declined to permit [such] . 2.. The search warrant complies with the Fourth Amendment and is- not general. The Fourth Amendment requires that a search warrant ?particularly describ?el the place to ho searched. and the persons or things to be seized." U.S. Const. Am. IV. This ?particuiarity requirement is ful?lled when the warrant identifies the items to be seized by their relation to designated crimes and When the description of the items leaves Case - . 1 13 sw 00522 CMH Document 36-25 Filed 02/24/16 Page 3 of 18 PagelD# 770 Case Documejrtg F11-17 Filed 09/20/13 Page 15 of 28 PagelD# REDACTED nothing to the discretion of the oil?tcer executing the warrant." United Stores v. Wit/rams, 592 F.3d 5! l, 519 (4th Cir. 2010). The July 1 6, 2013, search warrant?s speci?cation easily meets this standard, and therefore is not general. It calls for only: a. All information to communications sent to or from the= Lawson e-mail account including keys and SSL keys; b. All information necessary to data Stored in or otherwise associated with the [ambit account That Speci?cation leaves nothing to discretion; it calls for eneryption and SSL keys and nothing else. Acknowledging this speci?city, Lavabit nonetheless argues that the warrant. ?operates as a general warrant'by giving, the Government access to every Lavnbit user?s communications and data.? Mot. to Quash at To the contrary, the warrant does not grant the government the legal authority to access any Lavab'it user?s communications or data. After Layttb'tt produces its keys to the govertuucnt. Federal statutes, such as the Wiretap Act and the Pen-Trap Act, will continue to limit sharply the authority to collect any data on any Lavnbit for the one Lavahlt user whose account is currently the subject of the Pen-Trap Order. See 18 118.0. 2511(1) (punishing as a felony the unauthorized interception of communications); 312.1 (c?m?lnaliz?tng the use of pen-trap devices without alt-court order). it cannot be that a search warrant is ?generul? merely because it gives the government a. tool that, if abused contrary to law, could constitutes general search. Compelling the owner of an apartment building to unlock the building?s front door so that agents can search one apartment is net 14 Case 1: - . 13 sw 00522 CMH Document 3625 Flled 02/24/16 Page 4 of 18 Page D# 771 Case Document 11-17 Filed 09l20113 Page 16 of 28 PagelD# 156 a ?general search" of the entire apartment if the building owner imagines that undisciplined agents will illegally kick down the doors to apartments not described in the warrant. C. Lavobr?r motion to quash the subpoena must be denied because compliance would not be unreasonable or oppressive A grand jury subpoena ?may order the witness to produce any books, paper?s, data, or other objects-tho subpoena designates," but the court ?may quash or modify the subpoena if compliance would be unreasonable or oppressive." Fed. R. Crim. P. 3: see In re GronrlJury, John Doe No. 6.120054, 478 F.3d 581, 585 (4th Cir. 2007) (rccognizing courts may quash subpoenas that are ?abusive or Lat/21bit argues the subpoena should be quashed because it the Government unlimited access to every one of its user's accounts." Mot. to Qunslt at 7. As ottpiained above, the subpoena does no such thing: it merely reaf?rms Lttvubit?s existing obligation to provide information necessary to implement this Court?s Order on a single Lavabit customer?s c-mail account. The Pen~Trap Order further restricts the government?s access by preventing the government from collecting the content of that Lavnbit customer?s cannil communications. Lavabit also argues that it will lose customers? trust and business if it they learn that Lax-obit previded the SSL keys to the government. But Lavabit ?nds itself in the position of having, to produce those keys only because, more than a month after the Pen- ?l"rap Order, Lavubit has failed to assist the government to implement the pen-trap device. Lovabit cites 18 U.S.C. 2703(d) authority {Or its motion to quash. but that section by its terms only permits motions to quash coun orders issued under that same section. Case ocument 36- 25 Flled 02/24/16 Page 5 of 18 Page D# 772 Case Document 11-17 Filed 09120113 Page 17 of 28 Page D# 157 REDACTED Any resuiting loss ?trust? is not an ?unreasonable? burden if Lavabitls customers trusted that Lavabit would refuse to comply with lawful court orders. All providers are statutorily required to assist the government irrthe implementation of pen- traps, sec 18 312.401), and requiring providers to comply with that statute is neither ?unreasonable? nor ?oppressive.? In any event, Lovabit?s privacy policy tells its customers that ?Lavsbit will not release any information related to an individual user unless legally compelled to do so." See liitntiilavabit.comiprivaev (emphasis added). Finally, once court?ordered surveillance is complete, Lavnbit will be free to change its SSL keys. Vendors sell new SSL certi?cates for approximately $100. See, GoDatldy LLC, SSL Certificates, Moreover, Lavabit is entitled to compensation ?for such reasonable expenses incurred in providing? assistance in implementing a pen?trap device. 38 U.S.C. 3124(c). ll. ORDER IS 1TH THE AMENDMENT BECAUSE. IT IS NARROWLY TAILORED TO SERVE- WHAT ALL PARTIES AGREE IS A COMPEL LING GOVERNMENT INTEREST Lei/obit has asked the Court to unseal all of the records sealed by this Court?s Order to Seal, and to lift the Court?s Order dated July 16, 20l 3, directing Lavebit not to disclose the existence of the search warrant Court signed that day (?NomDisclosure Order?) Motion for of Sealed Court Records and Removal of Non- Disclosurc Order (?Moe to Unscal") at 1-2. anabir, however, has not identi?ed (and cannot) any compelling reason sufficient to overcome what. even Lovabit concedes is the government?s compelling interesr in maintaining the secrecy and integrity of its active investigation- Moreover, the restrictions are narrowly tailored to restrict 16 Case Docume nt36-25 Filed 02/24/16 Pa e6 Case Document 11-17 Filed 09/2 13 1% REDACTED anabit from discussing only a limited set of information disclosed to them as part of this investigation. Because there is no reason to jeepardize the criminal investigation, this motion must be: denied. .4. The Nan-Disclosme Order survives even strict scrutiny review by imposing necessary but limited secrecy obligatiomr on Lavnbir The United States docs not concede that strict scrutiny must be applied in reviewing the Non-Disclosure Order. There is no need to decide. this issue, however, because the Non-Disclosure Order is narrowly tailored to novancc a compelling government intercsr, and therefore easily satis?es strict scrutiny. The Government has a compelling interest in protecting, the integrity of ran-going criminal investigations. It?irginia De}; ?t of State Police v. Wash. Post, 386 F.3d 567, 579 (4th Cir. 2004?) ("We note initially our complete agreement with the general principle that compelling governmental interest exists in protecting the integrity of an ongoing law enforcement investigation"); Branzburg v. Mtg-tor, 408 US. 665, 700 (1972) (?requirements that a State?s interest ?must'bo ?compelling' also met here. As we have indicated, the invcs?gnrion of crime by the grand jnry implements a fundamental governmental role of securing the safety of the: person and prepcny of the citizen indeed, it is ?obvious and that no government interest is more compelling than the security ol'thc Nation." Haig v. Agate, 453 US. 280, 307 (-1931) (internal outstation marks omitted); see also Dep 't ofrhe Navy Egon, 484 U.S. 527 (1988) (?This Court has recognized the Government?s intercSt? in withholding notional security information from unauthorized persons in the course of executive business"). Likewise, here. the United States clearly has a compelling interest in. ensuring, that the target of law?tl surveillance is not aware that he is being monitored. 1? Case Document 36-25 Filed 02/24/16 Page 7 of 18 Page D# 774 Case Document 11-17 Filed 09/20/13 Page 19 of 28 PagelD# 159 REDACTED - United States v. Aguilar. 515 US. 593. 606 (1995) (holding that a statute prohibiting disclosure of swirctap was permissible under the First Amendment, in part because think the Government?s interest is quite suf?cient to justify the construction of the statute as written, without any artificial narrowing because of First Amendment concerns"). As the NonvDisclosurc Order makes clear, publicizing ?the of the [search] warrant will seriously jeopardize the investigation, including by giving targets an opportunity to ?ee or continue flight from prosceution,ldestroy or tamper with evidence, change patterns of behavior, or notify Confederates.? Lavabi?t acknowledges that ?the government has a compelling interest in maintaining the integrity ot'its criminal investigation Mot. to Unscal at id. at 6 (?the government has a legitimate interest in tracking" account); at 8 (?the secrecy of [Stored Communications Act] investigations is a compcliing government interest?). in spite of this recognition, Lavnbit states it intends to disclose the Search warrant and Order should the Court grant the Motion to Unseal. Id. at 5 Levinson needs some ability to voice his concerns [and] garncr support for his cause"); id. at 6. Disclosure of electronic surveillance process before the electronic surveillance has finished, would be unprecedented and defeat the very purpose of the surveillance. Such disclosure would ensure that? along with the public, wouid loam oi?the monitoring of-c-mail account and take action to the legitimate monitoring of that account. The Non-Disclosure order is narrowly tailoer to serve the government?s competiing intercst of protccting the integrity of its investigation. The scope of information that Lavabit may not disclose could hardly be more narrowly drawn: ?the 18 Ca - - - . se 1.13 sw 00522 CMH Document 36-25 Filed 02/24/16 Page 8 of 18 Page D# 775 Case Document 11-17 Filed 09/20/13 Page 20 of 28 PagelD# 160 ol'titc attacth scare-h warrant? and the Non-Disclosure Order itself. Restrictions on a party?s disclosure of information obtained through participation in coniidcntial proccodings stand on a ami?rmer constitutional footing from restrictions on the disclosure of information obtained by independent moans. Semi/e Tones Co. v. Rhine/tart, 467 US. 20, 33 (1984) (order prohibiting, disolosurc of information learned through judiciallprocoeding ?is not the kind of classic prior restraint that requiros exacting First Amendment scrutiny?); letrttinvorth v. Smith, 494 US. 6-24, 632 (1990) (distinguishing between a witness? ?right to divulge information of which he. was in possession before he. testified before. the grand gory? with ?information which he may have obtained as a result of his participation in the proceedings ol?thc grand jury?); see also Plowman-Pugh v. Keenan, 338 F.3d ll36, 1140 (lOth Cir. 2003) (finding prohibition on disclosing information learned through grand jury process, as opposed to information person already knew, does not violate First Amendment). in Rhine/tart, the Court found that ?control over [disclosure of] the discovered information does not misc tlic some: specter of government that such control might suggest in other situations." 46?? US. 3132. Further, the Non-Disclosure Order is temporary. The nondisclosure obligation will last only so long as necessary to protect the government?s ongoing investigation. 8. The Order neither forecloses discussion of an ?entire topic" nor constitutes an unconstitutional prior res/min! on speech The limitation imposed here does not close off from discussion on ?entire topic.? :15 articulated in Consolidated Edison. Mot. to Unsaid at 4. At issue in that case was the constitutionality of :1 state commission?s orch prohibiting a regulated utility i'rozn including inserts in bills that discussed any controversial issue of public policy, l9 Case Document 36-25 Filed 02/24/16 Page 9 of 18 Page D# 776 - Case Document 11?17 Filed 09/20/13 Page 21 of 28 Page D# 161 REDACTED such as nuclear power. Consolidated Edison Co. quew York v. Pub. Sew. Comm of New York, 447 530, 53?. (1980). The NonvDisclosurc Order, by contrast, precludes a single individual. Mr. Lev?ison, from discussing a narrow set of information he did not know before this proceeding commenced, in order to protect the integrity of an ongoing- criminal investigation. j? Doe v. Mukasey, 549 F.3d 861, 876 (2d Cir. 2009) (?althongh the nondisclosure requirement is triggered by the content of a category of?int?orrnation, that category. consisting ofthc fact of [a National Security Letter] and some related details. is far more limited than the broad categories of information that have been at issue with respect to typical content?based restrictions"). Mr. Levison may-still discuss everything he could discuss before the Non-Disclosure ?Order was issued. Lavabit?s argument that the Non-Disclosure Order, and by extension all 270503) orders, are unconstitutional prior restraints is likewise unavailing. Mot. To Unseal at 5-6. As argued above, the Non-Disclosure Order is narrowly tailored to serve compelling government interests and satisfies strict scrutiny. See supra, Part ll.A. Regardless, the Non-Disclosure Order does not ?tvwithin the two general categories of prior restraint that can run afoul of the First Amendment: licensing regimes in which an individual?s right to speak is conditioned upon prior approval from the government, see City of Lakewood v. Plain Dealer Publishing Co, 486 US. 750, 757 (1988), and injunctions restraining certain speech and related activities, such as publishing defamatory or scandalous articles. showing obscene movies, and distributing lea?ets, see Alexander v. United States, 509 US. 54-4, 550 (1993). A prior restraint denies a person the ability to empress vichoints or ideas could have possessed without any government involvement. Section must b) orders, by contrast, restrict it recipient?s ability to disclose limited 20 Case Document 36-25 Filed 02/24/16 Page 10 of 18 Page D# 777 Case Docu_ment11?17 Filed 09/20/13 Page 22 of 28 PagelD# 162 REDACTED information that the recipient only learned from the government?s need to effectuate a legitimate, judicially sanctioned form of monitoring. Such a narrow limitation on information acquired only by virtue of an of?cial investigation does not raise the same concerns as other injunctions on speech. Cf Rhinehart. ?367 US. at 32, Doe v. Mulrasey, 549 F.3d at 877 (?Mine non-disclosure requirement" imposed by the national security letter statute "is not a typical prim restraint or atypical content-based restriction warranting the most rigorous First Amendment scrutiny"). N0 VALID BASIS EXISTS TO DOCUMENTS THAT, IF MADE PUBLIC WOULD JEOPARDIZE AN ION-GOING CRIMINAL INVESTIGATION A. A ny common law right of access is ount?ci?ghed by the need to protect the integrity ofthe investigation. Lavabit asserts that the common law right of access necessitates reversing this Court?s decision to seal the search warrant and supporting documents. Mot. to nscel at 740. The presumption of public access to judicial records, however, is ?qualified,? Bolt. Sim Co. v. Goetz. 886 F.2d 60, 65 (4th Cir. 1989), and rebuttable Upon a showing that the ?publie?s right of access is outweighed by competing interests," In re Application ofthe for an Order Pursuant to 18 as. C. SeCIfon 2 703 707 F.3d 283, 290 (4th Cir. 20B) (?Twitter?). In addition to considering substantive interests, a judge must also consider procedural alternatives to scaling judicial records. Twitter, 70?! F.3d at 294. "Adherence to this procedure serves to ensure that the decision to seal materials will not be made and that it will be subject to meaningful appellate review.? Va. Dept of State Police i'l?ush. Post. 386 F.3d 567, 576 (4th Cir. 2004). This standard is met easily here. Ca - - se 1.13 sw 00522-CMH Document 36-25 Filed 02/24/16 Page 11 of 18 Page D# 778 Case Document 11?17 Filed 09l20/13 Page 23 of 28 PagelD# 163 REDACTED common law does not afford as much substantive protection to the interests of the press and the public as does the First Amendment.? Twitter, 707 F.3d at 290 (internal quotation marks omitted). With respect to the substantive equities at stake, the United States? interest in maintaining the secrecy of a criminal investigation to I prevent the target of the surveillance from being alerted and altering behavior to thwart the surveillance clearly outweighs any public interest in learning about speci?c acts of son?cillancc. Id. at 2-94 (rejecting common law right of access because inter alia, the sealed documents ?set- forth sensitive non-public facts, including the identity of targets and witnesses in an ongoing criminal investigation?). ?Because secrecy is necessary for the proper functioning of the criminal investigation? prior to indictment, ?openness will frustrate the government?s operations." Id. at 292. Lavabit concedes that ensuring ?the secrecy of [Stored Communications Act] investigations," like this, ?is a compelling government interest." Mot. to Unseai at 8 (emphasis added). anabit does not, however, identify any compelling interests to the Far from presenting ?a seriously concerning expansion of grand jury subpoena power,? as L-evnbit's contents, id, a judge issued the Pen-Trap Order, which did not authorize monitoring of any Lin/obit e?mail account other than in addition, the Court satis?ed the procedural prong; It ?considered the available alternatives that are less drastic than scaling, and {found} none would suf?ce to protect the government's legitimate interest in concluding the investigatioo." Rule 49 Order. The Fourth Circuit's decision in Twitter is instructive. That case arose from the investigation ot'Army Pt?c. Bradley Manning. Speci?caliy, the government obtained an order pursuant to 18 U.S.C. 27030:!) directing 'l?witter to diseloSe electronic Ix.) Case Document 36-25 Filed 02/24/16 Page 12 of 18 Page D# 779 Case Document 11-17 Filed 09/20/13 Page 24 of 28 PageID# 164 I REDA communications and account and usage information pertaining to three subscribers. When apprised of this, the subscribers asserted that a common law right of access required unsettling records related to the 2703((1) ordcr. The Fourth Circuit this claim, ?nding that the pubiic's interest in the Wikilcaks investigation and the government?s electronic surveillance of interact activities did not outweigh ?the Govcmment?s in maintaining the secrecy of its investigation, preventing potcntiai suspects from being tipped off. or altering behavior to thwart the Govcnuncnt?s ongoing investigation.? 707 F.3d at 293. ?The mere fact that a case is high profile in nature,? the Fourth Circuit observed, ?does not necessarily justify public access.? Id. at 294. Though Twitter involved a ti 270303) order, rather than a 2705(1)) order, the Court indicated this is a distinction without 1d. at 294 (acknowledging that the concerns about unsettling records ?accord? with 2705(b)). Given the similarities Twitter and the instant cascwmost notably the compelling need to protect otherwise confidentiai information from public disclosure and the nationai attention to tho is no compelling rationan before the Court ?nding that a common law right of access exists here. 8. Courts have inherent authorin to seal EC PA process Lavnbit asserts that this unseat the Non-Disclosure Ordcr because 18 .S.C. 2705(b') docs not cxpiicitiy reference the scaling of non-disclosure orders issued pursuant to that section. Mot. to Unscai nt 940. As an initial matter, the Court has inherent authority to scat documents before it. In re Knight Pub. 743 F.2d 23 235 (4th Cir. 1984) (?ltihc trial court has supervisory power over its own records and may, in its discretion, 5ch documents if the public?s right of access is outweighed by competing Case Document 36-25 Filed 02/24/16 Page 13 of 18 Page D# 780 Case Document 11-17 Filed 09/20/13 Page 25 of 28 PagelD# 165 REDACTED interests"); see also rlrfedr?a General Operations. Inc. v. Bile/tartan, 417 FM. 424, 430 (4th Cir. 2005); United States v. US. Dist; Court, 407 US. 297', 321 (l 972) warrant application involves no public or adversary proceedings: it is an ex pane reunSt before magistrate or judge"). In addition, the Court here exercised its authority to seal pursuant to Local Rule the validity of which Lavabit does not. contest. Even if the Court did not have this authority, Lavabit?s reading of 27050)) must be rejected, because it would gut the essential function of non-disclosure orders and thereby' disregard Congress? clear intent in passing 2705.. "lite Section allows courts to delay noti?cation pursuant to 2705(a) or issue anon-disclosure order pursuant to 2705(b) upon ?nding that disclosure would risk enumerated harms, namely danger to a person?s life or safety, ?ight from prosecution, destruction of evidence, intimidation of witnesses, or seriously jeopardizing an investigation. 18 U.S.C. It would make no sense for Congress to purposefully authorize courts to limit disclosure of sensitive information while simultaneously intending to allow the some information to be publicly accessible in an unsealed court document. Finally. the implications Lavabit attempts- to draw From the mandatory scaling requirements of l3 U.S.C. 2518(8)(b) and are mistaken. While Lavabit characterizes those statutes as granting courts the authority to seal Wiretap Act and pen- t'rap orders, courts already had that authority. Those statutes have another ct?t?ecr: they removed discretion From courts by requiring that courts seal Wiretap Act Orders and pen- trap orders. See 18 U.S.C. 2518(3)(b) (?Applications made and orders granted under this chapter shall be sealed by thejudge?) (emphasis added); id. (?The record maintained under (A) shall be provided ex pane and under seal to Case Document 36-25 Filed 02/24/16 Page 14 of 18 Page D# 781 Case Document 11-17 Filed 09/20/13 Page 26 of 28 Page D# 166 REDACTED the court") (emphasis added). Congress? decision to ictwc that discretion in place in other situations docs not mean that Congress believed that only Wiretap Act and pcn~trap orders may be scaled. C. Supposed privacy concerns do not comps! a common/aw right of access the sealed documents. Lavabit?s brici? ends with an argument that privacy interests require a common law right of access. Mot. to Unscal at lQ?l l. Lavabit, however, offers no legal basis for this Court to adopt such a novel argument, nor do the putative policy considerations Lavabit referenccs outweigh the government?s compelling interest in preserving the secrecy of its ongoing criminal investigation. the most compelling currently the Court is ensuring that the Court?s orders requiring that Mr. Levison and Ltwabit comply with legitimate monitoring be implemented forthwith and without additional delay, evasion, or resistance by Mr. Levison and Lavabit. Case Document 36-25 Filed 02/24/16 Page 15 of 18 Page D# 782 Case Document 11?17 Filed 09/20/13 Page 27 of 28 Page D# 167 REDACTED CONCLUSION For the foregoing reasons, Lavabit?s motions should be denied. Furthermore, the Court should enforce the Pem'l'rap Order, Compliance Order, search warrant, and grand jury subpoena by imposing sanctions until Lavabit compiies. Reapectfully' Submitted, NEIL H. MACBRIDE Assistant United States Attorney United States Attorney?s Of?ce 2100 Jamicson Ave. Alexandria VA 22314 703~299~3700 Case Document 36-25 Filed 02/24/16 Page 16 of 18 Page D# 783 Case Document 11?17 Filed 09/20/13 Page 28 of 28 Page D# 168 REDAC TED CERTIFICATE OF SERVICE I hereby certify that on July 31., 2013, I emailed a cepy of the foregoing document to Lavabit?s Counsel of Record: Jesse R. Binnall Bronlcy 8: Binnall, PLLC 10387 Main Street, Suite 201 Fairfax, VA 22030 Assistant United States Attorney United States Attorney?s Of?ce 2100 Jamieson Ave. Alexandria, VA 22314 703-299-3700 Case Document 36-25 Filed 02/24/16 Page 17 of 18 Page D# 784 Case Document 11-18 Filed 09/20/13 Page 1 of 16 PagelD# 169 EXHIBIT 18 Case Document 36-25 Filed 02/24/16 Page 18 of 18 PageID# 785 Case Document 11-18 Filed 09/20/13 Page 2 of 16 PageID# h) 170 REDACTED UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION 1 IN THE MATTER OF THE NO. 1:13 EC 297 APPLICATION OF THE UNITED STATES AUTHORIZING THE use A 29m AND TRACE DEVICE ON AN . ELECTRONIC MAIL ACCOUNT IN THE MATTER OF THE SEARCH NO. 1:13 SW 522 AND sezzuas 0? INFORMATION a f! THAT IS STORED AND CONTROLLED CONTROLLED BY LAVABZD, LLC IN RE SRAND JURY SUBPOENA NO. 13~1 UNDER SEAL a Alexandria, August 1, 2013 10:00 a.m. HEARING BEFORE HONORABLE CLAUDE M. HILTON UNITED STATES DISTRICT JUDGE For the United States: James Trump, Esq. Michael Ben'Ary, Esq. Josh Goldfoot, Esq. For the Resgondent: Jesse R. Binnall, Esq. Couxt Reporter: Tracy Westfall, 9roceedings reported by machi shorthand, by computerwaided transcription. RPR, CMRS, CCR transcript produced 'rracy L. Wesafail Case 1:13-sw-OO - - 522 CMH Document 36-26 Flled 02/24/16 Page 1 of 19 PageID# 786 Case Document 11?18 Filed 09/20/13 Page 3 of 16 PagelD#' 171 UNDER SEAL REDACTED 1 I 2 THE CLERK: In Case NOS. 1:13 EC 29?, 1:13 SW 522, 3 and Grand Jury No. 13~1. J: MR. TRUMP: Good morning. Jim Trump on behalf of the 5 United States. 0\ THE Good morning. 7 MR. BINNALL: Good morning, Your Honor. Jesse Binnail 8 on behel? of Lavabit and Mr. Levison. 9 THE COURT: All right. 10 MR. BINNALL: May it please the Court. We're before 11 the Court today on two separate motions, a motion to quash the 12 requirement of Lavabit to produce its keys and the i3 motion to unseal and lift the nondisclosure requirements of 14 Mr. Levison. 15 Your Honorr the motion to quash in this arises because 16 the privacy of users is at of Lavabit's users are at state. 17 We're not simply Speaking of the target of this investigation. 18 we?re talking about over 400,000 individuals and entities that 19 are users of Levabit who use this service because they believe 20 their communications are secure. 21 By handing over the keys, the keys in this 22 case, they necessarily become less secure. In this Case it is 23 true that the face of the warrant itsel documents or and communications to be viewed and the specific 25 metadata to be viewed to the target of the case, ?racy L. ?estfall Case Document 36-26 Filed 02/24/16 Page 2 of 19 Pa 787 Case Document 11-18 Filed 09/20/13 Page 4 of 6 PagelD# k} U) 172 UNDER SEAL (AJ- REDACTED However, there is a lack of any sort of check or balance in order to ensure that the w~ that the data A: 0; other Lavabit users remain secure. The in this case doesn?t protect only content. it protects lcgin data and the other some of the other metadata involved in this case. We believe that this is not the least restrictive means in order to provide the?qovernment the data that they are looking for. Specifically THE COURT: You have two different codes, one for the logins and the messages that are transmitted. You have another code that the content of the messages, right? MR. BINNALL: Your Honor, believe that that is true. From my understanding of the way that this works is that there is one SSL key. That SSL key is what is iseue i 5 4 this case, and that SSL key specifically protects the communication, the over the breadth of the communication itself.from the user's actual computer to the server to make sure that the user is communlcating with exactly who the user intends to be communicating with, the server. And that's one of the things that SSL does. It ensures that you?re talking to the right person via e?mail and there?s not a eo~called man in the middle who?s there to take that message away. THE COURT: Does that key also contain the code of the Tracy L. 'zlestz'all Case Document 36-26 Filed 02/24/16 Page 3 of 19 Page D# 788 Case Document 11-18 Filed 09/20/13 Page 5 of 16 PagelD# 173 UNDER SEAL I: REDACTED message and interpret the message as well? MR. BINNALL: My understanding is that it does, Your Honor, but because that's not my technical expertise, I'm not going to represent to the Court anything on that one way or another. But my understanding is there is one general key here that is at issue. THE COURT: Well, why would you set up such? I mean, a telephone, you've got telephone numbers and -- Correct. those can be traced very easily without any look at the content of the message that's there. You?all could have set up something the same way. MR. BINNALL: We could have, Your Honor. Actually, if you're to THE COURT: So if anybody?s you're blaming the government for something that?s overbroad, but it seems to me that your client is the one that set up the system that's designed not to protect that information, because you know that there needs to be access to calls that go back and forth to one person or another. and to say you can't do that just because you?ve set up a system that everybody has to has to be unenorypted, if there's such a word, that doesn't seem to me to be a very persuasive argument. MR . BINNALL: I understand the Court's point, and this is the way that I understand why it?s done that way. Tracy Westfail Case 1:1 - - . 3 sw 00522 CMH Document 36-26 Filed 02/24/16 Page 4 of 19 PageID# 789 Case Document 11-18 Filed 09/20/13 Page 6 of 16 Page D# "being -order to secure privacy to the 174 UNDER SEAL REDACTED .3 :nere's different security aspects involved tor people who want to protect their privacy, and there certainly is the actual content of the message themselves. That?s certainly what I would concede is the highest security interest. But there?s also the security interest to make sure that they're communicating with who you want to be.communiceting That is equally of a concern for privacy issues because th is, at the end of the day, 9.) one of the things that secures the content of the message. In this case it is true that most Internet service providers do log, is what they call it, a lot of the metadata that the government wants in this case without that necessariiy things Such as who something is going to, who it's going from, the time it's being sent, the address from which it is being sent. Lavabit code is not something that you buy off the shel?. It is code that was custom made. It was custom made in largest extent possible and to be secure way possible for multiple people to communicate, and so it has chosen specifically not to log that information. Now, that is actually information that my client has offered to start logging with the particular user in this case. It is. however, something that is quite burdensome on him. It is something that would be custom code that would take between 20 to ?0 hours for him to be able to produce. We believe that Tracy L. neural}. Case Document 36-26 Filed 02/24/16 Pa 5 of 19 Pa e D# 790 Case Document 11-18 Filed 09/201 3 Page 7 of 6 PagelD# #4 I (J1 ,4 CH 175 UNDER SEAL REDACTED is a better alternative than turning over the key which can be used to get the data for all Lavabit users. I hope that addresses the Court's concern kind of with regard to the metadata and why it is not more w? why Lavabit hasn't created an syscem that may honestly be more within the mainstream, but this is a provider that specifically .was started in order to have to protect privacy interests more than the average Internet service provider. THE COURT: I can understand why the system was set up, but I think the government is government's clearly entitled to the ihformation that they're seeking, and just because you-all have set up a system that makes that difficult, that doesn't in any way lessen the government?s right to receive that information just as they would from any telephone company or any other e~mail source that could provide it easily. Whether it?s in other words, the difficulty or the ease in obtaining the information doesn't have anything to do with whether or not the government?s lawfully entitled to the information. MR. BINNALL: It is and we don't disagree that the government is entitled to the information. We actually we Well, how are we going to get it? I?m going to have to deny your motion to quash. It's jus: not overbroad. The government?s asking for a very narrow, speci?ic bit of information, and it's information that they're entitled CO. Tracy L. Westfall -cs~usscreov5 Case 1:13-s - - . 00522 CMH Document 36-26 Flled 02/24/16 Page 6 of 19 PageID# 791 Case Document 11-18 Filed 09/20/13 Page 8 of 16 PagelD# 176 La.) 23 24 25 UNDER SEAL REDACTED Now, how are we going to work out that they get it? MR. Your Honor, what I would still say is the best method for them to get it is, first of all, there be some way for there to be some sort of accountability other than jus: relying on the government to say we're not going to go outside the scope of the warrant. This is nothing that is, of course, personal against the government and the, you know, very professional law enforcement officers involved in this case. But quite simply, the way the Constitution is set up, itensure that there's some sort of checks and balances and accountability. THE COURT: What checks and balances need to be set up? MR. Well THE COURT: Suggest something to me. MR. BINNALL: I think that the least restrictive means possible here is that the government essentially-pay the reasonable expenses, meaning in this case my client?s extensive labor costs to be capped at a reasonable amount. THE COURT: Has the government ever done that in one of these pen register cases? MR. BINNALL: Not that I?ve found, Your Honor. THE COURT: I don't think so. I've never known of one. MR. BINNALL: And Your Honor's certainly seen more o? these than I have. Tracy L. 'n'uatfall Case 1:13-sw- - 00522 CMH Document 36-26 Flled 02/24/16 Page 7 of 19 PageID# 792 Case Document 11-18 Filed 09/20/13 Page 9 of 16 PageID# 03 19 20 21 177 UNDER SEAL REDACTED THE COURT: So would it be reasonable to start now with your ciient? MR. BINNALL: I think everyone would agree that this is an unusual case. And that this case, in order to protect the privacy of 400,000~plus other users, some sort of relatively email manner in which to create a log system for this one user to give the government the metadata that they?re looking for is the least restrictive mean here, and we can do that in a way that doesn't compromise the security keys. This is actually a way that my client THE COURT: You want to do it in a way that the government has to trust you MR. Yes, Your Honor. A THE COURT: es to come up with the right data. MR. BINNALL: That?s correct, Your Honor. THE COURT: And you won't trust the government. 30 why would the government trust you? MR. BINNALL: Your Honor, because that?s what the basis of Fourth Amendment law says is more acceptable, is that the government is the entity that you really need the checks and balances on. Now, my ?w THE COURT: I don't know that the Fourth Amendment says that. This is a criminal investigation. MR. BINNALL: That is absolutely correct. Tracy L. Weszfall Case Document 36-26 Filed 02/24/16 Page 8 of 19 Page D# 793 Case Document 11-18 Filed 09/20/13 Page 10 of 16 PagelD# 178 UNDERASEAL REDACTED THE COURT: A criminal investigation, and I don't know that the Fourth Amendment says that the person being investigated here is entitled to more leeway and more rights than the government is. I don?t know. MR. BENNALL: There certainly is a balance of power there. I, of course, am not here to represent the intereSt of I'm here specifically looking over my client-who has sensitive data THE COURT: I understand. l?m trying to think of working out something. I'm not sure you?re suggesting anything to me other than either you do it and the government has to trust you to give them whatever you want to give them or you have to trust the government that they're not going to go into your other files. Is there some other route? MR. BINNALL: I would suggosu that the government 'm sorry that the Court can craft an order to say that we can that we should work in with each other in order to come up with this coding system that gives the government all Hi 0 the metadata that we can give them through this logging orocedure that we can install - in the code, and then using that as a least restrictiVe means to see if that can get the government the information that they?re looking for on the specific account. THE COURT: How long does it take to install that? Tracy L. Westfall Case Document 36-26 Filed 02/24/16 Page 9 of 19 Page D# 794 Case Document 11-18 Filed 09/20/13 Page 11 of 16 PagelD# J3. 0% (I) I . 'criminal investigation, 179 UNDER SEAL 10 REDACTED MR. I mean, 20, 40 hours. So I would suggesr that would probably be a to a week and a half, Your Honor, although I would be willing to talk to my client to see if we can get that expedited. To install it: HE COURT: MR. BINNALL: Well, to write the code. THE COURT: You don't have a code right at the moment. You would have to write something? MR. That's correct. And the portion of the government's brief that talks about the money that he was. looking for is that reasonable expense for him basically to do nothing for that period of time but write code to install in order to take the data from?and put it in a way that the government will see the logged metadata involved. THE COURT: All right. I think I understand your position. I don't think you need to argue this motion to unseal. This is a grand jury matter and part of an ongoing and any motion to unseal will be denied. MR. If i oeuld have the Court?s attention just on one issue of the nondisolosure provision of this. And I understand the Court's position on this, but there is other privileged communications if the Court would be so generous as to allow me very.briefly to address that issue? There?s other First Amendment considerations at issue with not necessarily just the sealing of this, but what Tracy L. ?afestfell Case Document 36-26 Filed 02/24/16 Page 10 of 19 Page D# 795 Case Document 11-18 Filed 09/20/13 Page 12 of 16 PageID# [ml .1: (J1 Ox p.41 disclosing the target, 180 UNDER SEAL 2 .5. .. REDACTED Mr. Levison can disclose and to whom he may disclose it. The First Amendment, of course, doesn't just cover speech and assembly, but the right to petition for redress ef grievances. We're talking about a statute here, and, honestly, a statute that is very much in the public and involving issoee that are currently pending before Congress. I think the way that the order currently-is written, besides being THE COURT: You're talking about the sealing ordex? MR. BINNALL: I'm talking about the sealing order and the order that prohibits Mr. Levison from disclosing any information. Now, we don?t want to disclose we have no inten:ion_ H: but we would like to be able to, or instance, talk to members of the legislature and their staffs about rewriting this in a way that's THE No. This is an ongoing oriminal investigation, and there's no leeway to disclose any infoxmetion about it. MR. BINNALL: And so at that point it will remain with only Mr. Levison and his lawyers, and we'll Keep it at that. THE COURT: Let me hear from Mr. trump. Is there some way we can work this out or something that I can do with an order that will help this or what? MR. TRUMP: I don?t believe so, Your Honor, because Yracy L. ?estfeil OCR-UEQCIEDVR Case Document 36-26 Filed 02/24/16 Page 11 of 19 Page D# 796 Case 4 Document 11-18 FHed 09/20/13 Page 13 of 16 PageID# 181 REDACTED you've already articulated the reason why is that anything done by Mr. Levieon in terms of writing code or whatever, we have to trust Mr. Levison that we have gotten the information that we were entitled to get since June 28th. He?s had every opportunity to propose solutions to come up with ways to address his concerns and he simply hasn't. We can assure the Court that the way that this would operate, while the metadata stream would be captured by a toe device does not download, does not store, no one device, looks at it. It filters everything, and at the back end of the filter, We get what we're required to get under the order. So there's no agents looking through the 400,000 Other bits of information, customers, whatever. 40 one looks a: that, no one stores it, no one has access to it. All we?re going to look at and all we're going to keep is what is celled for under the pen register order, and that?s all we?re asking this Court to do. THE COURT: All right. Well, I think that's reasonable. So what is this before me for this morning other than this motion to quash and unseel which I've ruled on? MR. TRUMP: The only thing is to order the production of the keys, which just THE COURT: Hasn?t that already been done? There?s a subpoena for that. NR. TRUMP: There?s a search warrant for it, the motion Tracy L. 1465125613. OCR-USDCIEDVA Case Document 36-26 Filed 02/24/16 Page 12 of 19 Page D# 797 Case Document 11-18 Filed 09/20/13 Page 14 of 16 PageID# $4 24 In .-- (S. 182 UNDER SEAL I REDACTED ?0 to quash. THE COURT: Search warrant. MR1 TRUMP: Excuse me? THE COURT: I said subpoena, but I meant search warrant. Mk. TRUMP: We issued both, Your Honor, but Your Honor authorized the seizure of that information. And we would ask the Court to enforce that by directing Mr. Levison to turn over the keys. If counsel represents that that will occur, we can not waste any more of the Court?s time. If he represents that Mr. Levison will not turn over the keys, then we have to discuss what remedial action this Court can take to require compliance with that order. THE COURT: Well, I will order the production of those of those keys. Is that simply Mr. Levison or is that the corporation as well? MR. TRUMP: That's one and the same, Your Honor. Just so the record is clear. We understand from Mr. Levison that the keys were purchased commercially. They're not somehow custom crafted by Mr. Levison. He buys them from a vendor and then they're installed. THE COURT: Well, I will order that. you will Tracy L. Hustfall OCR-USCCXEEVA Case Document 36-26 Filed 02/24/16 Page 13 of 19 Page D# 798 Case Document 11-18 Filed 09/20/13 Page 15 of 16 PagelD# 183 UNDER SEAL :4 REDACTED present an order to me, I'll enter it later on. MR. TRUMP: Thank you. MR. Thank you, Your Honor. Rs far as time frame goes, my client did ask me if the Court did order this if the Court could give him approximately five days in order to actually physically get the keys here. And so it will be or just some sort of reasonable time frame to get the keys here and in the government's hands. He did ask me to ask exactly the manner that those are to be turned over. MR. TRUMP: Your Honor, we undeIStand that this can be done almost instantaneously, as soon as Mr. Levison makes contact with an agent in Dallas, and we would ask that he be given 24 hours or less to comply. This has been going on for a month. THE COURT: Yeah, I don't think 24 ?w 24 hours would be reasonable. Doesn't have to do it in the next few minutes, tut I would think something like this, it's not anything he has to amass or get together. It's just a matter of sending something. So I think 24 hours would be reasonable. MR. BINNALL: Yes. Thank you, Your Honor. THE COURT: All right. And you'll present me an order? MR. TRUMP: We will, Your Honor. Thank you. All right. Thank youvsll, and we'll ?1 COURT: 1? adjourn until or stand in recess till 3 o'clock. Well, Tracy Westfall OCR-USDCIEDVE. Case Document 36-26 Filed 02/24/16 Page 14 of 19 Page D# 799 Case Document 11-18 Filed 09/20/13 Page 16 of 16 PagelD# Fl \3 KO .4 12 13' (J1 184 UNDER SEAL 15 REDACTED recess till 9 o?clock tomorrow morning. 'k (Proceedings concluded at 10:25 CERTIFICATION I certify, this 19th day of August 2013, that the foregoing is a correct transcript from the record of proceedings in the abovewentitled matter to the best of my ability. Tracy Westfalij RPRK ig?s, CCR no war-xv 5.5- Case Document 36-26 Filed 02/24/16 Page 15 of 19 Page D# 800 Case Document 11-19 Fiied 09/20/13 Page 1 of 3 PagelD# 185 REDACTED EXHIBIT 19 Case Document 36-26 Filed 02/24/16 Page 16 of 19 Page D# 801 Case Document 11-19 Filed 09/20/13 Page 2 of 3 PlageID# 186 REDA CTED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA - Alexandria Division IN THE MATTER OF THE UNDER SEAL APPLICATION OF THE UNITED AUG 7mg STATES OF AMERICA FOR AN ORDER NO. AUTHORIZING THE USE OF A PEN it: CLERK. us DISTRICTCGURI AND TRACE DEVICE ?mm ON AN ELECTRONIC MAIL ACCOUNT SEIZURE OF INFORMATION IN THE MATTER OF THE SEARCH AND ASSOCIATED WITH No. IS STORED AT PREMISES CONTROLLED BY LAVABIT LLC In re Grand Jury No. 13-1 ORDER DENYING MOTIONS This matter comes before the Court on the motions of Lavabit LLC and Leda: Levinson, its owner and operator; to quash the grand-jury subpoena and search and seizure warrant compelling Lavabii LLC to provide the govemment with keys to facilitate the installation and use of a. pen register and trap and trace device, and,(2) meal court records and remove a non-disclosure order relating to these proceedings. For the reasons stated from the bench, and as set forth in the government?s response to the moti one, it is hereby I ORDERED that the motion to quash and motion to unseat are It is further ORDERED that, by 5 pm. CDT on August 2, 2013, Lavabit LLC and Leda: Levison shall provide the government with?w keys and any other ?infommtion, facilities, and technical assistance necessary to accomplish the 'insmliation and useofthe pen/trap Case Document 36-26 Filed 02/24/16 Page 17 of 19 Page D# 802 Case Document 11?19 Filed 09/20/13 Page 3 of 3 PagelD# 187 REDACTED c? as required by the July 16, 2013 seizure wan-ant and the June 28, 2013 register order. devic It is further ORDERED that this Order shall min under seal until timber order of this (30an Claude M. Hilton United States District Judge Alexandria, Virginia August 1* 2033 Case Document 36-26 Filed 02/24/16 Page 18 of 19 PageI-D# 803 Case Document 11?20 Filed 09/20/13 Page 1 of 13 PageiD# 1% REDACTED EXHIBIT 20 Case Document 36-26 Filed 02/24/16 Page 19 of 19 Page D# 804 Case Document 11?20 Filed 09/20/13 Page 2 0f 13 PagelD# 189 REDACTED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE THE UNDER SEAL I.) or THE UNITED STATES or AMERICA FOR AN ORDER AUTHORIZING THE USE or: A REGISTERJTRAP AND TRACE DEVICE. ON AN ELECTRONIC MAIL ACCOUNT U.S. martian C?i??l No. 1 SEIZURE OF INFORMATION ASSOCIATED WITH No. 1:138W52?l HAT IS STORED AT CONTROLLED THE MATTER or THE SEARCH AND BY LAVABIT LLC In re Grand Jury No. l3~l MOTION FOR SANCTIONS The United States, through the undersigned counsel, pursuant to Title 18, United States Code, Section 401 hereby moves for the issuance of an order imposing sanctions on Lavabtt LLC and Laclar Levison, its owner and operator, fer Lavabit's failure to comply with this Coort?s order entered August 1, 2013. In support of this motion, the United States represents: 7 I. At the hearing on Augum l, 20l3, this Court directed Lava-bit to provide the government with the keys necessary fer the operation of a pen and trace Order entered Junc?lS, 2013. Lavabit was Ordered to provide those keys by 5 pm. on August 2, 2013. See Order Denying Motions enteer August 2, 2013. 2. At approximately 1:30 pm. CDT on Augusr 2, 2013, Mr. Levison gave the FBI a printout of what he represented to be the keys needed to operate the pen register. This Case Document 36-27 Filed 02/24/16 Page 1 of 17 Page D# 805 Case Document 11-20 Filed 09/20/13 Page 3 of 13 PagelD# 190 a REDACTED I printout, in what appoars to bc 4-point typo, consists of 11 pagcs of largely illcgiblc characters. I See Attachment A. (The attachment was created by scanning the document provided by Mr. Lc'trison'. the original document was described by the Dallas FBI agents as clearer than the scanned copy but illegible.) Moreover, each of the five contains 512 individual characters - or a total of 2560 characters. To make use of these keys, the FBI would have to manually input all 2560 characters, and one incorrect keystroke in this taborious proccss would render the FBI collecrion system incapable of collecting, data. 3. At approximately 3:30 (2:30 pm. CDT), the undersigned AUSA contacted counsel for Lavabit LLC and Mr. Levison and informed him that the hard copy format for receipt of the keys was unworkable and that the would need the: produced in electronic format. Counsel responded by email at 6:50 p.m. EDT stating that Mr. chison ?thinks? he can have an electronic version or? the keys produced by calenday, August 5. 20 3. 4. On August 4, 2013-, the undersigned AUSA sent an c-?t?nail to counsel for Lavabit LLC and Mr. Levison stating that we expect to receive an electronic version of the keys by 10:00 tun. CDT on Monday, AuguSI 3, 2013. The c?mail indicated-that we expect the keys to be produced in FEM format, an industry standard ?le format for digitally representing SSL, keys. See Attachment B. The c?mail further stated that the preferred medium for receipt of those keys would he a CD to the Dallas of?ce of the FBI (with which Mr. chison is familiar). The undersigned AUSA informed counsel for Lavahit LLC and Mr. Levison that the. would seek an imposing sanctions if we did not the keys in electronic format by Monday moming. .2- Case Document 36-27 Filed 02/24/16 Page 2 of 17 Page D# 806 Case Document 11-20 Filed 09/20/13 Page 4 of 13 PageiD# 191 REDACTED The government did not receive the cleatronic keys as rcqucswd. The undersigned ALESA spoke with counsel for Lavabit and Mr. Levison at approximately 10:00 am. this morning. and he stated that Mr. Levison might be able to produce the keys in eiccwonic format by :3 pm. on August 5, 2013. The undersigned AUSAV told connect that was not accemablc given that it should take Mr. Levison 5 to 10 minutes to put the keys onto a CD in FEM fonnat. The AUSA told Counsel that if there was some reason why it cannot be accomptished sooner, to iet him know by 1 1:00 am. this morning. The government has not received an answer from counsel. 6. The government therefore moves the Court to impose sanctions 0n Lavabit LLC and Mr. Levison in the amount of $5900 per day beginning at noon (EDT) on August 5, 2013, and continuing each day inthc same amount untilLavz?tbit LLC and Mr. Levison comply with this Court?s ordets. 7. As noted, Attachment A to this motion is a copy of the: printout provided by Mr. Lovison on August 2, 2013. Attachment is a more detaiied cXplanntiott of how these keys can be: git'cn to the FBI in an cleatronic format. Attachment to this motion is a proposed order. Case Document 36-27 Filed 02/24/16 Page 3 of 17 Page D# 807 Case Document 11-20 Filed 09/20/13 Page 5 of 13 PagelD# 192 REDACTED S. A copy of this motion, ?led under seal, was delivered by email to counsel for Lavabit LLC on August 3, 2033. Respectfully submitted, Neil H. MacBridc iled States Attorne By: United States Attomcy' ?cc Justin W. Williams US. 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IL p; mJ-n H157 ?I'm 5122414; 1 ?(1359333.- . awn-farm: '?ai?il'is?agi?m?e?d?f??uhqn a 1:2: i: Li?n?: V.-: .T-ym? m?rdv??ma? camera-"em Mai-ff: 5m :2 mama-2; u: It. 3.5 1? 1:1 .ma?zemrdaasm 2.. aim a" -- was 3.- s13; - 7nd")! .?11?4?150'5- - 594.31)? Qdyi'JE'bin-m t! M1 Mi". 13""!3 . I?Ih'li- 4-11!? 3" - . . in .spiigo-W - I, .: .25. L, n?lz? . 2 2 if?wf?zgi?e?gzi. ?1 hm?: 2' inf-?5?: r112: :1 ?Vina: "fur. ?'v'Jlnvi?hr'V'?y3h'Vl - . 1?03?? ri-I. v. r. (@3124: ??milwm??ri?r?lndi?fh4l {681151 I- . 2?an . glow-grin? am {at Hliizv'Eu?h? (- . . .- II.- . .4 ?iai5l - . v.4 Hf." r: ?zu?'rf'x hindu?aiimi?i-3395. .. ma - .3151)? 1} 3.17:1 IE . a Er '5 .m'f?w ?ar?nuuryz: . t- w- mar-4n". ?13. mag-:6: war-Myst 7.45. 1- :uq .m-f?u?Qi ?r 3: 13:5:Case Document 36-27 Filed 02/24/16 Page 10 of 17 Page D# 814 Case Document 11-20 Filed 09/20/13 Page 12 of 13 PagelD:Ilvz-i- -. .7. u: .11 21,. ?Te-'25 If). l? a 'f'y .1?53 I 1 .I ?x .?1'3ir? "-41 ?an. :31 xi ?nal, Jim-mm 1m max-~me nu my? (1.93 1} -p?ulw?iv12 'w f; if: tilunldeng??huurn-- ?iv-14!. My. w- me at mug-1a: . a 1391.?; that-2k . :7 . 1.5] 1 Ii MT: 0:413:11?iv?fi?vl??f? . r] - i?r'A" .n . "73' ?181' 11? I ?av-g. -Ih - 1- - Irv. I rr? 1.2.8.1.: on . Case Document 36-27 Filed 02/24/16 Page 11 of 17 PagelD#?815 Case Document 11?20 Filed 09/20/13 Page 13 of 13 Page D# 200 REDACTED NYTACHMEN Lavabit uses EMS-bit Secure Socket Layer (SSL) certi?cates purchased From GoDaddy to communication bentrecn users and its server. SSL employs publicvkey in which both the sender and receiver each have two mathematically linked keys: 3 ?public? key and a ?private? key. ?Public? keys are published, but ?private? keys are not. in this circumstance, a Lavabit customer uses Lavabit's published public key to initiate an email session with Lavabit over the intemct. Lavabit?s servers th?cn this traffic using their private key. The only way to this traffic is through the usage of this private key. A SSL certificate is another name for a publiShed public key. To obtain a SSL certificate from GoDaddy, a user needs to first generate a 2048-hit private key on his/her computer. Depending on the operating system and web serve-r- used, there are. multiple ways to generate a private key. One of the more popular methods is to use a freely available command-line tool called This generation also creates a certi?cate signing request tile. The user sends this File to the SSL generation authority (tag. GoDaddy) and GoDaddy then sends back the SSL certi?cate. The private key is not Sent to GoDaddy and should be retained by the user. This private key is stored-on the user?s web server to permit of internet traffic, as described above. The FBl?s collection system that will be installed to implement the PRl'l'l' also requires the private key to be stored to Lavabit email and internet traf?c. This traffic will then be ?ltered for the target email address specified in the order. Depending on how exactly the private key was ?rst generated by the user, it itself may be and protected by a password supplied by the user. This additional level ol?security is useful if, for example, a backup c0py ot? the private key is stored on a CD. If that CD was lost or stolen, the private key would not be compromised because a password would be required to ccess it. l-lowever, the user that generated the private key would have supplied it at generation time and would thus have knowledge of it. The tool described above is capable of private keys and converting the keys to a format with a simple, well~documcnted command. The I?Bl's collection system and most web servers requires the key to be stored in a format. A 2048~bit key is composed of 512 characters. The standard practice of exchanging private SSL keys between entities is to use some electronic medium (cg, CD or secure inter-net exchange). SSL keys are rarely, if ever, exchanged verbally or through print medium due. to their long length and possibility of human error. Mr. Levison has previously stated that Lavabit actually uses ?ve separate public/private key pairs, one for each type of mail protocol used by Lavabit. FEM is an induStry-standard file format for digitally representing SSL keys. PEM files can easily be created using the tool described above. The preferred medium for receiving these keys would be on a CD. Case Document 36-27 Filed 02/24/16 Page 12 of 17 Page D# 816 Case Document 11-21 Filed 09120I13 Page 1 of 3 PagelD# 201 REDACTED - EXHIBIT 21 Case Document 36-27 Filed.02/24/16 Page 13 of 17 Page D# 817 Case Document 11-21 Filed 09/20/13 Page 2 of 3 PageID# - 202 REDACTED TN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING THE USE OF A PEN AND DEVICE ON AN ELECTRONIC MAIL ACCOUNT Cliff. 11,3. DISTRIC I I VIRGINIA N0. SEIZURE OF ASSOCIATED WITH Not I-IAT IS STORED AT PREMISES CONTROLLED IN THE MATTER OF THE SEARCH AND BY LAVABIT LLC I In re Grand Jury so. 13-?1 ORDER This matter comes before the Court on the motion of the government for sanctions for Elation: to comply with this Court?s order entered August 2, 2013. For the reasons stated in the government?s motiozt, and pursuant to Title 18, United States Code, Section 401, it is hereby ORDERED that the motion for sanczions is granted; it is further ORDERED that, if the keys necessary to implement the pen- register and trap and trace device are not provided to the FBI in FEM or equivalent electronic Format: by noon (CDT) on August. 5, 2013. a fine offivc {heusand dollars shall be imposed on Lavabit LLC and Mr. Levison; it is further ORDERED that, if the keys necessm?y to implement the pen register and trap and trace device are not provided to the FBI in FEM or equivalent electronic 5? 535??) Case Document 36-27 Filed 02/24/16 Page 14 of 17 Page D# 818 Case Document 11-21 Filed 09/20/13 Page 3 of 3 PagelD# 203 REDACTED format by noon (CDT) each day thereafter beginning August 6, 2013, a ?ne of ?ve momma-?1 dollars shall be imposed on Lavabit LLC and Mr. ?chison for each day of non? compliance; and it is ?m?ner ORDERED that the government?s motion for sanctions and this Order shall remain under seal until further order of this Court. Claude M. Hilton United States District Judge Alexandria, Virginia August 5" ,2013 Case Document 36-27 Filed 02/24/16 Page 15 of 17 Page D# 819 Case Document 11-22 Filed 09/20/13 Pagetl of 5 PagelD# 0 204 REDACTED EXHIBIT 22 Case Document 36-27 Filed 02/24/16 Page 16 of 17 Page D# 820 Case Document 11-22 Filed 09/20/13 Page 2 of 5 PagelD# 205 REDACTED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE FILED UNDER SEAL APPLICATION OF THE UNITED STATES AUTHORIZING THE USE OF A PEN AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT No. IN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION ASSOCIATED WITH NO. HAT IS STORED AND CONTROLLED AT PREMISES CONTROLLED BY LAVABIT LLC NOTICE OF APPEAL Notice is hereby given that Lavabit LLC (?Lavabit?) and Mr. Ladar Levison Levison?) in the above named case, hereby appeal to the United States Court of Appeals for the Fourth Circuit from the Orders of this Court entered on August 1, 2013 and August 5, 2013. LAVABIT LLC LADAR LEVISON By Counsel nley 83 Binnall, PLLC 1 387 Main Street, Suite 201 Fairfax, Virginia 22030 (703) 229-0335 - Telephone (703) 537?0780 - Facsimile jbinnall@bb1awonline.com Counsel for Lavabit LLC I?gZ/sc R.Binf1all,VSB# 79292 Case Document 36-27 Filed 02/24/16 Page 17 of 17 Page D# 821 Case Document 11-22 Filed 09/20/13 Page 3 of 5 Page D# 206 REDACTED Certi?cate of Service I certify that on this 15th day of August, 2013, this Notice of Appeal was emailed and mailed to the person at the addresses listed below: United States Attorney?s Of?ce Eastern District of Virginia 2100 Jamieson Avenue Alexanirial VA 22i 14 esseMinnall Case Document 36-28 Filed 02/24/16 Page 1 of 15 Page D# 822 Case Document 11-22 Filed 09/20/13 Page 4 of 5 PagelD# 207 REDACTED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division FILED UNDER SEAL In re Grand Jury No. 13~1 NOTICE OF APPEAL Notice is hereby given that Lavabit LLC (?Lavabit?] and Mr. Ladar Levison (?Mn Levison?) in the above named case, hereby appeal to the United States Court of Appeals for the Fourth Circuit from the Orders of this Court entered on August 1, 2013 and August 5, 2013. LAVABIT LLC. LADAR LEVISON By Counsel Je R. B'i 1, vsm: 79292 nley all, PLLC 1 387 Main Street, Suite 201 Fairfax, Virginia 22030 [703) 229-0335 - Telephone (703) 537-0780 - Facsimile jbinnall@bblawonline.com Counsel for Lavabit LLC Case Document 36-28 Filed 02/24/16 Page 2 of 15 Page D# 823 Case Document 11-22 Filed 09/20/13 Page 5 of 5 Page D# 208 REDACTED Certi?cate of Service I certify that on this 15th day of August, 2013, this Notice of Appeal was emailed and mailed to the person at the addresses listed below: Umt States Attorney Eastern District of Virginia 2100 Jamieson Avenue I . A Case Document 36-28 Filed 02/24/16 Page 3 of 15 Page D# 824 Case Document 11?23 Filed 09/20/13 Page 1 of 3 Page D# 209 REDACTED EXHIBIT 23 Case Document 36-28 Filed 02/24/16 Page 4 of 15 Page D# 825 Case Document 11-23 Filed 09/20/13 Page 2 of 3 PagelD# 210 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE FILED UNDER SEAL APPLICATION OF THE UNITED STATES AUTHORIZING THE USE OF A PEN TRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT N0. IN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION ASS CI ED I HAT IS STORED AND CONTROLLED AT PREMISES CONTROLLED BY LAVA-BIT LLC NOTICE OF APPEAL Notice is hereby given that Lavabit LLC (?Lavabit?) and Mr. Ladar Levison ("Mn Levison?) in the above named case, hereby appeal to the United States Court of Appeals for the Fourth Circuit from the Orders of this Court entered on August 1, 2013 and: August 5, 2013. LAVABIT LLC LADAR By Counsel R. Binne? 834? 79292 o?nley 81. Binnall, PLLC 0387 Main Street, suite 201 Fairfax, Virginia 22030 (703) 229-0335 - Telephone (703) 537-0780 - Facsimile jbinnall@bblawonline.com Counsel for Lavabit LLC Case Document 36-28 Filed 02/24/16 Page 5 of 15 Page D# 826 Case Document 11-23 Filed 09/20/13 Page 3 of 3 Page D# 2 211 Certi?cate of Service on this 16th day of August, 2013, this Notice of Appeal was I certify the . emailed and mailed to the person at the addresses llsted below: United States Attorney?s Of?ce Eastern District of Virginia 2100 amieson Avenue Alexandria VA 223 14 z, #5sz: Binnall Case Document 36-28 Filed 02/24/16 Page 6 of 15 Page D# 827 Case Document 11?24 Filed 09/20/13 Page 1 of 4 PagelD# 212 REDACTED EXHIBIT 24 Case Document 36-28 Filed 02/24/16 Page 7 of 15 Page D# 828 Case Document 11?24 Filed 09/20/13 Page 2 of 4 PagelD# 213 Lavabit Onlinc Media Links Democracy New Interview: Democracy Now Interview Transcript: Huff Post Interview: RT Interview: Ron Paul Interview: Case Document 36-28 Filed 02/24/16 Page 8 of 15 Page D# 829 Case Document 11-24 Filed 09/20/13 Page 3 of 4 PagelD# REDACTED 214 Case Document 36-28 Filed 02/24/16 Page 9 of 15 Page D# 830 Document 11-24 Filed 09/20/13 Page 4 01?4 PagelD# 215 REDACTED I Case - - Case Document 36-28 Filed 02/24/16 Page 10 of 15 Page D# 831 Document 11-25 Filed 09/20/13 Page 1 of 3 Page D# Case 216 EXHIBIT 25 Case Document 36-28 Filed 02/24/16 Page 11 of 15 Page D# 832 Case Document 11?25 Filed 09/20/13 Page 2 of 3 PageID# 217 REDAC TED IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT or VIRGINIA ALEXANDRIA DIVISION I IN THE MATTER OF THE NO. l:13 EC 297 APPLICATION OF THE UNITED STATES AUTHORIZING THE USE OF A PEN AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT IN THE MATTER OF THE SEARCH NO. 1:13 SW 522 AND SEIZURE OF INFORMATION ASSOCIATED WITH THAT IS STORED AND CONTROLLED AT PREMISES CONTROLLED BY LLC IN RE GRAND JURY SUBPOENA NO. 13-1 UNDER SEAL PROPOSED ORDER The United States has proposed partially unsealing records in this matter due to public disclosures made by Ladar Levison and Lavabit, LLC and for the purpose of creating a public record for Mr. Levison?s appeal. The Court has considered the original sealing orders, the motions in support of the original sealing orders, the gOVernment?s page motion to unseal certain documents, and the prior pleadings of Mr. Levison, and hereby ?nds that: (1) the government has a compelling interest in keeping certain information in the documents sealed, and the government has proposed redacted versions of the documents that minimizes the information under seal; (2) the government?s interest inkeeping the redacted material sealed outweighs any public interest in disclosure; and Case 1:13-s - - 00522 CMH Document 36-28 Filed 02/24/16 Page 12 of 15 PagelD# 833 Case Document 11-25 Filed 09/20/13 Page 3 of 3 PagelD# 218 REDACTED (3) having considered alternatives to the proposed redactions none will adequately protect that interest; it is hereby ORDERED that the redacted versions of certain records ?led in the above captioned matter are partially unsealed. The unsealed records are attached to this Order. To the extent any such record is covered by a non-disclosure Order issued pursuant to 18 U.S.C. 2705(b), the non-disclosure obligation does not apply to the unsealed, redacted version of the document. The Clerk of the Court may publicly release the redacted version of any of the records attached to this Order. Any record not attached to this Order, as well as the unredacted copies of any record tiled in the above-captioned matter, including the goverrunent?s ex parte, sealed Motion to Unseal and Statement of Reasons will remain sealed until further Order of the Court. The Honorable Claude M. Hilton United States District Judge Date: Alexandria, VA Case Document 36-28 Filed 02/24/16 Page 13 of 15 Page D# 834 Document 11-26 Filed 09/20/13 Page 1 of 3 Page D# Case 219 REDA CTED Case Document 36-28 Filed 02/24/16 Page 14 of 15 Page D# 835 Case Document 11?26 Filed 09/20/13 Page 2 of 3 PagelD# 220 REDACTED IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION IN THE MATTER OF THE NO. 1:13 EC 297 APPLICATION OF THE UNITED STATES AUTHORIZING THE USE OF A PEN AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT IN THE MATTER OF THE SEARCH NO. 3 SW 522 AND SEIZURE OF INFORMATION ASSOCIATED WITH THAT IS STORED AND CONTROLLED AT PREMISES CONTROLLED BY 1 IN RE GRAND JURY SUBPOENA NO. I3-l UNDER SEAL PROPOSED ORDER The United States has proposed partially unsealing records in this matter due to public disclosures made by Ladar Leviscn and Lavabit, LLC and for the purpose of creating a public record for Mr. Levison?s appeal. The Court has considered the original sealing orders, the motions in support of the original sealing orders, the government?s 93; page motion to unseat certain documents, and the prior pleadings of Mr. Levison, and hereby ?nds that: . (I) the government has a compelling interest in keeping certain information in. the documents sealed, and the government has proposed redacted versions of the documents that minimizes the information under seal; (2) the govemment?s interest in keeping the redacted material sealed outweighs any public interest in disclosure; and Case Document 36-28 Filed 02/24/16 Page 15 of 15 PagelD# 836 Case Document 11?26 Filed 09/20/13 Page 3 of 3 PagelD# 221 REDACTED (3) having considered alternatives to the proposed redactions none will adequately protect that interest; it is hereby ORDERED that the redacted versioos of certain records ?led in the above captioned matter are partially unsealed. The unsealed records are attached to this Order. To the extent any such record is covered by a non-disclosure Order issued pursuant to 18 U.S.C. 2705(b), the non-disclosure obligation does not apply to the unsealed, redacted version of the document. The Clerk of the Court may publicly release the redacted version of any of the records attached to this Order. Any record not attached to this Order, as well as the unredacted copies of any record ?led in the above-captioned matter, including the government's ex parte, sealed Motion to Unseal and until fl ther Order ofthc The Honorable Claude M. Hilton United States District Judge Date: Alexandria, VA Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 1 of 82 PageID# 837 ^^^CTED IN TME UMTBi) S TATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION a m L i2 2013 CICIK.US. OlSTKiC! COURI IN Tl-IR MATTER OF THE APPLICATION OF THE UNITED STATES AUTHORIZING THE USE OF A PEN REGISTER/TRAP AND TRACE DEVICE ON AN ELECTRONIC MAII. NO, 1:13 EC 297 ACCOUNT IN THE MATl'ER OF THE SEARCH AND SEIZURE OF INF0R.MAT10N NO. 1:13 SW 522 ASSOCIATED W'lTH THAT IS STORED AND CONTROI.LED AT.PREMISES CONTROLLED BY LAVABIT LLC IN RE GRAND JURY SUBPOENA NO, 13-1 UNDER SEAL ORDER The United States has proposed partially unsealing records in this mailer due to public disclosures made by LadarLevison and Lavabil, LLC and for the puipose of creating a public record Ibr Mr, Levison's appeal. The Court has considered the original scaling orders, the motions in support of the original sealing orders, the government's ex parte motion to unseal certain dociimems, and ihe prior pleadings of Mr. Levison, and hereby fmds that: (1) the government has a compelling interest in keeping certain infomuuion in the doeuments sealed, and the government has proposed redacted version.^ of the documents that mhiimi/.es the information under seal; (2) the goverrunent's interest in keeping the redacted material sealed outweighs any public interest in disclosure; and Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 2 of 82 PageID# 838 ^^^CTED (3) having considered alternatives to the proposed redactions none will adequately protect that interest; it is hereby ORDERED that the redacted versions ofcertain records filed in the above captioned matter are partially unsealed. The unsealed records are attached to this Order. To the extent any such record is covered by anon-disclosure Order issued pxirsuant to 18 U.S.C. §2705(b), the non-disclosure obligation does not apply to the unsealed, redacted version ofthe document. The Clerk of the Court may publicly release the redacted version of any of the records attached to this Order. Any record not attached to this Order, as well as the unredacted copies ofany record filed in the above-captioned matter, including the government's exparte, sealed Motion to Unseal and Statement ofReasons will remain sealed until further Order ofthe Court. The Honorable Claude M, Hilton United States District Judge Date; 2. Alexandria, VA W Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 3 of 82 PageID# 839 Case l;13-ec-00297-TCB *SEALED* Document 11-1 Filed 09/20/13 Page 1 of 5 PagelD# 50 ^t)A EXHIBIT 1 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 4 of 82 PageID# 840 Case l:13-ec-00297-TCB *SEALED* Document 11-1 Filed 09/20/13 Page 2of 5PagelD# 51 REDACTED rp I"" UNITED STATES DISTRICT COURT Fi FORTI-tE EASTERN DISTRICT OF VIRGINIA m RK APPLICATION OF THE ) ) MISC. NO. 1:13 EC an order pursuant TO ISU.S.C. § 2703Cd) ^ ) )' ) Plied Under Seal UNITED STATES OF AMERICA FOR « '-I i ^ r r . I0 . ORDER The United States has submitted an application pursuant to IS U.S.C. §2703(d). requesling thai the Court issue an Order requiring Lavabil LLC, an electronic communicntions service provider and/or aremote computing service locatcd in Dallas, TX, to disclose ihu records and other information described in .Mtachment Ato this Order. The Court finds that the United States has offered specific and articulabie facis showing that there arc reasonable grounds to believe that the records or other infonnation sought are relevant and material to an ongoing criminal investigation. Tlie Court detennines iliat there is reason to believe thai notification of the existence of this Order will seriously jeopardize the ongoing inveslignUon. including by giving targcls an opportunity to Dee or continue flight from prosecution, destroy or tamper with cviden.cc. change paliems ofbehavior, or notify confcdcrntes. See 18 U.S.C. §2705(bX2), (3), (5), IT IS THEREFORE ORDERED, pureuanl to 18 U.S.C. § 2703Cd), that (.^avabit MX shall, within ten days ofthe date ofthis Order, disclose to the United States the rccords and other information described ia Attachment A to this Order. IT IS FURTHER ORDERED that Lavnbit LLC shall not disclose the existence of the application ofthe United States, or tlie existence ofthis Order of the Cbun, to the subscribers of the accouni(s) listed in Attachment A, or to any other person, unless and until otherwise j-r- 'j,;- Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 5 of 82 PageID# 841 Case l:13-ec-00297-TC8 *SEALED* Document 11-1 Filed 09/20/13 Page 3 of 5 PagelD# 52 REDACTED authorized 10 do so by the Court, exccpi ihai Lavubit LLC may dUclose [his Ordur lo an aiiorncy for Lavab.it LLC for the purpose ofreceiving luga) advice. IT IS FURTBfiR ORDERED that the application and Ihis Order are scaled until otherwise ordered by ih« Court. John F. Anderson Uciiicd Stales Magistraic Judge Dale A TPU(? COPY, Ti-.ii FE; C-LuSKlUS. C.Gl'RiO'l- rni !F:.i I'V-fO/ Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 6 of 82 PageID# 842 Case l:13-ec-00297-TCB ^SEALED* Document 11-1 Filed 09/20/13 Page 4of 5PageiD#53 redacted attachment a I. The Accouot(s) Tlie Order applkstoc^a^^ inform.iiion associated with the following em;iil accouht(s): II. Records and Oihcr Tnformaiion to Be Disclosed Lavabit LLC is required lo disclose the following records and other information, ifuvnilablc to iho United Smlcs for cach accounl or identifier Usted in Part Iol ihis AttacluneiU ( Account ). for the time period from inception to the present. A. The folltiwing information tiboul the customers or subscribers of the AccOunl; 1. 2. 3. 4 Names (inchiding subscriber names, user naincs, and scrcsin names); Addresses (including mailing addresses, residential addresses, business addresses, and c-mail addresses); Local and long distance telephone conncccion records; Records ofsession times and diuations, and the temporarily assigned ncUvork addresses (such as Internet Frolocol ("IP") addresses) associated with those sessions; 5. Length ofservicc (including start date) and types of ser\'icc utilized; 6. Telephone or instrument numbers (inchiding MAC addresses): 7" Other subscriber numbers or identities (including the registration Internet Proiocol ("IF") address); and 8. Means and source ofpayment for such scrvice (including any credit card or bank account number) and billing records. B All rccords and other information (not including the contents of communications) relating to the Account, including; 1. Records ofuser activity for each connection made to or from the Account, including log files; messaging logs; the date, time, length, and method of connections; datn transfer volume; user names; and source and destination Internet Proiocol addresses; 2. Information about each cominunicutian vscnl or received by the Account. . including the date and time ofthe communication, the method of communication, and lite source and destination of the communication (such n.s sourco and destinwion email addresses, IP addresses, and telephone numbers). Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 7 of 82 PageID# 843 3l;13-ec-00297-TCB ^SEALED* Document 11-1 Filed 09/20/13 Page 5of 5PagelD# 54 ^DACTEd CERTIFICATR OF AliTHKM'llClTY OF DOMESTIC BUSINESS RECOUPS PURSUANT TO FEDliRAJaRULEOFTCVlDENCljl 902(11) , , attest, under penallies ofpet}iir)' under ihe *♦ laws ofthe United State, ofAmcrica pursuant lo 28 U.S.C. §1746, tliat tbc information contained in this declaration is tnie and correcl. 1am employed by Lavabit LLC. and my official . 1am a aistodinn ofrecords for Lavabit LLC. I state That eaeh ofthe records attached hereto is the original record or arme duplicate of the original • record in the custody ofLavabit LLC, and that I;un the custodian of the aUached records consistingof (pagcs/CDs/kilobytes). IfUiihcr stale that: a. all rccords atlachcd to this ccrtifictue were made at or near Ibe lime ofihe occurrence of the matter set forth, by, or Iron, information transmitted by. uperson with knowledge of those matters; b. such rccords wemkept in the ordinary course of aregularly conducted business activity ofLavabit LLC; and c. such records were made by Lavabit LLC as aregular practice. Ifurther state ihat this certification is imunded to satisfy Rule 902(1!) of ihe I-ederal Rules of Evidence. Signaiure Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 8 of 82 PageID# 844 Case l:13-ec-00297-TCB '"SEALED* Document 11-2 Filed 09/20/13 Page 1of 4PagelD# 55 ^t>ACTED EXHIBIT 2 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 9 of 82 PageID# 845 Case l:13-ec-00297-TCB ^SEALED* Document 11-2 Filed 09/20/13 Page 2of 4PagelD# 56 redacted IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTIUCT OF VlRGINiA Alexandria Division m -Vm MATTER OF THE APl'LICATION OFTHE UNITED STATES OF A>ffiRJCA FOR AN ORDER AUTHORIZING TITE 1>JSTALLATI0N AND USB OF A PEN ("Under Seal1 1:13 ECS^n REGlSTElirrRy\P AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT ORDER This matter having come before ihe Court purauam to an AppUcation under 18 U.S.C. §3122, by Attoniey. an aliomcy for the <3QvemmeiH as defined by Fed. R. Crim. P. l(b)(i). requesting an Order under 18 U.S.C. §3123, duUionzmg • the instfillmion and use of npen register and the use of atrap and trace device or process C>cn/trapdevicc") on till electronic. comTnunicationa being sent ftora or senttotheac^^ associated is»giste>od lo subscriber uvabiu LLC (hcreinntter mas (he "SUBJECT ELECTRONIC MAIL ACCOUNTO. Th= Court finds that the applicant lias ccrliBotl that tltc infomiation likely to be obt.ined by such i„stallaii™ anduse is relevantlo an ongoingertatoli^^ PO^Wo violation^ of IS U.S.C. §§ 641.793Ccl)-{e), and 798Ca}(3) IT appearing ihat the inibrmalion likely to be obtained by tiie pen/trap device is relevant lo an ongoing criminal investigation of the specified offense; IT IS ORDERED, pursuant ^:o 18 U.S.C. §3123, tha, apen/trap device may be installed and used by Uvabit and the Federal Bureau of Investigation to capture aU non-conicnt dialins. routing, addressing, and signaling infomiation (as described and limited in tlic Application), sent from or sent to the SUBJECT ELECrTRONIC MAIL ACCOUNT, to record the date and lime of the initiation and rcccipl ofsuch transmissions, to rccord the duration of the irnnsnnssions, and to record user log-in data (date. lime, duraiion, and Internet Pmtocoi address ofall log-ins) on the Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 10 of 82 PageID# 846 Case l:13-ec-00297-TCB *SEALED* Document 11-2 Filed 09/20/13 Page 3of 4PagelD# 57 ^Dacted SUBJECT BLECTROHIC MAIL ACCOUNT, all for aperiod ofsixty (60) days rrom ihe date of such Order orihc date ihe monitoring equipineni becomes operalional, whichever occurs later; IT IS FURTHER ORDERED, pursuani lo IS U.S.C. §3i23Cb)(2), ihatUvabit shall furnish agcnis from Ihc Federal Bureau oflnvesiigation, forth\'.'iih, atl informntion, facilities, and iechiiical assistance necessary to accomplish ihe insiallaiion and use of Ihe pen/irap device unobtrusively and with minimum interference lo the services that are accord^ persons %vith respeci to whom the insiallaiion luid use is to take place; IT IS FURTffER ORDERED ihai the United States take reasonable steps to ensure that the moaitoring equipmcnl is nol used 10 capwre any "Subjccu" portion ofnn =leclro„io mail message, which could possibly contain content, IT IS FURTHER ORDERED that Lnvubit shall be compensated by the Federal Bureau of Investigation for reasonable expends inctirred In providing technical assisiance; IT IS FURTHER ORDERED that, in the event thai the implementing invesiigailve agency seeks tq install and use ils osvn penArap device on apackci-switehcd dam network ofa pubUe provider, the United States shall ensure that arecord isniaintained which ^vill identify: (a) any omcer(s) who installed the dcvxc and any ofT,ccr(B) who accessed the device to obtain information from the nehvork; (b) t:.e date and time the device vvas installed. Ihc dale and time the device was uninstalled. and ihe date, time, and dUffition ofeach time Ihe device is accessed to Qbiain infommlion; (c) the configuration of Uie device at the time of its installation and any subsequent modification thereof; and (d) any information wliieh has been collected by the device. To the extent that the pen/irap dcvicc can be set lo automatically record this information electronically, the record shail be m^iniained elegironically Utroughout the insiallaiion and use of U^o pcn/tnip device. Pursuant lo 18 U.S.C. §3123(a)(3)CB). as amended, such record(s) shall be provided ejuisnJinnd under seal to this Conn within 30 days oftlie termination ofthis Order. including any extensions thereof; IT IS FURTHER ORDERED, puisuam lo 18 U.S.C. § 3123Cd), that this Order and the Applicniion be sealed umil olherwisc ordered by. ihe Coun, and that copies of such Ord^r may be Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 11 of 82 PageID# 847 Case l:13-ec-00297-TCB *SEALED* Document 11-2 Filed 09/20/13 Page4of4PagelD#58 redacted furnished to the Federal Bureau of Invesiisaiion, tht; United States Attorney's Office, and Lavabil; IT IS FURTHER. ORDElUiD that Lavabil shall not disclosc the existence of the pcn/irap device, orthe exisleiicc ofthe inve-tligalion lo any person, except as necessary to efTeciuate this Order, unless or until otherwise orciercd by the Court. SO ORDRRED: T-lon. Tiwresn C, Buchanan United States M^igistrate Judge Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 12 of 82 PageID# 848 case l:13-ec-00297-TCB ^•••SEALED* Document 11-3 Filed 09/20/13 Page 1of 4PagelD# 59 EXHIBIT 3 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 13 of 82 PageID# 849 Case l:13-ec-00297-TCB*SEALED* Document 11-3 Filed 09/20/13 Page 2 of 4 PagelD# 60 ^DACTED 1) [NTiiHUNirnDSTATESDISTRICTCOUllTFORTHRrj HASTGRN DISTRICT OF VIRGINIA 1 ^fi';'T 1-^; CUi iv'-'S.C"ftT;".;orc'...>T Alexandria Division IN THF MATI ER OF THE APPLICATION {•)!•• THE UWniD STATHS OF AMERICA l-'OR AN ORDER AUTI IORIZING THE INSTAl.l.ATION AND USE OF A PEN J ) ) . ) REGISTHR/TRAP AND TRACE DEVICE ) OX AN ELECTKOMIC MAIL ACCOUNT ) (IMcj. l:13EC297 vmTlON FOR KiSTRV OF AN ORBKR TO COMPF.L The United Stales, by and ihrougli its uiuiuisiuned counsel, hereby rcquosis ilic Court cnicr anOrder direciing Lavabil, LLC, to comply with ihc Court's June 28,2013 Pciv Register/Trap ami Ti'aco Order. In support of the nioiion ihc United Stales dcckircs as loilows: L On June 28.2013, ut upproximaiclyl p.m., this Court entered an Order pursuant to 18 U.S.C. §3123 authorizing, the instaliation and useoFnpen register and (he use of a(rap and tmcc dcvico ("pcn/lnip dcvice") on all clcctroiuc comniunicutions being sent frum or sent to the mail account Thatc-niail account is eontvollcdby Lavabil, eumioneu I.y ...uvauM, LLC. In its Order, die Court found thnt the intbmmtion to be colleaed by the pen/trap device would be relevant to an ongoing criminal investigation. In addirion, the C!ourl ordered !.avabit "sliall ftimish agents from the Federal B;ireau ofinvesligadon. forthwith, all information, facilities, and technical assistance necessary to accompti-sh the installation and use of the peiu'trap device." 3. The Federal Bureau ol' Investigation served a copy of ilie Orderon Lavabil tlji:t .same {ilkmoon. .'\ representative of Lavabit staled thai it could not provide the requested inlbnnalion i>ci;au5e liicuser ofllie account had enabled Lavabii's eneiyplion services, and thus Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 14 of 82 PageID# 850 Case l:13-ec-00297-TCB*SEALED* Documentll-3 Filed 09/20/13 Page 3of4 PagelD# 61 redacted Lavabil \vo\ild not provide the requested inlbriMalioii. Tbereprescnintivcoriuvabit ijidicalcd thai Lavabil had rlie tcchniciil capability to dcerypi ihe infominiioii but ihnt Lavnbit did not u-nni to "defeat [itsj own system." 4. 1iic roprcsemaiivc on.avi\bit did not comply with the Order, and indicated he first wT.nU'd lo seek logiil advice. 5. The Pen Register and Trap iind 'i'race Act gives this Court the authorily lo order a provider to assist the ^ovemmenl in the cxeciition ofalawful pen r>;gisicr or (rap and trace order, including by providing information. Section 3122 ofTitle 18, United States Code, provides in pan; ^'An order issued under this scetion--shall dirccf, upon the requesl ofthe applie:mi. the l-nrnishingofimbrmaiiDn. fiieimies. i.nd teciiniciil assistiuice necessary to accomplish the installaiion ofthe pen register or trap and tmec device under scction 3124 of tiiis title." Section M24(a) provides. "Upon the request ofan attorney for the Oovcmnienl or an olTicer ofa law cnforccmcnL agcncy muhorizcd to install and u^e apen register under this chapter, aprovider of wire or electronic communication service... shall furnish such investigative or law culbrcen.ent officer fonhVuh all information, facilities, and technical assistance necessary lo accomplish ihc insialhuinn of the pen register unobtrusively and wiih aniinimitni of interference... ifsuch Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 15 of 82 PageID# 851 Case l;13-ec-00297-TCB''SEALED* Document 11-3 Filed 09/20/13 Page4 of 4 PagelD# 62 redacted assistance is tlii'cciod by a courl order as providctl in seciion 3l23(b){2) of this litlc." Scction 3124(b) contains a similar provisiuii governing imp luid trace orders. Wherefore, the Uniicd Suites requests an Order directing l.aveibit to comply Ibrthwith with Ihc Cowl's June 28,2013 Ordcv. Rcspcctliilly submilied. NEIL H. MACBRTDB United States Attoniey Assibiaiit United Stales Aiiorncy Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 16 of 82 PageID# 852 Case l;13-ec-00297-TCB *SEALED*' Document 11-4 Filed 09/20/13 Page 1of 3PagelD# 63 REDACTED EXHIBIT 4 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 17 of 82 PageID# 853 l-13-ec-00297-TCB *SEALED* Document 11-4 Filed 09/20/13 Page 2of 3PagelD# 64 .L redacted ' IN THE UNITED STATES DISTRICT COURT FOR THE i jiiM 2 8 ?m CLERK, u.s — ALIrXAHro- . EASTERW DlSTRtCrOF VIRGINIA Alexandria Division IN TI-IE MATTER OF THE APPLICATION OF THE U>J1TED STATES OF AMERICA ) ) FOR AN ORDER AUTHORIZING THE ) INSTALLATION AND USE OF APEN ) REG1STER/TR^\P AND TRACE DEVICE ) ON AM ELECTRONIC MAIL ACCOUNT ) (Under Seal) 1:13 EC _97 nnm?R rOMPELLlNf^ COMPLIANCE FORTHWITH WHEREAS, oh June 28, 2013, al npprosimaicly 4;00 p.m., Ihis Court cnlcrcd aii Ordtr pursuani \o 18 U.S.C. §3123 autliorizinB 'Vie installation and use ofapen register and the iise of airap and iracc device ("pcn/lrap device") on all eleclronic communiealions being sent fro.n or «ra ,0 ite declranicV mail whlch is Is ai, axi fi-maii account "hi=h t-mail .ccooni controlled by Lavabii, LLC ("Lavabii ); and WHEREAS, this Court found that the information obtained by ihe pen/trap dcvice would be relevant to an ongoing criminal invcsiigatton; and WHEREAS, the Court's Order directed thai Lnvnbii "shall furnish agents from the rcdcral Bureau of Invesueaiion, ^orth^vilh, all information, facilities, and technical assistance ncccsaary lo accomplish Ih.c inslnllmion and use of the pen/trap dcvicc; and WHEREAS, Lnvabil informed the Federal Bureau of Invcstigaiion that the user ofthe cccounl had enabled Uvabit's encryption services and thus the pen/trap device would not collect the relevant infomiaiion; and WHEREAS. Lavabii informed the FBI that ilhnd (he technological capability to obtain ihe information b\i; did not want jo "defeat {.its] ov.ti system;" '•= Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 18 of 82 PageID# 854 Case l:l3-ec-00297-TCB *SEALED* Document 11-4 Filed 09/20/13 Page 3of 3PagelD# 65 REDACTED IT IS HEREBY ORDERED that Lavabii LLC is dircctcd lo comply fodhwiih wiili ihe Court's June 28.2013 Order, and provide ihc Federal Bureau oF 1nvestisalion wUh unencrj'plcd data pursuant to ihe Order, To the exlenl any inrormatlon, facilities, or tcchnicnl assislanco are under the control of Lavabit arc needed lo provide the FBI with the unencrypted daia. La^-abit shall provide such inforrnotion, facilities, or lechnicnl assistance forthwith. Failure to comply with this Order shall subject Lavabit lo. any penalty within ihc power of i[^CWr. so 01U)ERED. f3 ' Han. Theresa C. Buchaniih'" United States Magistrate Juilgo'. Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 19 of 82 PageID# 855 Case r.l3-ec-00297-TCB *SEALED* Document 11-5 Filed 09/20/13 Page 1 of 8 PagelD# 66 redacted EXHIBIT 5 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 20 of 82 PageID# 856 Case l-13-ec-00297-TCB *SEALED* Document 11-5 Filed 09/20/13 Page 2of 8PagelD# 67 ^Dacted IN THE UNITED STATES DISTRICT COURT FOR THE E.^STERN DISTRICT OF VIRGINIA 0 , Alexandria Division Clt!!KU.S.01?"i:iCCUST IN THE MATTER OF TlIE ) FILED UNDER SEAL STATES OF AMERICA FOR AN 01U)ER AUTl-IORIZTNG THE USE OF APEN ) No. 1:13EC297 ) REGISTER/TRAP AND TRACE DEVICE ) ON AN ELECTRONIC MAIL ACCOLmT ) APPLICATION OFTHEUNITED ) MOTION OF THE UNITED STATES FOR AN ORDER TO SHOW CAUSE The United Smtes, through Lhe undersigned counsel, pursuant to Iiilc 18, United Stales Code, Section 401. hereby moves fcr the issuance ofan order direciing Ladar Levison, the owner aDd operator ofLavabil LLC, an ele;tromc communications service provider, lo show causc why Lavabii LLC hai failed lo comply with the orders entered June 28,2013, mthis mailer and, as a result, why this Coun should not hold Mr. Levison and Lovnbil LLC in comempl for its disobedience and resistence to these lawful orders. The United States further requests that the Court convcnc «hearing on this morion on July 16,2013, at 10:00 a.m., mlissue asummons directiny Mr. Levison lo appear before this Court on lhat date. In support of this motion, the f United Slates represenis; I. The United States is conducting acriminal investigation of H^^H^m [ Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 21 of 82 PageID# 857 Lse l:l3-ec-00297-TCB*SEALED* Document 11-5 Filed 09/20/13 Page 3of 8PagelD# 68 REDACTED On June 10,'2013, ihe Uniied Stales obtained Iorder pursuant to 18 U.S.G. §2703(d) directing Lavabii LLC to provide, withnvteii days. »hnuti^^Hcinml account received dial additioned records and ;.fnr^«Hon infonnation about^^Bcmml acco^im. Mr. Mr. Lcvison Levi.on rcuc.v.u «.cu •order on June 11,2013. Mr. Levisoa responded by mail, which .s-as not received by tht. government until June 27.2013, Mt. Uvison provided very little ofthe information sought by theJune 10,2013 order, 3. On June 28, 2013, the United Siulcs obtained apen register/trap and trace order on is anached mail account, a copy ofwhich c together with the application for thai order. 4 On June 28,2013, FBI special OEe»is met Mr. Levison mhis rcsidcncc in Dallas, Tfxns. and discussed the prior grand jmy subpoena ser\'ed on Uvabit LLC and the pen register order entered that day. Mr. Uvison did not have acopy ofthe order when he spoke wth the agents, but he received acopy from the FB! within afew minutes of their conversation. Mr. Levison told the agents thai he would not comply with the pen register order and wanted to speak 10 an attorney. Uwas unclear whether Mr.-Levison would not comply with (lie order because il was ischfiicaily not feasible or difTicuU or because it was not consisrent with his business praciice ofproviding securc, encrypted email scrs'icc for his customers. Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 22 of 82 PageID# 858 Case l:13-ec-00297-TCB *SEALED* Document 11-5 Filed 09/20/13 Page 4of 8PagelD# 69 redacted 5. On June 28,2013, after ihis conversation \viih Ivlr. Levison, the United States obtained an Order Compelling Compliance Torthwith, \vhich directed Uvabit to comply with the pen register order. Copies of ihst motion and order tire attached. 6. Since June 28.2013. the FBI has made numerous attempis, without succesjs. to speak and meet directly with Mr. Uvison to discuss the pen register order and his failure to provide "all information, facilities, and technical assistance necessary to accomplish the instaUaUoaand use ol'the pen/trap device" as required by that order. As ofthis date, Lavabit LLC has noi complied with the ordir. 7. Tlie United States requests thai the Coun enter the attached proposed order direcring Mr. Levison to show cause why Lavabit LLC hasihiled to comply with the pen register order and why, iherefore, he should not be held in contempt. The United States requests that this show causc hearing be scheduled for July 16,2013, at 10:00 a.m., and iliat asummons be issued directing Mr. Levison to appear before this Court on that date. 8. The June 10. 2013 Section 2703(t!) Order and tlie June ,28.2013 pen register order remain under seat. In addition, ihesic orders provide that tavabit LLC shall not disclose the existence ofthe govemcmnt's applications and the orders to tJie subscribec^^^^mor to any other persons unless othenvisc authorized to do so by court order, except that Lavabit LLC may disclose the orders (o nn attorney for the purpose of obtaining legal advice regarding these orders. The United States requests that these documents remain under seal, that ihenon-disctosure Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 23 of 82 PageID# 859 Case l:13-ec-00297-TCB *SEALED* Document 11-5 Filed 09/20/13 Page 5 of 8 PagelD# 70 REDACTED provisions ofihc orders remain in clTeci, and that tliis motion and order and any subsequent pleadings and/or proceedings regnrding this motion also be scaled. Respecrfully submitted, Neil H. MacBride Unijed States Attorney United Stales Attorney'j^JJHllce Justm W, Williams U.S. AUomey's Building 2.100 Jamicson Avenue Alcxmidria. Virginia 223 !4 Phone; 703-299-3700 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 24 of 82 PageID# 860 Case l'13-ec-00297-TCB '^SEALED* Document 11-5 Filed 09/20/13 Page 6of 8PagelD# 71 redacted PROPOSED ORDER TO SHOW CAUSE Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 25 of 82 PageID# 861 Case l:13-ec-00297-TCB *SEALED'^ Document 11-5 Filed 09/20/13 Page 7of 8PagelD# 72 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VTROINIA Alexandria Division IN THE MATTER OF THE ) UNDER SEAL STATES OF AMERICA FOR AN ORDER ) No, 1:13EC297 authorizing THE USE OF A PEN REG lSTER/ril/\P AND TR.'\CE DEVICE ON AN ELECTRONIC MAIL ACCOUNT ) ) ) APPLICATION OF THE UNITED ) ORDER TO SHOW CAUSE Upon motion of the United States pursuanl lo Title 18, United States Code, Section 401, good cause having been showTi, IT IS HEREBY ORDERED: ! Ludar Lcvison, the o-Aner and operator ofLavabii LLC, an clcctronic communications service provider, shall appear before this Court on July 16,2013, ai 10:00 a.m., at which time he shall show cause M'hy Lavabii Ll.C has failed to comply with the ordcre entered June 28,2013, in this mailer and why this Coun should not hold Mr. Lcvison and Lavabii LLC in contempi for its disobedience and resistence to these lawful orders; 2. The Clerk's Office sliall issue asummons for the appearance of Mr. Lcvison on July 16,2013. at 10;00 a.n). The Clerk's OfTice shall provide the Federal Bureau oflnvestigaiion with acertified copy of the summons for scrvicc on Mr. Levison and Lavabii LLC. 3. The Federal Bureau oflnvestigaiion siuill serve the summons on Mr. Levison together with acopy of ihe Motion of the United Slates for an Order to Show Cause and a ceniJled copy of this Order to Show Cause. 4. Tlic scaling and non-disclosurc provisions of the June 10, 2013 Section 2703(d) order and the June 28,2013 pen register order shall remtun in ftill force and effect. Mr. I.evison Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 26 of 82 PageID# 862 Casel:13-ec-00297-TCB*SEALED'' Document 11-5 Filed 09/20/13 Page 8of 8PagelD# 73 redacted aiid Lavabit LLC shall not discloffi llie exisiencu of these appHcaiions, motions, und court orders, including this Order to Show Cause, to the subscriber or to any other persons .nlcss otherwise authorized to do so by eourt order, except thai LavabiILLC may disclose the orders to an anomey for the purpose ofobtaining legal advice regarding tliese orders. 5. Tliis Order. Ihe Motion of the United States for an Order to Show Cause, and any subsequent pleadings and proceedings regarding this matter shall be placed undersea! until further order of this Court. Entered in Alexandria, Virginia, this day of July. 201j Claude M. Hilton United States District Judge Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 27 of 82 PageID# 863 Case l-13-ec-002g7-TCB *SEALED* Document 11-6 Filed 09/20/13 Page 1of 3PagelD#^ 74 REDACTED EXHIBIT 6 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 28 of 82 PageID# 864 Case l:13-ec-00297-TCB *SEALED* Document 11-6 Filed 09/20/13 Page 2 of 3 PagelD# 75 redacted INTHE UNITED STATES DISTRICT COURT FORTHE EASTERN DISTRICT OF VTRQ3NLA Alexandria Division m THE NtATTEK OF TliE ) UNDER SEAL STATES OF AMERICA FOR AN ORDER ) No. 1:13EC297 APPLICATION OF TI-IE UNITED P i i - 9 20]: ) authorizing THE USE OF ArcN ) registert:rap and trace device ON AN ELECTRONIC MAIL ACCOUNT ) ) cuM.as.msiRiciccii'ii ' AlEMKDm,v;S5it;u ORDER TO SHOW CAUSE Upon motion ofihe United Siates puisuant to Tide 18, United States Code, Sectioa 401, good cause having been shown, IT IS HEREBY ORDERED: 1. Ladar Levisou, the owner and operator ofLavabit LLC, an electronic communications servicc provider, .'ihall appear before this Court on July 16, 2013, at 10.00 a.ni., at wluch time he shall show cause -why Lavabit LLC has failed to comply wth the orders entered June 28, 2013, in this matter and v»'hy tlus Coun should not hold Mr. Levison and Lavabit LLC in contcrapt for its disobedience and iesistenc« lo these lawful orders; 2. The Clerk's Officc !;hall issue asummons for the appearance ofMr. Levison on July 16, 2013, at 10:00 a.m. The Glerk'sOfficc shall provide the Federal Bureau oflnvestigation . with acertified cwyofthe summons for service on Mr. Levison and Lavabit LLC. 3. The Federal Bureau oflnvestigation shallserve the summons on Mr. Levison together with acopy ofthe Motion ofthe United Slates for an Order toShow Cause and a certified copy of tills Order to Shov/ Cause. 4. The sealing and non-disolosure provisions of the June 10. 2013 Scction 2703(d) order and tlie June 28,2013 pearegister order shall reraaifi in full force and effect. Mr. Levison j, Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 29 of 82 PageID# 865 l-13-ec-00297-TCB ^SEALED* Document 11-6 Filed 09/20/13 Page 3of 3PagelD# 76 and Lavabil LLC shall not disclosc the existence oftliese applications, motions, and court ordera. iacl«diBg this Order to Show Caus.. to the subscriber or to any ptl.er persons unless otherwise authonzed lo do so by coun order, except that La.abi, LLC may disclose the orders to an attorney for the purpose of obtainiDg legal advice regarding these orders. 5. This Order, the Motion ofihe United Stales for an Order to Show Cause, and any Sibsequent pleadings and procecdiags regarding tlus matter .shall be placed under seal unul further order of this Court. Entered in .'Uexandria, Vir^^inia, this _5^day ofJuly. 2013 /s/ Claude M.VWton United Stales Disinct Judge A TRUE COPY, TESTe CLERK, U.S. DISTRICT COl!r:T UbPUlYCLti^ Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 30 of 82 PageID# 866 l;13-ec-00297-TCB-SEALED* Document 11-7 Filed 09/20/13 Page 1of 2PagelD#77 redacted EXHIBIT 7 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 31 of 82 PageID# 867 Case l:13-ec-00297-TCB*SEALED* Document 11-7 Filed 09/20/13 Page 2ot2 Pa9elD#78 AO S3 (R«*- 0(V09) Summoftj in i C'iimi.-ial Case —^===s==^==s==^=^^=^== United S'M'fis District Court for the Eiisieni Districi of Virginia , »„ ^^^ACTi ^ _ A f United Sinics of America Case No. I;l3cc297 Ladar Levison Dt'Jiiidani ) SUMMONS IN ACRIMINAL CASE YOU AllE SUMMONED to appwr bufora (he Umied Slfites district court at ihc dnle and plaoo s.l forth bd(nv 10 answer lo one or more offenses or violalionsbased on ilic following document filed with Ific conn. • Indicimcm • superseding indictmcnt • InformaUon • Superseding Infom^iion D Complain. -1 PiobJUion Violaiion Pciilion • Supervised RcJsnstf Violaiion Petiuon • Violniion Notice 0 Order of Oiuit Place: 1 401 Courlhousc Square Alexandria, VA 22314 Courtroom No.: 800- Judge Hillon Date und Time: 7/16/13 @ 10:00 am This offense is briefly dtiscribed ns follows: Sec Attached Order 07/09/2013 /wuiVy ajjiter '3^i^'uii{u/ii Deputy Clerk Pri'fired name wiii tide 1declarc under penaltj' of pct}ury thai I have: • Executed and Tcturncri this summons • Reliirned this summons unexecuted A TRUE COPY.TESTB CLERK, U.S. DISTRICT COIMTT nEPUlYCIJitiK Printed mime aiid liih Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 32 of 82 PageID# 868 Case l:13-ec-00297-TCB *SEALED^ Document 11-8 Filed 09/20/13 Page 1of 3PagelD# 79 REDACTED EXHIBIT 8 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 33 of 82 PageID# 869 Case l:13-ec-00297-TCB *SEALED* Document 11-8 Filed 09/20/13 Page 2 of3 PagelD# 80 ^Dacted IM ' AO IiO (Rr/. 01/09) SuSyecu UTesfifV 3:f5x i tJiwa Jury - l.5-:iSl United States District Court for Oil Eastern District of Virginia SUBPOEMA TO TBSTmrBEFOllETHEGRAmi JVRr TO: LadarNorni«n Lcviton Dailaj.TX-7520^ YOU aRECOMMAjTOED lo appor aid testify before AeUafted Statci district co'jrt at iho liir.c, dsw. zmi pi«e shown iwlovf te lesify bsfors the court's gnuid jur/. When youisim'e. you must remiia ex At cwrt uniil iht judge ors coun officer allows you toleavo. Pl&eni JileandTItiiCl UNTTEO STATES OlSTWCT COURT 9i30a!M July 401 CourlliouwSqusre Alcxsndfli. Virginia 2UU Yoo niwt tlwbrins wiih >ou ihc ftltovring doewntnU, clwtroniMJly nortd ir;fomstIon. of objwis (•s'lsr.k Ifnol appUc»bU); I., addi.ioR >0 your pcrsom.l .pp«n.r>ce, you »re (Jircc.ed to tiriftg lo me er»"^ i"ry P-^ic «n<i prlv.<e oneryptio.1 Uys used by luvabii.com in any SSL, tSccur# SocUei Uy«r) orTLS CTranspoti Seeurlty l,..yrr KWJiooJ. including HTTPS stsjlons with clients uslnj tlic la^riiblt.com web site and encopietl SMTP cummun!c«tioni (or Inurncl conimunicationJ using oltier protocols) *rilh mail servers; Any oibiT infonnailon ti«««a.-y to accompirsli it.c ins.allaclon onO use of the pe„/trap devlco ordered by Jui-e B«<h«T>an oh June M. 2UU, uoubirusWdy -Mxi with minimum inierfcrence Wthe tcrvlca thai ure aceo"rd«cI persons with r«pcet to whom the Installation and use Ts to take place; If such infortnation is electronically stored or unoblc lo be physically iranjportcd lotho-rai'd jury, you may provide «copy of tUe Informnilon lo the Pfdcnl Bureau of fnvest.GuUon. Provision of i6« l»f<Jrmatlot. (0 ibc FBI ifocs not excuse your personal appearance. CURK OF 0 iuw II jon Slgnaarto] (««\LitrKortMpti, nTMme, udcrcw, eijudl, and ichphcnft nembsrof (ho Unlied SWM Kloniey, ofaulstaat United Sat8S»t03mey, who ictiuetts this sabpowa. are! Offitr ofilie UnUcdSti.les Ansii'ey Jiiilin W. WHIi.ims UniietlSnit«AttOnify*sBuitiJiHS 2 too JatnlKon A»fnu» VlrginlH JI3U {lOJj Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 34 of 82 PageID# 870 Case l:13-ec-00297-TCB *SEALED* Document 11-8 Filed 09/20/13 Page 3 of 3 PagelD# 81 REDACTED PROOF OF SERVICE This subpoana for (narne of rnClyidual or orgarizsHon} W83 receded by me on (bate) JuAi. m I crsor^'tlY •^er.'ed ili>subpocTS on ^ p., jL t .• (placel C" (aats) If, O 1len ine subpoena at ttie indMdusl's fesidenca or usual piacB of abode with (riarr^e) QDereon of suifeWo age end (iiscro'-ion vjtio rosidasthors, on ' Bnd maifetf a copy lo the individual's last known address; or • !served l^e subpoena on (name ofIniOMdusi). _ ' . daslgnaledby lav; to accept service of pfocoss on behalf of (nama^of^o^antzatfon) O I relumed the subpcena unexecu'sd because — r: Other (specify): Ideclare unoer the per.aSty of perjcr/ U'at Uiis in'crmaUon ts Sys. Oats: :Ji Stiver's eddress Additional information nsgnrding anempicd sen/icea. elc; • Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 35 of 82 PageID# 871 Case l-13-ec-00297-TCB ^SEALED* Document 11-9 Filed 09/20/13 Page 1of 6PagelD# 82 REDACTED EXHIBIT 9 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 36 of 82 PageID# 872 Case l:13-ec-00297-TCB ^SEALED* Document 11-9 Filed 09/20/13 Page 2 of 6PagelD# 83 AO "3 (Rev. 12/09) Scarth sfiil Seinire Waranl United States District Court for the J^dacted Eastern Districtof Virginia In the Maiwr of tiic Search of (Uriejly describs ilii properly to b« isarehed oridtntify the person by name and address) ) iNFORM^nONASSOCj^gDW^ CaseNo.1:13SW522 CONTROLLED BY LAVABIT, LLC SEARCH AND SEIZURE WARRANT To: Any authorized law enforcement officer An application hw cr^forccmcnt or an at.on.cy oflhc following person byor afederal property located in the officerNorthern [Identify ihit pi^rson or detcrtbe !h.! property to be searchedandlislocaHon}. ^requc.u - toch See Allactimenf A The pc™„ or propm,. ,0 b= 3«,.h.cl, d^eribC rtovc, is bcli.ved ,0 con«al«,«/, property Wbe seized)'. See Atlachmenl B n„d .he »mdavh(s,. oran, .corde. «<i,non,, c,«b,isl, prob.blc on.sc .o and ,hc p=no. o, property. YOU ARE COMMANDED to exeeute this warrant on or before a i„.heday,in. 6.00 a,., .o ,0 p.n,. d • .u • vnn must cive a copy ofthe warrant and a rcccipt for the property ,.k.„ nlrtce where the propcrt>' was taken, • 11 (noi ie/C'C<edH dayi) propenv «»= ,>!<», o, icavo cop, and nr nn ftFFictir Drescni during the execution of the warrant, must prepare an r.t: «Ln,jn,.,. u,„.d s.,. m.,.™ .d.= The Honorable Claude M. Hilton —• (n-jrr.e) l;choiors=i^=dfc.„rfrt,«„,.^w-»"J Ofor d.,s Cluntil, iho facis justit^-ing, the later specific date of Date and time issued^Qft^__i City and state: Alexandria, V.lrgjnla. a. hi Claude M. Hilton United States District Judge Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 37 of 82 PageID# 873 Case l:13-ec-00297-TCB *SEALED* Document 11-9 Filed 09/20/13 Page 3of 6PagelD#84 ATTACHMENT A Proper^' to Be Searclicd This wairani applies to Information associated is stored at premises controlled by Lavabit, LLC, acompany thatacccpts servicc oilegal process ai Dallas, Texas, 73204. Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 38 of 82 PageID# 874 Case l:13-ec-00297-TCB *SEALED* Document 11-9 Filed 09/20/13 Page 4ot 6PagelD# 85 ^Dacted attachment B ParticularThlags to be Seized 1. iDformntion to be disclosed by Lavabif. LLC (the "Provider") To tlie exieni that the Infonnaiion described in Atxachment Ais v/ithin the posffission, custody, or control of the Provider, including any emails, records, files, togs, or information ihai has been deleted but is still available to the Provider, the Provider is required to disclose Ute following information to the goverxunent for each aeeount or identifier listed in Attachment A. a. AH infotmation necessary to dtcrypt communications sentto or from tlie Lavabtt 'e-mail account ^ ^^J '®l«'"°S<=ncOTtion!<eys and SSLkeys; b. All imormation necessary to decrypt data stored in or othmvise associated with the Lavabit account Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 39 of 82 PageID# 875 Case l:13-ec-00297-TCB ^SEALED'" Document 11-9 Filed 09/20/13 Page 5of 6 PagelD# 86 ^DACTEd n. Information to besetted by rhegovernment All information described above in Scction I that constitutes fmiis, contraband, evidence and instrumentalitiBS of violations of 18 U.S.C. §§ violations involving including, for each account or identifierlisted on Atlaclimeni A, information pertaining to the following matters: a. All informaiicn necessary to decrypt communications sent to or firom the Lavabil including encryption keys and SSLkeys; c-mail account b. All information necessary to decrypt data stored in or otherwise associated with the Lavabil account Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 40 of 82 PageID# 876 Case l-13-ec-00297-TCB ^SEALED* Document 11-9 Filed 09/20/13 Page 6of 6PagelD# 87 rmrnricATT?. nv of domestic BUSINESS RECORDS PX3RSUANT TO l^DERAL RULE r>TTF,vmENCE 902(1 n j , attest, under penailies ofperjury under ihe laws of the United Stales ofAmerica pursuant to 28 U.S.C. § 1746. thai the iniorraaiion contained in this declaraiion is tnie and correct. 1am employed by Uvabit, LLC. and my official title is - • >™ LLC. 1state that Mch of the records ntteched hereto is tlio original record or >trae duplicate of original record in the custody ofLsvabit, LLC, and that Iam the costodian ofthe anached records consisting of a. (pages/CDsfldlobytes), 1fwther state that: all records attached to iWs certificalc were made at or near the time ofthe -occurrence of the matter set forth, by, or from taformation transmitted by. aperson ™ih knowledge of those matters; b.. such records were kept mthe ordinary course ofaregularly conductcd business activity ofLavtibii. LLC; and c. such rccurds were made by Lavabit, LLC as aregular practice. IfUrtlier stale that this certification is intended to satisfy Rule 902(! 1) of the Federal Rules ofEvidtnce. Signature Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 41 of 82 PageID# 877 Case l:13-ec-00297-TCB *SEALED* Document 11-10 Filed 09/20/13 Page 1of 2PagelD# 88 redacted EXHIBIT 10 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 42 of 82 PageID# 878 Case l:13-ec-00297-TCB "SEALED* Document 11-10 Filed 09/20/13 Page 2of 2 PagelD#89 UNITED STATES DISTRICT COURT EASTERN DISTRICT 05 WRGIKIA Alexandria Division « Jl I IN Tl-ffi MATTER OF THE SEAJICH OF ^! UIVJDER SEAL •' (Local Rule 49(B)) Ct nr.fi\ 'Rlllc- 40n^^'^ ' No. I:13sw522 I^DACTED •j'MAT IS STORED AT PREMISES CONTROLLED BYLAVABIT, LLC m?ny.R TO SEAL The UNITED STATES, pursuani lo Local Rule 49(B) ot the Local Crinimal Rules for the United States District Court for the Eastern Distriet ofVirginia, having movcj lo seal the application forasearch warrant, the search warrant, the nfrtdavit in suppon of the search warrant, the Motion lo Seal, and proposed Order in Ihis matler, and The COURT, having considered the govemmenl's submissions, including the facts presented by Ihe goverrunent lojustify sealing; having found that revealmg fte material sough, to be sealed would jeopardize an ongoing criminal invesligadon; having considered the available alternatives tliat are less drastic than sealing, and finding none ™uld suffice to protect the govenrnient's legitimate interest in concluding the invesligaacn; and having found tot this legitimate government interes, outweighs atthis ,ime any interest in Ihe disclosure ofthe material; it is hereby ORDERED, ADJUDGED, and DECREED thai, the application for search warrant, the search warrunl, the affidavii in support ofthe search wanant. Motion to Sea], and this Order be sealed until further Order by the Court. It is further ordered that law enforcement officers may serve acopy ofthe warrant on tlie occupant of the premises as required by Rule 41 ofthe Fed. R. ofCrini. Proc. /s/ ,Fex^dria, Vfrginia Claude M. Hilton United States District Judge Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 43 of 82 PageID# 879 Case l:13-ec-00297-TCB *SEALED* Document 11-11 Filed 09/20/13 Page 1 of 2 PagelD# 90 Her EXHIBIT 11 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 44 of 82 PageID# 880 Case r.l3-ec-00297-TCB *SEALED* Document 11-11 Filed 09/20/13 Page 2of 2PagelD# 91 REDACTED .U I\ wt- ns' THE UNITED STATES DISTRICT COURT FORTHE EASTERN DISTRICT OF VIRGINIA^ • FNRE: application OF THE UNITED STATES OF AMERICA FOR ;A>I ORDER PURSUANTTO 18 U.S.C. §2705(b) CaseNo. 1;13S\V522 Filed Under Seftl ju. 'mn ] ' OiHK Ui-Orii?JCl cmisi ORDER The Uiiiied Stales has submincd an application pucsuant to 18 U.S.C. §2705(b), requesting ihai the Court issue an Order coimnanding Lavabii, iin eleciroiiic communications ser^'ice provider and/or aremote conipuiing sendee, not to notify any person (including the subscribers or customers ofthe accounl(s) listed in the search warr-dni) ofthe cxisicncc ofthe attached search warrant \mtil further order ofthe Couil. The Court determines tiiat there is reason to believe tliat notifiaUion ofthe cKistence of the attached ^variant will seriously jeopardize the investigation, including by giving targets aa opportunity to flee or condiiuc flight from prosecution, destroy ortanipcr wth evidence, changc pauems ofbehavior, or notify confederates. See 18 U.S.C. §2705(b)C2), (3). (5). IT !S THEREFORE ORDEREDtmdcr 18 U.S.C. §2705(b) that Lavabit shall not disclose the existence of the attached search warrant, or this Order ofthe Court, to Uie listed subscriber or to any other person, unless and uniil othcrxvise authorized to do so by the Court, except that Lavabii may disclose tlie attached search warrant to an attorney for Lavabit for Lhe purpose ofreceiving legal advice, IT IS FURTHER ORDERED that the application and Uiis Order are sealed until other\^e ordered by the Court. _M Claude M. Hilton United Stales Dismct Judge Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 45 of 82 PageID# 881 Case l:13-ec-00297-TCB *SEALED* Document 11-12 Filed 09/20/13 Page 1of 6PagelD# 92 EXHIBIT 12 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 46 of 82 PageID# 882 l-13-ec-00297-TCB *SEALED* Document 11-12 Filed 09/20/13 Page 2of 6PagelD# 93 IN THE STATES DISTRICT COURT FOR 1 eastern DISTRICT OF VIRGINIA jii i %m Alexandria Division cmi if'Vi!* IN THE MATrER OF THE APPLICATION OF TKE UNITED ST'\TES OF AMERICA FOR AN ORDER ) UNDER SEAL ) . ) No.I;13EC-97 AUTHOIUZINGTHEUSEOFAPEN ) REGISTER/TRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT ) ) ^DACTED SUPPLEMENT TO THE MOTION OF THE UiNlTED STATES FOR AN ORDERTO SHOW CAUSE The United Siatca, through Ihc undersigned counsci, submits the lallowing additional infornia'.ion in suppon of its show causc moiion filed July 9,2013. 1. Follo^vil!g the issuance ofthe Court's Ord^r Ui Show Causc. the govemnicni had a meeting/confcrcncc call with Mr. Levison and his then counsel. Mr. Levison was in Dallas. TcxiLS, ai the FBI field office, at the lime, and his counsel from San Francisco, Cahfomiii, and prosecutoi^ and FBI agents from the Washington. D.C. field officc participated by telephone. The confcTcnce call was convened to discuss Mr. Levison's questions and concerns aboiU the installation and operation ofapen register on the targeted email account. Mr. Levison's conccms focused priniavily on how the pen register device would be installed on the Lavabit LLC system, what data would becapturcd by the dcvice, what data would be viewed and preser^'cd by the govenimcni. The parties also discussed whether Mr. Levison wouki be able to provide "keys" for cncrypwl information. 2. During ihe conference call, the FBI cxphiincd lo Mr. Levison lhal the pen register could be insialted with minimal in^paclto the f.avabil l,LC system, and the agcnis fold Mr. Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 47 of 82 PageID# 883 Case l:13-ec-00297-TCB *SEALED* Document 11-12 Filed 09/20/13 Page 3of 6 PagelD# 94 Levison thill they would meet willi him when ihey ready lo install the device and go ovor with him any of the technical details regarding tlie insiallution unci use of the pen register. As for the data collecicd by the dcvice. the asents assured Mr. Levison that the only data that the ugenis would review is that which is stated in the order and nothing more (/.e., user log-in information and the date, lime, and duration ofthe transmissions for llie rarget aceounQ^^^^^^ . . r /-« ci»r«!n/» In nflid VI5er5 Lavabit LLC provides encryption service to paid users 3. Based Based on the conference call with Mr. Levison. Ihe IM3I is reasonably confident thai wiih the encryption keys, which Mr. Levison can access, it would be able view in on un-encrypted format any encrypted informaiion required to be produced through ihe use ofthe pen register. 4, Mr. Uvison and his attonicy did not commit lo the installation and use ofthe pen registeratlhecondusionoftheJulylOconferenoecall. On July 11,2013, counsel who . participated in the conference, call informed the govcmment lhai stie no longer represented Mr. Levison or Lavabit LLC. In addition, Mr. Levison indicated that he would not come to couri unless the government paid for his travel. 5 On July 11,2013, FBI agents served Mr. Levison with agrand jury subpoena directing him lo appear before Ihe grand jury in this distriel on July 16,2013. As agrand jur)witn«s, the government was responsiWe for making Mr. Levison's travel arrangements. 6 On July 11,2013, the undersigned counsel sent Mr. Levison an email indicating that he has been served with ashow cause order from this Court requiring his appcarance on July 16.2013, and asubpoena requiring his appearance on the same daio before afederal grand jury. Tho email further advised Mr. Levison that he should contact the United States Attorney's Ofiice assoon as possible to make his travel arrangements. Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 48 of 82 PageID# 884 Case l:13-ec-00297-TCB*SEALED* Document 11-12 Filed 09/20/13 Page 4of 6PagelD# 95 7. On July 13,2013, Mr. Levison, who was no longer rcpresemed by counsel, sew govcmmcnl prosccutora an cmai! mdicatinsj thai he would be abic lo coHeci ihe data required by the pen register and provide thai data to llie govummcni after 60 days (the period ofthe pen register order). For ihis scrvioe, Mr. Levison indicaied tlisK the govemmeni would have lo pay him $2000 Tor "developmental time and equipment plus an addiliunal $1500 ifthe government wanted (lie data "more frequently" than after 60 days. 8 On July 13,2013, the govemjncnt responded to Mr. Levison's proposal. The prosecutors informed Mr. Levison that Ihe pen resister is adevise used to monitor ongoing email traffic on areal-time basis and providing the FBI with data after 60 days was not sufficient. Furthermore, prosecutors informed him thm the statute authorizes the government to compensate aservice provider for "reasonable expenses," and the amount he quoted did not appear to be rtabonablc. Mr. Levison responded by email stoning thai the pen register order, in his opinion, does not require real-time access (although this fact was discussed at length during the July 10 ' confercnce call). Moreover, he indicated that the cost ofreissuins the "SSL certificate" (for encryption service) would be .SlOOO. It was unclcar in his email if this $2000 was an addiuonal expense to be added to the $3500 previousiy claimed. Mr. Levison indicated that he would.try to contact the person responsible for making his travel arrangements at the United States Attorney's offici; on Sunday afternoon. 9. On July 15,2013, Mr. Levison spoke with the person responsible for making his travel amngemcnts. He was told that he \vas booked on aOight from Dallas. Te:<as, to Reagan National Airport depurting thai same evening. Healso had ahotel rtiseryaiion. Mr. Levison Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 49 of 82 PageID# 885 Case l:13-ec-00297-TCB *SEALED* Document 11-12 Filed 09/20/13 Page 5of 6PagelD# 96 REDACTED 10. Th(; proceeding before the Court loclay is to dcicmiine wheilior Lavabit LLC and Mr. Levison should be held in civil contempt. Civil contempt, as compjircd to criminal contoniiji under rule 42 of the Federal Rules ofCriminal Procedure, is intended to coerce compliance with acourt order. There ore four elements to civil contempt: (1) the existence of valid order of which Uvabii LLC and Mr, Levison htid actual or consinictive knowledge; (2) the order was mthe govemmcrn's "favor"; (3) Lavabit LLC and Mr. Levison violated the terms of the order and had knowledge, or constnictive knowledge, ofsuch violation; and (4) the govemment sutTcred harm as aresuli. In re GramUury Subpoena (T-l 12), 597 F.3d 189. 202 (4th Cir. 2012). 11 Here, cach ofihese elements has been met. Lavabit LLC, through direct communicnuon b=uveen tte government and Mr. Levison, i.s owner and operator, hns had actual knowledge of the pen register order and the subsequent June 28 order ol' the magistrate judge compelling eompUance witl, that order. This Cotrfs show eat.se order, which was personally ser^-ed on Mr. Leviso.., provided funher notice ofthe violation of those orders by Lnvabit LLC. The goventment clearly has suffered harm in thai it has lost 20 days of infortnation as aresult of non-compiiance, 12. Lavabil LLC may comply with the pen register order by simply allowing the FBI 10 install Ihp pen register devise and provide the FBI with the encrj-piion keys. IfLavabit LLC infomis the Court ii will comply with the order, the government will not seek sanctions. If, however, Mr. Levison informs the Court that Lavabil LLC will nol comply, the government requests lliat the Court impose afine ofSIOOO per day, commencing July 17, 2013, until Uvabit LLC fvlly complies with the pen register order. 13. To the extent that Uvabit LLC takes the position thai the pen reijister does not Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 50 of 82 PageID# 886 Case l-13-ec-00297-TCB *SEALED* Document 11-12 Filed 09/20/13 Page 6of 6PagelD# 97 REDACTED authorize the production of ihe encryption keys, the government has asked the Court to authorize the seizure of thatinfonnFiiion pursiinnt to awsttant under Title 1S, United States Code, Section 2703. ihtis rendering this argument moot. 14. The Coun has sealed this proceeding. This pleading has also been filed under seal. The United Stales will hand deliver acopy ofthis pleading to Mr. Levison at today's, hearing. Respectfully submitted, Neil H. MiicBride 'United States Atiomey'g^ficc Jtistin W. Williams U.S. Attorney's Building 2100 Jamicson Avenue Ale.xandria, Virginia22314 Phone: 703-299-3700 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 51 of 82 PageID# 887 l:13-ec-00297-TCB 'SEALED* Document 11-13 Filed 09(20/13 Page 1of 17 PagelD# 33 redacted EXHIBIT 13 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 52 of 82 PageID# 888 l:13-ec-00297-TCB *SEALED* Document 11-13 Filed 09/20/13 Page 2of 17 PagelD# redacted UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISIOH IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER authorizing THE ) ) } INSTALLATION A,ND USE OF A PEN REGISTER/TRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT 1:13 EC 297 UVIPER ssai. ) Alexandria, Virginia ) July 16, 2013 ) 10:41 a.m. TRANSCRIPT OF HEARING before THE HONORABLE CLAUDE M. HILTON UNITED STATES DISTRICT JUDGE APPEARANCES; For the United States: James Trurnp/ Esq. Andrev; Peterson, Esq. Brandon Van Grack, Esq. Michael Ben'Ary, Esq. For the Respondent Court Reporter; Ladar Levison, Respondent Tracy L. Westfall, RPR, CMRS, OCR Proceedings reported by machine shorthand, transcript produced tay computer-aidGd cranscripcion. Ttacy 1». Wost£&ll OCR-USDC/En'/A Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 53 of 82 PageID# 889 Casel:13-ec-00297-TCB*SEALED* Document 11-13 Filed 09/20/13 Page 3of 17 PagelD# 100 •) •ONDER SEAL proceedings ^Dacted 2 THE CLERK: In i?e: Case Ho. 1:13 EC 297. 3 MR. TRUMP: Good morning, Judge. Jim Trump on behalf of the United States. Vlith me is Andy Peterson, Brandon 5 Van Grack from the United states Department of Justice, 5 Mr. Ben'Ary behind me, and Matt Braverman, special agent tor the 1 FBI. THE COURT; MR. LEVISON: 10 All eight. Ladar Levison, the subject or the summons. the COURT: All right. Mr. Trump. MR. TRUMP: Y6ur Honor, we submitted our supplemental 13 paper this morning describing the communication we've had with 14 Lavabit, LLC, through Mr. Levison. And I think, very simply, v.e 15 would lilce this Court to inquire of Mr. Levison whether nc 16 intends ,to comply with the pen register order which would 11 require him to allow the FBI access to his server.to install a 18 device which will extract data, filter that data, and provide 19 that data to the FBI, and to provide the FBI with the encryption 20 keys to the extent there is encrypted information, included 21 among within Che body of information called for by the pen 22 register order. 23 As the Court is aware, and as we will provide with 2-! Mr. Levison, we obtained a search warrant this morning from Vour 26 Honor for the same encryption keys. Thus, to the extent there s Teacy L. HoaUfall OCR-:jSDC/SDVA. Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 54 of 82 PageID# 890 case l:13-ec-00297-TCB *SEALED* Document^lMS Filed 09/20/13 Page 4of 17 PagelD# ^ mroSR SEAL . redacted 1 any question as to whether Hr. levison v,ould be required ^-o 2 provide the=e keys, Ifs now sublaot both to the pan register 3 order and the search warrant, the seizure warrant. „ That's where we stand, Vour Honor. If Mr. Levison 5 agrees to oonply with the order, we would not seek any 6 sanotions. We would ask that he be directed to forthwith make 7 his servers available so the FBI can Install that device and to 8 extract the encryption keys. 5 10 11 12 13 H 15 If, however, he informs the Court he is not willing to comply with the order, we would ask the Court to impose sanctions. We suggested In our pleading a thousand dollars a day to be paid to the united States government until he co.,pli6s. If he doesn't comply with that sanction, then we would be back in court seeking additional sanotions or charging additional offenses. • the COURT: All right. Mr. Levison. MR. LEVISOM: Good morniag. Your Honor. I'm not sure , .8 What order I should .ake these In, but I would like to request a 19 1 couoie of things by motion. 20 I I'd like to move that all of the nonsensitive portions 21 of Che documents that were provided, i.e., everything excepc the 22 ' account in question, be unsealed. I believe it's important for 23 the industry and the people to understand what the government xs 24 requesting by demanding that I turn over these encryption keys 25 for the entire service. Tracy L-. Wescfall OCK-USD-C'SDVA Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 55 of 82 PageID# 891 Casel:13-ec-00297-TCB*SEALED* Document 11-13 Filed 09/20/13 Page 5of 17 PagelD# 102 UKDBR SKAIj 3. redacted THE COURT; All right. What do you say to that, 2 Mr. Trump? Deai with the motions' before I 3 ^ 5 6 7 8 MR. TRUMP; What Hr. Leviaon is trying to do, Vour Honor, is invite industry to come in and litigate as a surrogate for him the issue of whether tho encryption keys are part and parcel of the pen register order. And that's one of the reason. we sought the search warrant, to make it clear, whether through the search warrant or pen register order, he is required to 9 provide these keys. 10 we know he's besn in contact with attorneys who also 11 represent industry groups and others who have litigated issues 12 like this in the HlkiLeaks context and others. But we would 13 object to unsealing this matter because it's just Mr. -„ the COURT! and they've dona that in connection with 15 the issuance of a pen register? MR. TRUMP: They have litigated privacy-related issues 17 in the context of process under 2703. I'm not sure -- not . pen 13 register, but with respect to 2703. But we discussed this issue with Mr. Levison and his 20 counsel by conference call. We indicated that the only data 21 that the government seeks is that which is required by the pen 22 register order. That it's just the basic header to e-mail 23 24 traffic, sender, reclplant, timo, duration, that sort o£ thing. If Mr. Levison wants to object co providing the keys, 25 he can certainly object to doing uhat and then we can proceed Tracy L. WeaCfall OCR-aSPC/SOVA Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 56 of 82 PageID# 892 case l:13-ec-00297-TCB-SEALED- Docymenm-13 Filed 09/20/13 Page 6of 17 PagelD# ^ UNDER SBM redacted 1 fro. thera, but I don't thin, he's entitled to try to ma.e this 2 a public procaedln, to InvUe othera In to Utl.at. tho=e issues 3 on his behalf. ^ THE court: RU right. Well, I believe thau I'-O he 5 correct. I i«eah. this is a criminal investigation, h pen 6 register has been ordered and is here at issue, and any motion 7 to unseal that will be denied. 8 YOU said you had another motion, I believe? g MH. LSVISOl-]; Veah. My issue is only with the SSL 10 keys. So if that is litigated separately and that portion or 11 the proceeding is unsealed, I'm comfortable with that. ^2 THE COURT: I don't understand what you're saying, 13 separate proceedings, MR. LEVXSON; Sorry. I have always agreed to the 15 installation of the pen register device. I have only ever 16 objected to turning over the SSL keys because that would n compromisa all of the secure communications in and out of my 18 networ':c, including my. ovm administrative uraffic. the COURT: Well, didn't my order already include tnat? 20 HR. LEVISOM: I do not believe so, sir. 21 the COURT: Did my initial order —I don't recall at 22 the-moment. Did my initial order recall the encrypted devices 23 24 with the installation of a pen register? MR. TRUMP: The pen register, as issued, just required 25 all assistance, technical assistance, facilities, and Trocy L. OCR-USDC/SS'M Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 57 of 82 PageID# 893 Case l:13-ec b0297-TCB *SEALED* Document 11-13 Filed 09/20/13 Page 7of 17 PagelD# 104 g OITOER 3BM. ^DACTED information, to CaciUtate ths pen register. This morning the search warrant required the COURT: Yeah, but the search warrant's a differeni: matter now. That's not before me this morning. The only thing that's before me this morning is the pen register. MR. TRUMP: Correct. THE COURT: So as I understand in, my initial order ordered nothing but that the pen register be put inplace. MR. TRUMP: And all technical assistance, information, and facilities necessary to implement the pen regiatet. And it's our position that without the encryption keys, the data > from the pen rerjister will be meaningless. So to facilitate the 3 actual monitoring required by the pen register, the FBI al=o 4 requires the encryption keys. 5. THE CODRT; Well, that could be, but I don't know thet 6 I need - I don't know that I need to reach that because I've ,7 issued a search warrant for that. g MR. TRUMP: Correct, Your Honor. That the —to avoxd ,9 litigating this issue, we asked -the Court to enter the seizure >0 21 warrant. THE court; Well, whac I'm saying is if he agrees thar 22 the pen register be established, and that the only thing he 23 doesn't want to do in connection «ith the p«n 24 give up the encryption device or code 25 MR. LEVISON; I've alv/ays maintained that. Ttacy L. KaaUfall is 1.0 OCa-USCC/eCva Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 58 of 82 PageID# 894 Casel:13-ec-00297-TCB*SEALED* Document 11-13 Filed 09/20/13 Page 8of 17 PagelD# UNDER SEKL redacted ' THE COURT: — so we've got no issue here. You're ready to do that? MR. LEVISOM; I've been ready to do that since Agent Howard spoke to me the first time. THE COURT: All right. So that ends our MR. TRUMP; Well, then vfe have to inquire of Mr. Levison whether he will produce the encryption keys pursuant to the search warrant that Your Honor just signed. THE COURT! But I can't deal V7lth that this morning, can I? MR. TRUMP: Well, it's the same issue. Vou could ask him, your Honor. We can serve him with the warrant and ask him if he's going to comply rather than MR. LEVISOtJ; Vour Honor, I've also been issued a subpoena demanding those same keys, which I brought with me in the event that we would have to address that subpoena. THE COURT: I don't know, Mr. Trump. I don't think 1 want to get involved in asking him. You can talk with him and aee whether he's going to produce them or not and let him tell you. But I don't think I ought t:o go asking what he's going "o do and what he's not going to do because I can't take any action about i t anyway. If he does not comply with the subpoena, there ace remedies for that one way or another. MR. TRUMP; Well, the original pen register order was Tracy wsscfall OCH-USEC/SCVft Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 59 of 82 PageID# 895 Casel:13-ec-00297-TCB*SEALED» Document 11-13 Filed 09/20/13 Page 9of 17 PagelD# g lUb UNDER SEAL REDACTED 1 £oUo»ed by a compulsion order from Judge Buchsnan, The 2 compulsion order required the encryption keys .o be produced. 3 So, yes, part of the show cause order is to require 4 compliance both with the pen register order and the compulsion 5 order issued by Judge Buchanan. 6 And Chat order, which was attached to the show cause 7 order, states, "To the extent any information, taciUties, or 8 techDicai assistanbe are under the con-ol of Lavabit are needed 5 to provide the FBI with the encrypted data, Lavabit shall 10 provide such information, Eacilitiea, or technical assistance 11 forthwith." ^2 ,3 14 ^5 16 n MR. LEVISON; I would object to that statement. I don't know if I'm wording this correctly, but what was in tha. order to compel was a statement that was incorrect. Agent Howard seemed to believe that I had the ability to encrypt the e-mail content stored on our servers, which is not the case. I only have the keys that govern communications 18 19 20 21 2V into and out of the network, and those keys are used to secure the traffic for all users, not )ust the user in question. So the statement in that order compelling me to decrypt stuff and Agent Howard stating that 1 have the ability to do that is tschnically false or inc,orrect. There was never an 23 explicit demand that I turn over these keys. 24 TME court: I don't know what bearing that would have, 25 would it? I mean, I don't have a problem - Judge Buchanan tsacy L. HcBtfall OOS-USDC/SOVA Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 60 of 82 PageID# 896 Casel:13-ec-00297-TCB-SEALED. Document 11-13 Filed 09/20/13 Page 10 o, 17 Page.D# REDACTED 1 issued an order in addition to mine, and I'm not sure I ought to 2 be enEorcing Judge Buchanan's order. 3 4 5 6 1 My order, if he says that ha will produce or allow the installation of the pen register, and in addition I have issued a searoh variant lor the oodas that you want, whioh I did this corning, that's been entered, it seems that this issue is over as far as I'm ooncerned e.cect I need .o see that he allows rte B pan register and complies with the subpoena. g m. TRUMP: Correcx. the COURT; If he doesn't comply — i£ he doesn't hfls T have to address •11 comply with the subpoena, then that has chat. MR. TRUMP: Right. the COURT; But right now there's nothing nor me to address h^re unless he is not tailing me correctly about the pen register. y,H. TRUMP: Well, we can Your Honor, if "S can ta_k to Mr. Levison £or five minutes, we can ask him whether he will honor the warrant that you just issued. MR. LEVISON: Before we do that, can I THE COURT; Well, what can I do about i" if he doesn't, if he tells you he's not going to? You've got the right to go out and soarch and got it. MR. TRUMP: Well, we can't get the information without his assistance. He's the only who knows and has possession of Tracy h. WestCall OCR-USDC/SDV»\ Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 61 of 82 PageID# 897 case X:13-ec-00297-TCB .SEALED' Document 11-13 Filed 09/20/13 Page 11 of 17 Page,D# oupsH SEM, redacted ^ 1 it. We can't take it from him involuntarily.. 2 3 HR. LEVI30N; If I iiaV. 3^^' '"V THE COURT: Wait just a second. 4 5 You-re trying to gat me ahead. Vou're trying to get me deal with a contempt before there's any contempt, and I have 6 a oroblem with that. ^ MR. TRUMP: I'm trying to avoid contempt altogether, 8 Your Honor. g the court: I know you are. tod I'd love £or you-all 10 to get together and do that. I don't «ant to deal with it 11 either. But I don't think we can sit around and agree that 12 there's going to be a default and I will address it before it ,13 occurs. MR. TRUMP: I'm iMt trying to figure out whether 15 there's going to be a default. He'll take care o£ that, Judge. Jg the court: you can. I think Che way we've got to do n this - and I'll listen to you. I'm cutting you off, I know, 18 but I'll listen to you in a mii^ute. The way we have to do this, the hearing that's before 20 me this morning on this issue of the pen register, that's been 21 22 23 2-1 resolved, or so he's told me. I don't know whether you want Co continue this one week and see if he complies with that, which I guess would be prudent to do, or a few days tor him to comply with the pen register. Then we will wait and see what happens 25 with tha subpoena. ^ Tracy L. Wescfall ocR-wSDC/kdva Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 62 of 82 PageID# 898 case l:13-ec-00297.TCB .SEALED* Document 11-13 Filed 09/20/13 Page 12^ 17 PagelD// Sdsr sem. ^I REDACTKU u Because as tar as my pen register order is concerned, 2Ihe says he^s going bo comply with it. So that issue's over an.d 3Idone with. The next Issue aill be . . .'nether or not he complies 4 vjith the subpoena. And I don't know and I don't ../ant to 5 presume, and I don't want him to represent to me what he intends 6 to do when he can very well go home and decide he's going to do 7 aomeching dirferent. g When that warrant is served, we'll know what he'3 going 9 to do. I think we've got - I don't see another way to do it. A• That's fine, Your Honor. He will serve the 11 warrant on him as soon as we conclude this hearing, and we'll 12 find out whether he will provide the keya or not. 13 THE COURT; Okay. How, did you want to say anything 14 1 else? MR. LEVISON; Well, I mean, I've always maintained that 16 all the government needs to do is contact me and set up an n appointment to install that pen register. So I don't Icno-,.- why 18 there has never been any confusion about my willingness to 19 I install it. I've only ever objected to the providing of those 20 keys which secure any sensitive information going back and 21 22 forth. But my motion, and I'm not sure if it's relevant or not 23 Ibecause it deals more with the is=ue of the subpoena demanding 24 the keys and for what will be the forthcoming search warrant, 25 would be a continuance so that I can retain counsel to address Tracy l». Hesclall acs-OSDC/eovA Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 63 of 82 PageID# 899 Case l:13-ec-00297-TCB *SEALED* Document 11-13 Filed 09/20/13 Page 13 of 17 PagelD# UNDER SEAIi ^Dacted that particular issue. THE COURT; with that. Well, I mean, there's nothing before me I've issued the subpoena. Whatever happens with that, that's — you're trying to get roe to do what Mr. Trump wanted to do and to arrange this beforehand. MR. LEV.TSON: Well, 1 don't know if I have to appear before that grand jury right now and give the keys over or face arrest. I'm not a lawyer so I don't understand the procedure. THE COURT: I don't know either. You need to hove it would be wise to have a lawyer. MR. LEVISON; THli COURT: Okay. I don't know what's going to happeti. I don't know. They haven't served the warrant yet. I have no idea. Don't know what's going to happen with it. You'll just have to figure that out, and it be wise to have a lawyer ^:o do it, 1 v/ould think. MR, LEVISON: I guess while I'm here in regards -o the pen register, would it be possible to request some sort of external audit to ensure that your orders are followed to the letcer in term3 of chs infom^ition collected and preserved? THE COURT: No. The law provides for uhose chings, and : any other additional or ex.tra monitoring you mlghn want or nhink j is appropriate will be denied, if that's what you're requesting, s KR. LF.VISON; Okay. I mean, it requests thac the > government return to the Court records Tracy L. Hestfali OCH-USEC/EDVr Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 64 of 82 PageID# 900 case l:13-ec-00297-TCB-SEALED* Document 11-13 Filed 09/20/13 Page 14 of 17 PagelD# DTTOER SEM. 1 , " THE COURT: You need to talk to a lawyer about what the 2 law cequites for the issuance of a pen register. 3 MR. LEVISON; They can handle that separately. Thar's 4 fine. THE COURT; The law sets out what is done in 6 regard, -iour la..yer can-fill you in if you want to know. -j MR. LEVISON: I've always been willing to accept the 8 device. I just havo some concern about ensuring that if.s used 9 properly. the COURT: Should we continue this to some specific U date to see that he complies with the pen register? ^2 MR. trump: m can, Your Honor. I^'s a moot issue 13 without the encryption keys. 14 THE COURT; Hell, that is a practical matter - U MR- TRUMP: That's a practical 15 the court: -but I don't think it is a^oot issue. I 17 ..ean, you-all have got the right to go in and put on that pen IS register. He says that he «ill do it. That•s all that rve 19 ordered. 20 NOW, the other business about ordering that. Judge 21 .Buchanan ..ade an order that he's going to have to supply wha. 22 you say Is. the encryption codes to make the Information useful. 23 I don't know. I didn't e.ter thac 24 ,5 I have t.cubl, that connection. If you're going to - I don't know whether you want to Tracy l». westiali OCR-USDC/EDVA Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 65 of 82 PageID# 901 case l;13-ec-00297-TCB-SEALED* Document 11-13 Filed 09/20/13 Page 15 cf 17 PagelD# . redacted'" 1 do something in front ox Judge Buchanan or not. 2 MR. LEVISON: You see, Judge, though that I've always 3 been willing. .They just didn't feel the need to set up an 4 appointment. 5 THE COURT; What do you want ma to do with this case? 6 YOU want me to continue it? ' You want me to say it's moot right 7 now and just end it? a -MR. TRUMP: No. I think we can continue it. I don't A .now Mr. Layison-s schedule. It can be dona within hours of bis 10 I return to Dallas. 11 THE COURT-, Of course ha can. 12 ^3 wart to continue It till a week from Friday? MR. TRUMP: Or a week from today. MR. ieVISOH: I'm not avallaWa within hours cf my 15 return, but I can ..act with ycu on Thursday, 16 THE court: Let's continue it a week from Friday, MR. TRUMP: ft week from Friday. the COURT: What date' s that? The — the CLERK: 2Sth. 20 THE COURT: The 25th?- 2^1 MR. LEVISON: Acceptable to me. 22 I THE COURT: We'll continue it to the 26th, and that's 23 ' for determining whenher or aot that: pan register has been 2^1 oc installed as you request. He can make it 10 o'clock. Tracy 1«. Westfali OCR-OSCC/EDVA Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 66 of 82 PageID# 902 case l:13-ec-00297-TCB ^SEALED* Document 11-13 Filed 09/20/13 Page 16 of 17 PagelD# ^ REDACTED 1 MR. LEVISON; X'll reineinber 10:00 instead of 10:30 this time. THE COURT: All right. Thank you. All right. Thank you-all. We'll adjourn till tomorrow rr.orning at 9:30. * 4- «• (Proceedings concluded at 11:02 a.m.) ttacy L. WttSCfell OCR-USDC/SDV?. Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 67 of 82 PageID# 903 Case l:13-ec-00297-TCB *SEALED* Document 11-13 Filed 09/20/13 Page 17 of 17 PagelD# redacted rRRTIFXCA'PIOM I certify, this nth day of September 2013, chat che foregoing is a ccrrect r.-ranscrlpt from the record of prooeedlngs in the above-entitled natter to the best of my ablUty. V//A/W — -n-acy WestfaX/: KL-'K? yjmi: CCR Tcacy Hesctcll OCP.-OSOC/SDVA Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 68 of 82 PageID# 904 Case l'13-ec-00297-TCB ^SEALED* Document 11-14 Filed 09/20/13 Page 1of 2PagelD# 115 redacted EXHIBIT 14 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 69 of 82 PageID# 905 l-13-ec-00297-TCB *SEALED^ Document 11-14 Filed 09/20/13 Page 2of 2PagelD# 116 ^DACTEd IN THE UNITED STATES DISTRICT CODTtT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division 6 O'M IN THE 1«1=lTTER OF THE > ;ii>?LICATT.OI^ OF THE UNITED ) STATES AUTHORIZING THE USE OF ) A PEN RSGISTER/TR?.P AND TRACE } DHT/ICE ON AN ELECTRONIC I-IAII. account ClfSK llj 4 ' Criminal No. 1;13EC297 ) ! ORDER This raattar comes before the Court on the Govemmer.fs Motion that Ladar Levineon, the owner and operator oE Lavabit, LLC show causa as to why Lavabit, LLC has Eailed to comply with the Court's Order of June 2S, 2013 and why this Court should not hold Mr. Levinson and Lavabit, LLC in contempt, and Ladar Levinson's oral Motion To Unseal. For the reasons stated from the bench, it is hereby ORDERED that Ladar Levinson's Motion To Uneeal is DESIED and this matter is continued to Friday, July 26, 2013 at 10;00 a.m. for further proceedings. (si Claude M. Hilton United States District Judge Alexandria, Virginia July /C. • 2013 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 70 of 82 PageID# 906 C^e l:13-ec-00297-TCB *SEALED* DocumenUl-15 Filed 09/20/13 Page 1of 11 PagelD# ^Dacted EXHIBIT 15 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 71 of 82 PageID# 907 Case l;13-ec-00297-TCB *SEALED* Document 11-15 Filed 09/20/13 Page 2of 11 PagelD# 118 redacted IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA /Uexoiidria Division FILED UNDER SEAL IN THE MATTER OF THE application of the UNl'l'ED STATES authorizing THE USE OF A PEN REGISTER/TRAP AaND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT CiX-r.! IN THE MA'H'ER OF THE SEARCH and seizure OF INFORMATION arsociatbd with No. l:i3EC297 No. 3:13SW522 g^^^l^^^^lTHAT IS STORED AND CONTROLLED AT PREMISES CONTROLLED I3Y LAVABIT LLC In re Grand Jury No. 13-1 MOTION TO QUASH SUBPOENA AND SEiARCH WARRANT AND MEMORANDUM OF LAW IN SUPPORT OF MOTION Uvabit LLC (••"Uivabit") and Mr. Ladar Levinson ("Mr. Levinson") move this Court to quash the grand juiy subpoena and scarch and seizure warrant served on them by the Federal Bureau of Investigation and Uie Office of the United States Attorney (collectively "Government"). BACKGROUND Lavabit is an encrypted email sei-vice provider. Aa auch, L^ivabit's business model focuses on providing private and securc utniul accouiUs La us customers, Lavabit uses various encryption methods, including secured socket layers ("sst"), to protcct its users' privacy. Lavabit maintains an enct7ption Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 72 of 82 PageID# 908 Case l:13-ec-00297-TCB *SEALED* Document 11-15 Filed 09/20/13 Page 3of 11 PagelD# ^i) key, whidi may be used by authorized users dccrypt data and communicaLions frarn its server ("Master Kcy^. The Government has commanded Lavabit, by a subpoena^ and asearch and seizure warrant, to produce the encryption keys euid SSL keys used by lavabir.com in order to access and decr>'pt communications and data stored in one specino email address Subpoena argument If the Government gains acccss to Lavabit's Master Key, it will have unlimited access to not Accounei, but all of tlK communications and data stored in cach of Lavabit's 400,000 emml accounts. None of tliese otlicr users' email accounts are at issue mthis matter. However, production of the Master Key will compromise tlie security of these users. While Lavabit is willing to cooperate with the Government regarding the Email Account, Lavabit has aduly to maintain the security for the rest of its customers' accounts. The Lavabit Subpoena and Warrant ar-e not narrowly tailored to seek only data and communicaUons relating to the Email Account in question. As a result, the Lavabit Subpoena and Warrant are unreasonable under the Fovirth Amendment. a. Tho Lavaljlt Subpoona andWarriuit Essentially Amotinta to a General Warrant. "The ra-and juiy nol only commanded Mr. Uviason (o appear before this Court on July 16 2013, but also to bring Uvabit's encryption keys. Mr. Uvinson a bcfc^rc Iho grand jury was wiUidmwn, but the government continues to ae«k Ihc cnc^l on kc>s Luvabit i. inJ? Peking to <iua.h the CQUn'3 command that Mr. Uvinson provide the encryption keys. Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 73 of 82 PageID# 909 Case l:13-ec-00297-TCB *SEALED* DocumentJLl-15 Filed 09/20/13 Page 4of 11 PagelD# REDa Though the Lavabit Subpoena and Warrant superficially appears to be naiTowly tailored, in reality, it operates ua ageneral warrtint by giving the Government acccss Co eveo' Lavabit user's communications and data. IL is not what the Uvabit Subpoena and Warrant defines aa the boundaries for the search, but the method of providing acccss for the search which amounts to a general warrant. It is exiomatic that tho Fourth Amendment prohibits general warrants, And,^sen v. Uarytand, 427 U.S. 463, 480 (1976), Indeed "it iB familiar histoiy that indiscrimintue searches and seizures conducted under the authority of •general ^varrants' were the immediate evils that motivated the framing and adoption of the mmrth Amendment." Fayton v. New York, 445 U.S, 573, 583 (1980) (footnote omitted). To avoid general warrants, the Fourth Amendment requires that "the place to be searched" and "the persons or things to be seized" be described wth particularity, VnVad States v, Moore, 775 F. Supp. 2d 882, 898 (E.D. Va. 2011) (quoting United Stales u. Gnlbbs, 547 U.S. 90, 97 (20D6)). The Fourth Amendmenfs particularity requirement is meant to -preventl] the seizure of one thing under awarrant describing ajiothcr." Andreiien, 427 U.,S. at 480. This is jireoisely the concern with the Lavabit Subpoena and .Warrant and, in this cireumstanec, the particularity requirement will not protect uvabit. By turning over the Master Key, the Government will have the ability to search caoh and every -pUice," "pennon (and] thing" on Lnvabifs network. Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 74 of 82 PageID# 910 Case l:13-ec-00297-TCB *SEALED* Document 11-15 Filed 09/20/13 Page 5of 11 PagelD# REDACTED The Lavabit Subpoena find Warrant allows the .Govcrnment to do a Vgenoral. exploratory rummaging" through any Lwabit user account. See id. (quoUng Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)) (describing the issue vvith general warrants "is not that of intrusion per sc. but of a general, exploratoiy rummaging in a person'a belongings"). Though the Lavabit S^ibpocna and Warrant is facially limited to the Email Address, the Government would be able to seize communications, date, and information from Rny account oncc it is given the Master Key. There is nothing other than tlie "discretion of the ofTicer executing the . warrant" to prevent un invasion of otlicr Lavabit user's accounts and private emails. See fd, at 492 (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)) {explaining that the purpose of the particularity requirement of the Fourth Amendment is to ensure, with regards to what is taken that, "nothing is left tx, the discretion of the officer executing the warrant.") (intei-ntU citation omitted). Lavabit has no assurance thai any searches conducted uti!i:.ing the Master Key Will be limited solely to the Email Account. See Grah y. Ramirez, 540 U.S. 551, 561-62 (2004) (citing Camara v. Municipal Court of City and County ofSan Francisco, 387 U.S. 523, 532 (1967)) (noting that a particular waiTant is to provide individuals with assurance "of tlie lawful authority of the executing officer, his need to search, and the /imiisof his power to search) (emphasis added). Lavabit has a duty to its cusiomers to protect IheLr accounts from the possibility ofunlawful intrusions by third parties, including government entities. Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 75 of 82 PageID# 911 Case l-13-ec-00297-TCB *SEALED* Document 11-15 Filed 09/20/13 Page 6 of 11 PagelD# 122 redacted As the Uvabit Sxibpocna and Warrant art: currently framed thoy arc invalid as they operate as a general warrant, allov/ing the Government to search individual users not subjection to this suit, vs'ithout limit. b. The Lavabit Subpoena and Warrant Seeks Information that Is Kot Material to the Investigation. Bccaiise of the breadth of Warrant and Subpoena, the Government will be given access to data and communications that arc wholly unrelated to tlie suit. The Government, by commanding Lavabit's encryption keys, is acquiring access to 400,000 user's private accounts in order to gain information about one. individual. 18 U.S.C: §2703fd) states that a court order may be issued for information "relevant and material to an ongoing criminal investigation." However, the Government will be given unlimited access, through the Master Key, to several hundred thousand user's information, all of who are not "matecial" to tho investigation. Id. Additionally, the iGovernment has no probable cause co gain acecss to tJic other users accounts. "The Fourth Amendment...requires that a warrant be no broader than tlie probable cause on which it is based," Moore, 775 F. Supp. 2d at 897 {quoting United States u. Hunuitz, 459 F.3d 463, 473 (4th Ch-. 2006)). Probable cause here is based on tlie activities, of Uie individual linked to the Email Address, Otlicr Lavabit users would be severely impacted by the GovcrnmRnfs aeceSB to the MaaCer Ktiy and Iuivk not been accused of wrongdoing or criminal activity in relation to this suit. Their privacy inLerests should not suffer because of the alleged misdeeds ofanother Uvabit user. Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 76 of 82 PageID# 912 Case l:13-ec-00297-TCB *SEALED* Document 11-15 Filed 09/20/13 Page 7 of 11 PagelD# 123 ^^^CTED c. CompUanco with Luviiljlt Subpoena and Warrant Would Cause an Undue Burdea. A3 a non-parly and unwilling participant tp this suiit, Lavabit has akeady incxirred legal fees and other costs in order to comply wiUi Uie Court's orders. Further compUancc. by turning over the Master Key and granting the ' Uoveminent access to its entire netvvork. would be unduly burdensome. See 18 U.S.C. §2703(d) (stating that "the semce provider may [move to] quash or modify !an] order, if the information or records requested are unusually voluminous in nature or compliance with such order otherxvisc would cause an undue burden on such provider.") (emphasis added). The recant case of In re Application of the U.S. for an Order Pursuant to 18 U.S.C. 2703(d) addresses similar issues. 830 F. Supp. 2d L14 (E.D. Va. 2011). fn that ease, the Petitioners failed to allege "a personal injuiy cogni-^b!e by the i-'ourrh Amendment." /d. at 138. However. Lav.bil'. circumstanccs are distinguishable. The aovernment, in pursuit of informaUon date and communications related to the Email Address, hus caused and will continue to cause injury to l.avabit. Kot only has Lavabit expended a great deal of time and money in attempting £o cooperate with the Government thus far, but, Lavabit will pay the ultimate pnce-the loss of its customers' trust arid business—should the Court require that the Master Key be turned over. Lflvobit's business, which is founded on the preservation of eketroiiic: privacy, could be destroyed if it is required to produce its Master Ivey. Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 77 of 82 PageID# 913 Case l-13-ec-00297-TCB *SEALED* Document 11-15 Filed 09/20/13 Page 8of 11 PagelD# 124 ^dacted - Lavabit is also a fundamentally different entity than Twitter, the business at issue in DviUer. The Twitter Terms of Service specifically allowed user information to be disseminated, fd. tit 139. Indeed, the vciy purpose ofTwitter is for users to publicnlly post their musings and beliefs on the Internet. In contrast, Uvabit is dedicated to keeping its user's information private and secure. Additionally, the order in lU-rtterdid not seek "content information" from Twitlcr users, as is being sought here. Id. The Government's request Tor Uvabit'3 Master Key gives itaccess to data and communications from 400,000 email secure accounts, which is much more sensitive infonnation that at issue in the Tu/icter. The Government is attempting, in complete disregard ofthe Fourth Amendment, to penetrate asystem that was founded for the sole purpose of •privacy. See Katz v. United States, 389 U.S. 347. 360 (1967) (stating tliat "the touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy") (mtcmal citations omitted). For Lavabit to gi'ant the Government unlimited access to every one of its user's accounts would be to disavow its duty to its users and the principals upon wiiich it was founded. Uvabit's service will be rendered devoid of economic value if the Government is granted auetiss to its secure network. The Govcri\mcnt docs not have any proper basis to request that Lavabit blindly produce its Master Key and subject all of its users ip invasion of privacy. •Moreover, the Master Key itself is an encryption developed and owned by Lavabit. As such it is valuable proprietary information and Lavabit has a Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 78 of 82 PageID# 914 Case l:13-ec-00297-TCB "SEALED* Document 11-15 Filed 09/20/13 Page 9 of 11 PagelD# 125 ^^acted reasonable expectation in protecting it. Bccause Lavabit has a reasonable cxpcctaUon-of privacy for its Master Key, the Lavabit Subpoena and Warrant violate the Kourth Amendment. See Twitter, 830 F. Supp. 2d at 141 (citing United Slates v. Calaudra, 414 U.S. 338. 346 (1974)) (noting "The grand juiy is...without power to invade alegitimate privacy interest protected by the Fourth Amendment" and that "a grand jury's subpoena.-..win be disallowed if it is far too sweeping in its terms to be...reasonable under the Fourtl^ AmendmenL"). CONCLUSION For the foregoing reasons, Lavabit and Mr. Levinson respectfully move this Court to quash the search and seizure warrant and grand jury subpoena. Further, Lavabit and Mr. Levinson request that tins Court direct thai Lavabit does not have to produce its Master Key. Alternatively, Lavabit and Mr. Levinson request that they be given an opportunity to revoke thc.current cncyption key and reissue anew encryption key at the Government's expense. Ustly, Lavabit and Mr. Levinson request that, if they is required to produce the Master Key. that they be reimbursed for its costs which were directly incurred in producing the Master Key, pursuant to 18 U.S.C. §2706. LAVABIT LLC By Coimsel Jessc^inn^ VSB^79292 Bromley 8s BipnallfPLLC 10387 MainSt:-cet, Suite 201 Fairfax, Virginia 22030 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 79 of 82 PageID# 915 Case l:13-ec-00297-TCB *SEALED* Document 11-15 Filed 09/20/13 Page 10 of 11 PagelD# 126 ^Dacted (703) 229-0335 Telephone • (703) 537-0780- Facsimile jbinnalJ@bbla\vonline.com Cou/tsel/orl'GL'obU LLC Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 80 of 82 PageID# 916 Case l;13-ec-00297-TCB ^SEALED* Document 11-15 Filed 09/20/13 Page H of 11 PagelD# ^t>AcTt:D Vrtifinah: of Si!rvicc • Icertify that on of July. 2013, this Motion to Quash Subpoena and Search Warrant (incl Memorandum of Law mSupport was hand rJ,.i;vfrfld to the cerson at the addresses listed below: United States Attorney's Office Eastern District ofVirRinia 2100 Jamicson Avenue Alexandria. VA 2231^1 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 81 of 82 PageID# 917 Case l-13-ec-00297-TCB *SEALED* Document 11-16 Filed 09/20/13 Page 1of 13 PagelD# 128 redacted EXHIBIT 16 Case 1:13-sw-00522-CMH Document 36-29 Filed 02/24/16 Page 82 of 82 PageID# 918 Case l:13-ec-00297-TCB *SEALED* Document 11-16 Filed 09/20/13 Page 2of 13 PagelD# 3.29 ^Da cted IN THE UNITED STATES DISTRICT COURT FOR THI5 FJAHTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATrER OF THE APPLICATION OF THE UNITED STATES AUTHORIZING THE USE OF A PEN REQ1STER/TR;\P and TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT IN THE MATTER OP THE SEARCH AND SEIZURE OF INFORMATION AqsnCIATED WITH FILED tJWDER SEAL No. 1:13EC297 No, 1:13SW522 H BmH [H^H rHAT STORED AND CONTROLLED AT PREMISES CONTROLLED BY LAVABIT LLC In ro Grand Ji.iry No. 13-1 pnw TIWSEALING OF SEALED COURT RECORDS AND REMOVAL OF NON-DISCLOSURE ORDER OF ANDMOTION MEMORANDUM OF LAW IN SUPPORT l.avabit, LLC (''Lavabit"] and Mv. Ljidtu" Levinson ("Mr. Lcvinson ) [collectivcly "Movants") move this Court to unseal tlic court records concerning the United States government's attempt to obtain certain encryption keys and lift the non-disclosure order issued to Mr. Levinson. Specifically, Movants request the unsealing of all orders and documents filed in this matter before the Court's issuance of the July 16, 2013 Sealine Order (-Scaling Order"): (2) all orders and documents filed in this matter after the issuance of the Sealing Order; (3) all grand jury subpoenas and search and seizure warrants issued before or after issuance of the Sealing Order; and (*!) all document.s filed in Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 1 of 67 PageID# 919 Case l:13-ec-00297-TCB *SEALED* Document 11-16 Filed 09/20/13 Page 3of 13 PagelD# 130 ^t>ACTED connection wth such orders or rcqtiests for such orders (collectivcly, the "sealed documents"). The Sealing Order is attached as Exhibit A. Movants request that all of tht; sealed documents be unsealed and mude public as quickly as possible, with only those redactions necessaty to secure information that the Court deems, after review, to be properly withheld. BACKGROUND Lavabit was formed in 2004 as a secure and encrypted email service provider. To ensure security, Lavabit employs multiple encryption schemes using complex access keys. Today, it provides email servicc to roughly 400,000 users worldwide. Lavabit's corporate philosophy is user anonymity and privacy. Lavabit employs sccure socket layers ("SSL") to ensure the privacy of Lavabit's subacribcrs through encryption. lAvabit possesses a master cnciyption i(ey to facilitate the private communications of its users. On July 16, 2013, this Court entered an Order pursuant to 18 U.S.C. 2705(b , directing Movants to disclose all information necessary to decrypt communications sent to or from and data stored or othenvise associated with , including SSL keys (the the Lavabit c-mail account "Lavabit Ordei-"}. The Lavabit Order is attached as Exhibit B. The Lavabit Order precludes the Movants from notifying any person of the search and seizure warrant, or the Court's Order In issuance thereof, except that Lavabit was permitted lo disclosc the search warrant to an attorney for legal advice. ARGUMENT Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 2 of 67 PageID# 920 Case l:13-ec-00297-TCB *SEALED* Document 11-16 Filed 09/20/13 Page 4of 13 PagelD# REDACTED •In ci-iminal trials there is a common law presumption of access to judicial records,-like the sealed documents in the present case. Despite the goveinment's legitimate interests, it cannot rrieet its burden and overcome this presumption bccausc it has not explored reasonable alternatives. Furthermore, the government's notice preclusion order constitutes a contcnC- based restriction on free speech by prohibiting pubUc discussion of an entire topic baaed nn its subject matter. I. THE FIRST AMENDMENT AJTD NON-DISCLOSURE ORDERS The Stored Communicadons Act ("SCA-) authorizes notice preclusion to any person of a§2705(b) order's existcncc, but only if the Court has reason to helieve that notif.catinn will result in (1) endangering the life or physical safety of an individual; (2) Hight from prosecution; (3) deatrucUon or tampermg with evidence; (4) intimidating of potential witnesses; or (5) otherwise senonsly jeopardizing an investigation or unduly delaying atrial. §2705(b)(l)-{5). Despite this .tatutoiy autliorit)', the §2705(b) gag order infringes upon freedom of speech under the Firsi Amendment, and should be subjected to constitutional case law. The most searching form of review, "strict scrutiny", is implicated when there is a contcnt-based restriction on free speech. R.A. V. y. City of St. Paul. Mi/in., 505 U.S. 377, 403 {1992). Such a restriction must be neccssaiy to serve a cijrnpcmnB smtc intcrcat and narrowly drawn to achicvc ihat end. Id. The Lavabit Order's non-disclosurc provision is a content-baaed restriction thul: is not narrowly tailored to achieve a compelling state interest. Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 3 of 67 PageID# 921 Case l:13-ec-00297-TCB "SEALED* Document 11-16 Filed 09/20/13 Page 5of 13 PagelD# REDACTED a. The Lavabit Order Regulates Mr. Lcvlnson's Free Speech The notice preclusion order at ieguc here limits Mr. Levinson'a spccjch in that he is not allowed to disclosc the existcncc ofthe § 2705(b) order, or the .underlying investigation to any other person including any other Lavabit subaciibcr. This naked prohibition against disclosure can fairly be characterized as a regulation of pure speech. Bartnidd v. Vopper, 532 U.S. 514, 526 {2001}. Aregulation that limits the time, place, or manner of spccch is permissible if it serves asignificant governmental interest and provides ample alternative channels for communication. See Cox v. New Hampshire, 312 U.S. 569, 57fi (1941) (explaining that requiring a permit for parades was aimed at policing Che sti-eets rather than restraining peaceful picketing). However, a valid Lime, placci and manner restriction cannot be based on the content or subject m.-lier of the speech. Conso/. Edison Co. ofNew York u. Pxib. Serv. Comm'nafNeiv YarK 447 U.S. 530, 536 (1980). The gag order in the present case is content-based bccause it precludes speech on an entire topic, namely the search and seiaure warrant and the underlying criminal investigation. See id. at 537 ("The First Amendments hostility to content-based regulation extends...to prohibition oi public diacussion of an entire topic"). While the nondioclosuro provision maybe viewpoint neutral on its face, it neveithelesa functions as ucontent-based restriction bccause it closes off an "entire topic" from pxibUc discourse. It is true that the govcmmcnt haa a compelling interest in maintaining the integrity of criminal investigation However, Mr. Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 4 of 67 PageID# 922 Case l:13-ec-00297-TCB *SEALED* Document 11-16 Filed 09/20/13 Page 6of 13 PagelD# 1.33 redacted . ixvinson has been unjustly resti-aineci fvom contacting Lavabit subscribers who could be subjcctcd to government surveillmicc if Mr. Lcvtneon wcru forced to comply the Uvabit Order. Lavabit's value is embodied in its complcx onciypdon keys, which provide its subscribin-s with privacy and security. Mr. . Levinson has been umvUling to turn over these valuable keys because they grant acccss to his entire network. In order lo protect Lavabit, which caters to thousands of international clicnts, Mr, Levinson needs some ability to voice his concerns, gamer support for his cause, and taltc precautionary stops to ensure ihQt Lavabit remains a truly secure network. b. The Lavabit Order Constitutes APrior Restraint On Speech Besides rcstricUnB content, the §2705(b) non-disclosure order forces a prior restraint on spccch. It is well settled that an ordinance, which makes the enjoyment of Con.stitutiona! guarantees condngent upon the uncontrolled will of an official, is a prior resti-aint of those freedoms. Shuttiesworth u. Biruiingham, 394 U.S. VM, 150-151 (1969); Smuh v. CUy of Baxley. 355 U.S. 313, 322 (1958). By definition, aprior restraint is an immediate and irreversible sanction because it "freezes" speech. Nebraska Ass'rt u Stuart, 427 U.S. 539, 559 (1976). In the present case, the Lavabit Order, enjoins Mr. Levinson from discussing these proceedings with any other person. The effect is an Immediate freeze on speech. The Supreme Court of the United States has interpreted the First Amendment as providing greater protection from prior restraints. Alexwxder v. United States, 509 U.S. 544 (1993). Prior restraints carry a heavy biirden for Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 5 of 67 PageID# 923 Case l:13-ec-00297-TCB ^SEALED* Document 11-16 Filed 09/20/13 Page 7of 13 PagelD# 134 ^DActed justification, wilh a presumption af?ainst constitiitional validity. Capital Cities Media, Inc. f. Toole, 453 U;S. 1303, 1305 (1983); Catroll v. Princcss Anne, 393 U.S. 175, 181 (1968): Bantam Books, Inc. v. SuUiuaii, 372 U.S. 58, 70 (1963). Here, the government and the Court Ijelicve that notification of the aearch warrant's fixistence will seriously jeopardize Lhe investigation, bygiving targets an opporl-unity to flee or continue night from prosecution, will destroy or tamper with evidence, change patterns of behavior, or notity confederates. See LavabiL Order. However, the government's interest in the integrity ofits investigation does not automatically supersede First Amendment rights. See Londmark Communications, fnc. v. Virginia, 435 U.S. 829, 841 (1978) (holding the confidentiality of judicial review insufficient to justify encroachment on the freedom of specch). In the present case, the government has a legitimate interest in tracking the account! However, if Lavabit v/erc forced to surrender its master encryption key, the government would have access not only to this account, but also every Lavabit account. Without the ability to discloKc government access to users' cncr>'ptcd data, public debate about the scope and justification for this secret invesUgatory tool will be stilled. Moreover, innoccnt Lavabit subscribers will not luiow tiiat Lavabit's securicy devices have been compromised. Tliercfore the § ?,705(b) non-di.sclosure order should be lifted to provide Mr. Levinson the ability to ensure the value ond integrity of Lavabit for his other subscribers. Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 6 of 67 PageID# 924 l:13-ec-00297-TCB*SEALED* Document 11-16 Filed 09/20/13 Page 8of 13 PagelD# X35 redacted IT. THE LAW SUPPORTS THE RIGHT OF PUBLIC ACCESS TO THE SEALED DOCUMENTS Despite any atatoitory authority, the Lavabit Order and all related documenis were filed under seal. The sealing ofjudiciaJ records imposes a limit.on the public's right of access, which derives from two sourccs, the First Amendment and the common law, Va. Dep't ofState PoUce v. Wash. Post, 386 F3d 567, 575 (4th Cir. 2004}; See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555. 580 (press and public huvt; aFirst Amendment right of attend a criminal trial); Press-Enterprise Co. u. Superior Court, 478 U.S. 1, 2(1986) (right of acccss to preliminary hearing and transcript). a. The Common Law Right Of Access Attaches To The Lavahlt Order For aright of access to adocument to exist under either the First Amendment or the common law, the document must be a"judicial record." Baltimon^ Sim Co. v. Goetz, 886 F.2d 60, 63-64 (4th Cir. L989). Although the Fourth Circuit Court of Appeals has never formally defmed "judicial rccord", it held that §2703(d) orders and subsequent orders issued by tlie court are judicial rccords bccausc Ihcy are judicially created. In re U.S. for an Order Pursuant to 78 U.S.C. Section 3703(d), 707 F.3d 283, 290 (4th Cir. 2013) {"Tujitter"}. The §2705(b) order in the present case was issued pursuant to § 2703(d) and can properly be defmed as ajudicial rccord. Although the Fourth Circuit has held there is no P'irst Amendment right to access § 27a3(d) orders, it held that the common law presumption of access attaches tu such documents. Twitter, 707 F.3d at 291. Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 7 of 67 PageID# 925 l-13-ec-00297-TCB -SEALED* Document 11-15 Filed 09/20/13 Page 9of 13 PagelD# 136 REDACTED The underlying investigaUon in Twitter, involved a§2703(d) order, which directod Twitter to provide personal infomiation, account information, rccords, Dnancia! data, direct messages to and from email addresses, and Internet .Protocol addresses For eight of its subscribers. In re: § 2703(d) Order, 787 F. Supp. 2d 430, 435 (E.D. Va. 2011). Citing the importance of investigatoiy secrecy and integrity, the court in that case denied the petitioners Motion to Unseal, finding no First Amendment or common law right to access. Id. at 443. Unlike Twitter, whose users publish comments on a public foruni, subscribers U.C Uvabitfor its enci^pted features, whieh ensure security and privacy. In TiyiCler there ms no threat that any user would be subject to surveillance other tl^an the eight users of interest to the government. However, aprimary conccrn in thi. ease is that the Uvabit Order provides the government with access to every Lavabit account. Although the secrocy of SCA investigationa is acompelling government interest, the hundreds of thousands of Lavabit subscribers that would be compromised by the Uvabit Order arc not the subjects of EUiy justified government investigation. Therefore access to these private accounts slinuld not be treated as a simple corollary to an order requesting i.iformation on one • criminal subject. The public shoidd have access to these orders because their effcct constitutes a seriously concerning expansion of grand jury subpoena power. To overcome the common )av/ presumption of access; a court must find that there is a "significant countervailing interest" in support of scaling that Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 8 of 67 PageID# 926 l:13-ec-00297-TCB *SEALED* Document13711-16 Filed 09/20/13 Page 10 of 13 PagelD# redacted •outweighs the public's interest in openness. Twitter, 707 F.3d at 293. Under the common law, die decision to seal or grant access to warrant papers is within ihe discredon of the judicial officer who issued tlxe warrant, Media General Ope,-alivn., Inc. v. Bucha^ian, 417 F.3d424, 429 (4th Cir. 2005). If a judicial ofTiccr determines that full public access is not appropriate, she must consider alternatives to sealing, which may include granting some public acccss or releasing a redacted version of tlie documenla. fd. In 'fwiuer the court explained that because the magistrate judge individually considered the documents, and redacted and unsealed ccrtain documents, he satisfied thti procedtiral requirements for sealing. Twitter, 707 F.3d at 294. However, in the present case, there is no evidence that alternatives were considered, that documents were redacted, or that any documents were unsealed. Once the presumption or access attaches, acourt cannot seal documents or records indefinitely unlc.SH the government dcmonsu-uies that some significant interest heavily outweighs the public interest in openness. 385 K.3d at 575. Despite the government's concerns, Uieix are reasonable alternatives to an absolute seal that must be explored in order to ensure tlie integrity of this investigation. b. There I3 No Statutory Authority To Seal The g 2705(d) Documents There are no provisions in the SCA tlmt mention the sealing of orders or other documents. In conU^st. the Pen/Trap Statute authonsies electronic suxvcUlance and dL-ecta that pen/trap orders be sealed "until otherwise Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 9 of 67 PageID# 927 l:13-ec-00297-TCB ^SEALED* Document 11-18 Filed 09/20/13 Page 11 of 13 PagelD# 138 ordered'by the court". 18 U.S.C. §8 3121-27. aMarly, the Wiretap Act, another sunreillaace statute, expressly directs Giat applications and Orders granted under its provisions be scaled. 18 U.3.G. §251S(8)(b). The SCA's failure to provide for seaUng Is not a congressional oversight. Rather, Congress has speciflcuUy provided for scaUng provisions when itdesired. Whei-e Congress includes particular language in one section of a statute but oinits it in another, itis generally assumed that Congress acts intentionally. Keene I Corp< V. UnUed States, 508 U.S. 200, 208 (1993). Therefore, there is no statutory basis for sealing an application or order under tlie SCA that would 07crcomc the common law right to acccss. c. FrivEicy Coiwcrna DaniaiidiAConmion Law Public Right Of Access To The Sealed Documents the ensuing mass surveillance scandal have sparked an intense national and international debate about government surrallance, privacy rights and other traditional freedoms. Itis concerning that suppressing Mr. Uvinson's speech and pushing its subpoena power to tiie limits, tiic governmenE's actions may be viewed as accomplishing another unfounded secret infringement on personal pri7a<^. Amajor concern ia that this could cause people worldwide to abandon American service providers in favor of foreign businesses bccause the United States cannot be trusted to regard privacy.^ It iain die best interests of tlie Movant's and the govemment that the documents in tWs matter not be >Sea Dan Rob«;rt3. NBA Snooping: Obama Under Pressure asSenator Denounces 'Art of Treaaoti'. Tha Quardien, Juno 10. 2013. htt[)://\v%vw.BU£U-dian-co.ulc/world/20l9/iun /lO/obamn-prcBsured-explnin-nfln-snrvcillance. Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 10 of 67 PageID# 928 Casel;13-ec-00297-TCB*SEALED* Document 11-16 Filed 09/20/13 Page 12 of 13 PagelD# X39 redacted shrouded in secrecy and used to further unjustiHed aurvcillmice activities and to suppress public debate. CONCLUSION For the foregoing reasons, Lavabit respectfully moves this Court Co unseal the court rccords concerning the United States government's attempt to obtain certain encryption keys and lift the non-disclosure order issued on Mr. • Lcvinson. Alternatively. Uvabit requests diatall of the scaled documents be i redacted lo secure only the information that the Court deems, after review, to be properly withheld. LAVABIT LLC By Counsel BinniiUj VSBf/ 79292 Br^Jey &Binnail/PLLC 10087 Main Street, Suite 201 Farfax, Virginia 22030 (703) 229-0335 Telephone (703} 537-0780-- Facsimile jbinnal!@bblawonJinc.com Counsel for Lavabit LLC Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 11 of 67 PageID# 929 Case l-13-ec-00297-TCB *SEALED* Document 11-16 Filed 09/20/13 Page 13 of 13 PagelD# 140 cted Certiilcate of Service i certify that on this of July, 2013, (his Motion For Unsealing Of Sealed Court Records And Removal Of Non-Disclosurc Order And Memorandum Of Law In Support was hand delivered to addresses listed below: ^mtedSrcJies Attorney-vS (Jiiice Eastern District of Virginia 2100 Jamicson Avenue Alexandria. VA 223H Binnall person at the Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 12 of 67 PageID# 930 ri3-ec-00297-TCB "SEALED* Document^ll-17 Filed 09/20/13 Page 1of 28 PagelD# EXHIBIT 17 Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 13 of 67 PageID# 931 case l:13-ec-00297-TCB 'SEALED* DocumenUl-17 Filed 09/20/13 Page 2of 28 PagelD# •t> r n 'VHI- UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA .. ALEXANDRIA DIVISION •• NO. 1:13 EC 297 IN THE MATTER OF THE \PPUCATION OFTl-IE UNITED STATES AUTHORJZING TI-IE USE OF APEN REGlSTERyTRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT IN T1!R MATl'ER 01- THE SEARCH and seizure OF INFORMATION NO. 1:13 SW 522 AQQnriATPn WITH THAT IS STORED AND CONTROLLED at PREMISES CONTROLLED BY LAVABIT LLC IN RE GRAND JURY SUBPOENA NO. 13-1 irNDKR SEAL nirTTTF. tINITEP STATES IN OPPOSITION Vri 1 PIT'S v^nriON TO QUASH SUBPOENA AND MO-nQNTO KORt!NSF.^MN(^ OFSEAl.KO mURTRiroRnS INTRODUCTION This Coun haii ordered Lavabii, LLC to provide the government wiih the technical assisuince nt-ctisnary to implement am! use apen regislcr and trap and trace device (-pen-lrcp devicc"'). Afull month alier that order, and an order to compel complinncc, agrniid jtiry subpoena, and . search warrant for that technical ussistance. Lav»bit siill noi complied. Repeated efTorts to .eek iii«t technical assistance from Lavabit's o\vnor have failed. While the gDvemmem conlinucs lo work toward amutually iwccptabie soiiiiion, at present tlicre does not appear to be away to iniplemctit this Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 14 of 67 PageID# 932 113-ec-00297-TCB *SEALED* Documenn.1-17 Filed 09/20/13 Page 3of 28 PagelD# Court's order, as well as lo comply with the subpoena and scarch Nvarrant, sviihout requiring Lavabit to disclose an encryption key to the govemmenl. This Court's orders, search warrani. tiiid the grund jury subpoena all compcl Ihot result, and ihey arc all lawful. Accordin[iIy, Lavabit's motion lo quash the search mrrani aiul subpoena should be denied. l.avabit and its osvner have also moved to unseal all records in diis mutter and lirt the order issued by ihe Court preventing them from disclosins asearch warrant issued in Ibis ease. Because public discussion of these records would alert Ihe target and jeopardize an active criminal investigation, the governmenl's compelling interest in maintaining the secrecy and integrity oflhat inveslii^tion outweighs any pubUc right of access lo, or interest in publicly discussing, those records, and this motion should also be denied. TECHNICAL BACKGROXJNU Pen registers and trap and trace ckvices To investigate Internet conmiunicaiions, Congress has permitted law enforcement to employ two sun-cillance tcchniques-the pen register and the trap and trace devicethat pennit law enforcement to learn informalion about an individual's communications. St'^' IS U.S.C. §§3121-27 ("Pen-Tnjp Act"}- These techniques, collectively known as a "pen-trap," permit law enforcement to learn facts about e-maiis and other communications as they arc scnt-but not to obtain their content. e.g.. UniiedSiaies V. Furr^-uer. 512 l-.3d 500. 509-13 (9th Cir. 2008) (upholding government's use of apenirap that -enabled the government to l«am the to/from addresses of Alba's e-mail Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 15 of 67 PageID# 933 Case l:13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 4of 28 PagelD# 144 messages, the IP addresses of ihc wcbsilcs thai Alba visited and the total volume of information sent to or from his account"). The Pen-Trap Act ''unambiguously Eiulhorize[sj the use ofpen registers and trap and iracc deviccs on e-mai! accounts." In Matter ofApplication of U.S. For an Order Authorizing ihn Installation <i Use ofaPen Register &a Trap &Trace Device on E-Muil Accounf. ^15 I-. Supp. ?d 13. \A (D.D.C. 2006) (Hogan. J.) CHogan Order"). It authorizes both the insiallalion of a"device." meaning, aseparate compuicr anached to the provider's network, and also a"process," meaning, asoilware program nin on the provider. Id. al 16; 18 U.S.C. §3127. Si'curc Socket Layc-r (SSL) or Trcnsport Layer Security (TLS) Encryptioi^ Encrypting commuaicallons sent across the hitcmet is away to ensure that only the sender and receiver of acommunication can read it. Among ilie most common methods ofcncr>-pting Web and c-mail trafik is Sccurc Sockci Layer (SSL), which is also called Transport Layer Security (TLS) encryption. "Tlie Secure Socket Layer CSSL') is one method for providing some security for Internet communications. SSL provides ^iecimty by establishing asecure channel for communicatio.is between aweb browser and the web server; ihnt is, SSL ensures that the messages passed between the client web browser and the web server are cncrypted." DIsnsy Enterprise... Inc. v. Rea. No. i:l2-CV-687,2013 WL 1619686 ^9 (E,D. Va. Apr. !1, 2013); i-ee aboStambler v RSA Sec.. Inc.. 2003 WL 22749855 ^2-3 (D. Del. 2003) (describing SSL's technical operation). As with most forma ofencryption. SSL relies on the use of large nimibers known as "keys." Keys are parameters used to encrypt or decrypt data. Spccitlcally, SSL Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 16 of 67 PageID# 934 Case l:13-ec-00297-TCB "SEALED* Document 11-17 Filed 09/20/13 Page 5of 28 PagelD# X45 cncrypiion employs public-key cryptography, in whicli both the sender and rcccivcr cach have two maihematically linked keys: a"public" key and a"private" key. "Public" keys fire published, but ''private" keys are noi. Sending an enerypled message to someone requires knowing his or her public key; decrypiiiig thai message requires knowing his or her private key. Wlwn Imemet traffic is encrypted with SSI., capiuring non-content information on c-mail communication from apen-trap dcvice is possible only after the tramc is decrypted. [Jeautse Internet comimmiciUions closely inlemiingle contem with non- conlcnt. pen-trap devices by necessity scan network trafHc but exclude from any report to ' law enforcement oOicers all information relatiny to the subjeci line and body of ihe communication. See 18 U.S.C. §3127; Hogan Order. 416 F. Supp. 2d at 17-18. Apen- irap device, by defmition, cannot expose to law enforcement officers the content ofany communication. See id. FACTS The informaiion at issue before the court is relevnm to on ongoing criminal investigation of [•'or violations ofnumerotis federal statutes Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 17 of 67 PageID# 935 l-13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 6of 28 PagelD# 146 A. Section 2703(cl) Order The criminal investigation hns revealed that to utilize an e-mail account, has utilized and continues obtained through Lavabil, an electronic communications service provider, On June 10,2013, the Uniled S.mos oblain»d nn order pursuanl to 18 U.S.C. §2703(d) dircnm^abit to provide, sviihin ten days, additional tccords and inforraalion about accoimt. Lavabifs ow,>cr and operator, Mr. Ladar Lcvison, provided very little of tire information sotight by the June 10.2013 order. B. Pen-Trap Order OnJunc 28.2013, the Honorable Theresa C. Buclianan entered an Order pursuant to 18 U.S.C. §3123 authorizing the installation and use of pen-trap device on all electronic communications being sent ft^m or sent to the electronic mail account ^mi^milimC'Pcn-Trap Order")' Tlte Pen-Trap Order government to capture all (i) "non-contcnt" dialing, routing, addressing, and signaling information IQ or 00 lime of the initiaiion and receipt of such trmiiimissions, to record the duration of the transmissions, period of sixty days. Judge Buchanan ftirthcr ordered Lavabit to furnish agents of the Fi:deral Bureau uflnvcsliBation CFBI"). "forthwith, all information, facilities, and technical iissisuuice necessary to accomplish the insiallalion and use ofthe pen-trap Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 18 of 67 PageID# 936 113-ec-00297-TCB'SEALED* Document 11-17 Filed 09/20/13 Page 7of 28 PagelD# 147 dcvicc." Pen-Trap Order at 2. The government was aho ordered to "take reasonable steps to ens\irs ihat the monitoring equipment is not used to capUire any" content-related inlbrmation. Id Pursuant to i8 U.S.C. §3!23Cd), Judge Buchanan ordered that the Pen- Trap Order and accompanying applicaiion be sealed. Id. Later on June 28,2013, two FB! Special Agcms ser\'ed a copy ofthe Pen-Trap Order on Mr. Levison. Mr. Lcvison infontied llie FBI Special Agents that emails were encryptcd as they were transmitted to and from the Lavabit server as well as when they were stored on the Lavabil server. In addition, decryption keys would be necessary to access any c-mails. Mr. Levison did not provide the keys to the Auents in that meciuig. In an email to Mr. Lcvison on July 6.2013, aFD! Special Agent re-affirmed the nature of the information requested in Ihe pcn-irap order. In aresponse on the smyic day, Levison claimed "we don't record this data". C. Compliance Order Mr. Lcvison did not comply with the Pen-Trap Order. Accordingly, in the evening ofJune 28. 2013, the (.ovcmment obtained an Order Compelling Compliance Forthwith from U.S. Magistrate Judge Theresa C. Buchanan ("Compliance Order ). ITic Compliance Order directed l.avabit to comply with the Pen-Trap Order and to "provide the Federal Bureau of Investigation with unencrypted data pursuant to the Order. Lavabit was further ordered to provide "any information, facilities, or technical assistance arc imdcr the control of Lavabit [ihatl are needed to provide the FBI widi the unencrypted data." Compliance Order ai 2. The Compliance Order indicated that failing to comply svoiild subjcci I-avabii U) any pcnatty in llie power ofthe court, "including thcpossibifiry of criminal contcmpi c»f Court." M. Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 19 of 67 PageID# 937 l-13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 8of 28 PagelD# 148 D. OnlLT to Sliou" Ciiuse Mr. Levison did not comply wiih ihe CompHsmce Order. On July 9,2013, ihis Court ordered Mr. Levison to appear on July 16,2013, to show cause why Lavabii has fuikd 10 comply with ihe Pen-Trap Order and Compliance Order. •nic following day. on July 10, 2013, iheUnited Stales Attorney's Office arranged aconference call involving Uie Unilcd Stales Attorney's Offiw, the FBI, Mr. Levison and Mr. Le\'ison's auomey at the lime. Marcia Hofmann. During iliis call, the parties discussed implcmeming 11k pen-lrap dn ics in light of llic encryption in place on tho tatset c-mail uccount. Tlic FBI explained, and Mt. Levison appeared to aeree, that to install the pen-lrap device and lo obtain Ihe tinenerypted data stream necessary for the device's operation the FBI would require (1) access lo Lavabtfs server and (ii) encryption keys. E. Grand Jury Subpoena On July 11. 2013, the United Simes Aiiomey's Office issued agrand jur>- subpoena for Mr. Levison lo lesiify in IVont ofthe grand jury on July 16,2013. 'nic subpoenH instructed Mr Levison to bring lo the gmnd jury his encryption keys and any other infomation neccssar>' to accomplish the inslallmion and use ofthe pen-lrap devicc pursuant to the Pen-Trap Order.' Tlie FBI (mempied to sen/exhe subpoena on Mr. Levison at his residence. After knocking on his door, the FBI Special Agents mtnessed Mr. Levison exit his apartment from ahack door, get in his car, and drive away. Later in the evening, the FBI successftilly sen.'ed Mr. I.evison with the subpoena, 'Ttio grund jury subpoena was subsequently sealed on July 16,2013. Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 20 of 67 PageID# 938 Case l:13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 9of 28 PagelD# 149 On July 13,2013, Mr. Lcvison sent an c-mnil to Assistant Unital States Anomey In light oflht confcrcncc call on July 10th and after subsequentiy reviewing the requirements ofthe June 28th order Inow believe it would be possible to capture the recjuired data ourselves iind provide it to the FBI. Specifically the information we'd collect is the login mid subsequent logout date and lime, the IP address used 10 conned lo the subject email account and the following non-content headers (if present) from any future emails sent or received using the subject account The headers Icurrently plan to collect are: lo, Cc, From, Date, Repl>-To, Sender, Received. Reium-Parh, Appprcmly-To and Altcrnute-Rccipient. Note that additional header fields could be captured if provided in advance ofmy implementation effort. S2,000 in compensation would be required lo cover the cost of the development lime and equipment necessary to implement my solution. 1he daw would then be collected manuallv and provided at the conclusion of the 60 day period required bv the Order. Imay be able to provide the collected data iniermittently diinng the collcction period but only as my schedvile allows. If the FBI would like to rcwive the collected information more frequently Iwould require an additional Sl.oOO in compensation. Tlie additional money would be needed to cover the costs associated with automating the log collection from different servers juid uploading il 10 an an FBI server via "scp" on adaily basis. 1he money would also cover the cost of adding the process to our aiiiomaied moniionng system so that 1would notified automaticiilly ifany problems appeared. The e-mail aijain confirmed that Lavabit is capable of providin(> the means for the FBI to insi:i!l the pen-trap device and obtain the requested information in an unencrypted form. proposal was inadequate because, among other things, it did not provide for real-time transmission of results, and it was not dear that Mr. Leviaon's request for money constituted the •'reasonable expenses" authorized by the statute. F. Search Warrant &2705(b) Non-Disclosure Order On July 16, 2013, this Court issued asearch wari^int to Lavabit for (i) "(ajll information necessary lo decrypt communications sent to or from ihe Lavabit e-niail including encryption keys and SSL keys" and (ii) Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 21 of 67 PageID# 939 Case 113-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 10 of 28 PagelD# 150 informaiion ncccssary lo dccr>'ut daia stored in or oihcrwiss associaicd with the Lavabit nccoiinimjjUjlj^l^mjm" Pursuant to 18 U.S.C. §2705(b), the Court ordered Lavabit to noi disclose tiw existence of the seurch warrant upon deicrminingthat "il^erc is reason to boliove that notification oTthc existence of the .., warrani will seriously jeopardize the investigation, including by giving target an opportunity lo flee or continue flight froin prosecution, desUoy or tamper with evidence, change patterns of behavior, or notify confederates." July 16,2013 Order ("Non-Disclosure Order") at 1. G. Rule 49 Scaling Order Tlic scarch warrant und accompanying materials were further sealed by the Court 0., July 16,2013, pursuant to aLocal Rule 49(B) ("Rule 49 OrdeO- In the Rule 49 Order, tlie Conn Ibund that "tcvcaling the material sought to be sealed would jeopardize an onsoitiB erimlnal mvesligatioo." The sealing order was ftmher justified by the Court's consideration of"available alternatives that are less drastic than sealinB, and nndinj none would sufiiee to protect the government's legitimate Interest in concluding the iavestigation; and having found that this legitimate government interest outwelglrs at this time any interest In the disclosure of the material." Rule 49 Order at 1, H. Show Cause Heai ing At ihe Show Cause Hearing on July 16, 2013. Mr. Levison made an or«l motion to wsca! the proceedings and related filings. The government objecied since unsealin the proceedings would jeopardize the ongoing criminal investigation ol m The Court denied Mr. Leviaon's mulion. Mr. Levison subsequently indicated to Ihe Court ihm IR- u'ould peniiil the PBI lo place npcn-irop dcvice on his server. The govcnimcni requested thai the Court further order Mr. Uvison to provide liis SSL Keys since placmg Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 22 of 67 PageID# 940 Case l'13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 11 of 28 PagelD# 151 a pen-trap device on Uvabit's server would only provide encryptcd infonnaiion ihat would noi yield ihe informaiion required under the Pen-Trap Order. The govemmenl noted ihat Lavabit was also required to provide the SSL keys pursuant lothe search warrant and j>rand jviry subpoena. The Court determined that the government's request for the SSL keys was premature given that Mr. Levison had ollercd to place the pen-trap device on his server and the Court's ortier for ashow cause hearing was only based on the failure to comply with the Pen-Trap Order. Accordingly, the Court scheduled a hearing for July 26,2013, to detennine whether Lavnbit was in compliance with ihe PenTrap Order after apen-trap device was installed. I, Motion to Unscul iind Lift Non-Disclosure Order On July 25.2013. Mr. Levison filed Mo motions—a Motion for Unsealing of sealed Court ("Motion lo anJ aMotion to Quash Subpoena «,d Scch watram ("Motion lo Quash"). In the .notion., Mr. Uvison confirms tita. providing the SSI, ktys to Ihe government would provide the tiata required under the Pen-Trap Order in an unenerj'pted form. Nevertheless, he refuses lo provide the SSL keys. In order to provide the Bovemment «th sutneienl lime lo respond, the heiuing was reseheduled for August I, 2013. On alater date, and after discussions with Mr. Levison, the FBI installed apen- irap dcvice on Lavabifs Internet scrvice provider, which would capmre the same information as if apen-trap dcvice was insUilled on Uvabifs server. Based on the govcrnn,ent's ongoing investigation, it is clear that due to Lavabit's cncry-ption services ..he pen-irap device is failing to capture duia related lo all of ihe e-mails sent lo and from the account us well as other information required under the Pen-Trap Order. During Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 23 of 67 PageID# 941 Case l-13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 12 of 28 PagelD# 152 Lavabii's over one month of noncompliance with this Court's Pen-Trap Order,! ARGUMENT [. THK SEAUCH WAl^UNT AND THE GRAND JURY SUBPOENA ARE LAWUL AND REQUIRE LAVABIT TO PRODUCE THESSL KEYS A. The aearch warrant ainlgroticijuryaubpocna are valid became they mervly re-siale Lavabii's pre-existing legal duiy. imposed by the Pen-Trap Order, (a produce injbrmalion neccssa}y to accomplish inslallation ofthe pen-trap device. The motion of Lavabit and Mr, Lcvison MIecnvdy "Lavabii") lo quasli both the grand jury subpoena and the search warrant should be denied beeause the subpoena and wananl merely re-statc and clarify Lavabii's obligation under the Pen-Trap Act to provide that same information, in total, four separate leglti oblieations eunently compel Lavabii to producc the SSL keys: 1. The Pen-Trap Order pursuant to the Pen Register and Trap and Trace Device Aci 0 8 U.S.C. §§ 3121-27), 2. Ue Campliance Order compelling complianCL- forthwith with ihe PenTrap Order; 3. The July 16.2013, grand jury subpoena; and 4. Tlie July 16.2013. search warrant, issued by tliis Court iinder the Elccu-onic Commimications Privacy Act C'KCPA ). The Pen-Trap Act authorizes courts to order providers such as Lavabii to disclose ••informntion" ihai is "necessao'" lo accomplish the inipleincntaiion nr use of apen-u-ap. iVe IS U.S.C. §§ 3123tb)(2); 312-1{n); 3]24tb). Judge Buchanan, noting under thai authority, specifically reciuired in the Pen-Trap Order that: "IT IS FURTHER Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 24 of 67 PageID# 942 Case l-13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 13 of 28 PagelD# 153 ORDERED. puRuani to 18 U.S.C. § 3l23Cb)(2). that Lavabit shall furnish agents from ihe Federal Bureau of Investigaiion, forthwilh, all uifomiation, facilities, and technical assistance neccssary to accomplish the installation and use ofthe pen/trap device unobtrusively and with minimum interference." Pen-Trap Order at 2. In this ease, the SSL keys are "information... necessary to accomplish the installation and use of the [pen-lrap]" because all other options for installing the pen-trap have failed. In atypical case, aprovider is capable of implementing apen-trap by using its own software or device, or by using atechnical solution provided by the investigating agency; when such asolution is possible, aprovider need not disclose its key. E.g.. In re AppUcmion aflln i/.S. for an Order Auihorizing ihe Use ofaPen Re^isler and Trap On [XXX] Intermi Surv. Accounl/U.m fxxxm@xxx.coml 396 F. Supp. 2d 45.49 (D. Mass. 2005) (suggesting language in apen-trap order "to impose upon the internet service providers the necessity ofmaking sure that they configure their software in such a manner as to disclose only that which has been authorized"). In this case, given Lavabit's use of SSL encryption and Lavabifs lack.ofasoftware solution to implement the pen-trap on behalf the government, neither the government nor Mr. Levison have been able to identify such a solution. Beeaustf the search warrant and grand jury subpoena require nothing Uiat the Pen- Trap Act docs not already require, they are not unreasonably burdeasomc. Moreover, a coun's constitutional authority to require atelecommunicaUons provider to assist the government in in^plemeniing apen-trap dcvicc is well-established. Sec United Stares v. A'ew York Tel. Co.. 434 U.S. 159. 168-69 (1977) (in aprc-Pcn-Trap ease, holding that district court had the authority to ordera phone company to assist in the installation ofa Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 25 of 67 PageID# 943 Case l'13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 14 of 28 PagelD# 154 pen-irap, and "no claim is mndc {hat it w:is in any way inconsisicni with the Founh .AjnendmenL"). B. Lavabii's tnolion to quash the search warrant must be denied because there is no slaitnory auihoriiyfor such niotiom. ami the search warrant Is lawful in any event. I. Lavobit lacks authority tomove to suppress a search wurrani. Lavabii lacks authority to ask this Court to 'Squash" ascorch warram before it is executed. The search warrant was issued under Title II ofECP/V. 18 U.S.C. §§ 2701- 2712. ECPA allows providers such as Lavabii to move to quash aaurl orders, but does not crcaK an squivjient prowduro lo move to miash scarch warnmts. 18 U.S.C. 52703{cl). Tito tack ofacorrcspondinu motion lo quasli or ntodify ascarch OTrram tncans that there is no statutory .uthority for st.oh motions, S.e 18 U.S.C. 52708 ("[t)he rcro=cli« and sanctions dcscribcd in tltis cliaplcr are tiic only judicial remedies and unctions for nonconstitutionai violations ofthis chapter."); cf. In re Appl!ca,io„ oflh, as.for an Order Purs,.an, to 18 V.S.C. §270m. 830 F. Supp. 2d 114,128-29 (E.D. Va, 2011) (holding that the tack of aspecific provision in ECPA perraining users to move ,0 quash court orders requires "the Court (to) infer tliat Congress deliberalely declined .o permit [suchl challenges."). 2. The search warrnnt complies with the Fourth Amendment and is not general. •n.c Founh Amendment requires that asearch warrant "particularly describe[el the place lo be searched, and the persons or things to be seized." U.S. Const. Am. IV. This -paiticolariiy requirement is fulfilled when the warrant identifies the items to be seized by their relation to designated crimes and when the description of the itenis leaves Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 26 of 67 PageID# 944 Case l-13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 15 of 28 PagelD# 155 nothing lo Ihc discretion of the olTicer executing the warrant." Uniicd Stares v. I'/lllianuv, 392 F.3d5n,519(4th Cir. 2010J. The July 16,2013, searcli warrant's specification easily meets this standard, and therefore is not impcrmissibly general. Itcalls for only: a. All information ncccssary to dccrypt communications sent 10 or from thej^aya^e-mail account mH^^m^^Hincluding encryption keys and SSL keys; b. All inlbrmation necessary to decrypt cioia stored in or otherwise associated with the Lavabit account That specification leaves nothing to discretion; it calls for cnciyption and SSL keys and nothing else. Acknowledging this spcclficity, Lavabil nonetheless argues thai the wanam -operates as ageneral warrant by giving the Govemment access to cvco" Lavabit user's commtmicaiions and dat.." Mot. lo Quash at 3. To the contrary, the ^var^ant does not grant the government the legal authority to access any Lavabil user's communications or data. After Lavabit produces its keys to the govemmem. Federal statutes, such as the Wiretap Act and the Pen-Trap Act, will continue to limit sharply the government's authority to collcct any data on any Lavabil user-cxccpt for the one Lavabil user whose account is currently the subject ofthe Pen-Trap Order. See 18 U.S.C. §2M 1(1) tpunishing as afelony the iiinuithorizcd interception ofcommunications); §3121 (criminalizing the use ofpen-trap devices without acourt order), It cannot be that a search warrant is "general" merely becausc it gives the government atool that, ifabm-eci contrary ro law. could constitute ageneral search. Compelling the owner ofan apartment building to unlock the building's front door so that agents can search one apartment is not Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 27 of 67 PageID# 945 Case l;l3-ec-00297-TCB *SEALED* Document U-17 Filed 09/20/13 Page 16 of 28 PagelD# 156 0"gencrnl search" ofihc entire apartment buiiding—even ifthe building owner imagines that undisciplined agents will illegally kick down ihe doors lo apsinmenis not described in the svarranu C. LavobU 'i- moiiun mqitosh the subpoena mtts! be deniedbecause compliance would noi be unreasonable or oppressive Agrand jury subpoena "may order the wtncss to producc nny books, papers, documents, daia, or other objects the subpoena designates," but the com"may quash or modif>' the subpoena if compliance would be unreasonable or oppressive." Fed. R. Crim. P, 17(c)tl) &(2); sef In re Grand Jury. John Doe No. GJ.2005'2. 478 l'.3d 581,585 (4th Cir. 2007) (recognizing eouns inav quash subpoenas that arc "abusive or harassing").' Lavabil argues ihe subpoena should be quashed because it grant[s] the Government unlimited access to every one ofits user's accounts." Mot. to Quash m7. As explained abov«, the subpoena does no such thing: It merely reaffirms Lavabil^s existing obligation to provide information necessary to implement this Couri's Pen- Trap Order on asingle Lavabil customer's e-mail account. T!ie Pen-Trap Order furllier restricts the iiovemmcni's access by preventing the government Irom collecung the content of that Lavabit customer's c-muil communications. Uvabit also argues lhai it will lose customers' trust and business if it they learn that I.avabii provided the SSL keys to the government. But Lavabit finds itselfin Uie position ofhaviny to produce those keys only becausc, more ihan amontii after the PenTrap Order, l.avabil has failed lo assist the sovommcni lo implement the pen-imp device. ' l.av.ifaii ciici 18 U.S.C. §2703ld) as authority- for its moiion to quash, bm iliai section by iis ivrms only pemils motions to qua^ti court orders issued under ihni sume stfciion. Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 28 of 67 PageID# 946 Case l:13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 17of 28 PagelD# ISV Any resulting loss of customer ''triisi" is not ati "unrcasoimbic" burden if Lavabil's customers irvisted thai Lavabil would refuse to comply with lawful court orders. All providers arc siatutorily required lo assist the govemmeni in the implementaiion of pentraps, SHU 18 U.S.C. §3124(h), (b), and requiring providers to comply with that statute is neither "unreasonable" nor -oppressive." In any event, I^vabifs privacy policy tells its customers that "Lavabil will not release any information related to an individual user imlcsi! k'^ully vompeUed to do so:' Sus htiD://lavabii.com/privacv policv.htm) (emphasis added). I Finally, oncc coiin-ordered surveillance is complete. Lavabil will be free to changc ils SSL keys. Vendors sell new SSL cenifigates for approximately Si 00. e.g.. GoDiiddy LLC, SSL Certificates. hup^://w^-w.t;ndaddv.cQm/';'il/ssl-ceniricates.aspx. Moreover, Lavabil is entitled to compensation "for such reasonable expenses incurred in providing" assistance in implementing apcn-lrap dcvicc. 18 U.S.C. §3124(c), ,1 THE KON-DISCLOSUI^ ORDER IS CONSISTENT V^mi THE FT^RS;!' NDMENT BECAUSE IT IS NARROWLY TAILORED TO SERVE w"vr A1 agree is acompelling government INTEliEST Lavabil has asked the Court lo unseal all of Ihe records sealed by this Court's Order to Seal, and to lift the Court's Order dated July 16,2013, directing Lavabit not to disclose the existence of the scarch warrant the Court signed that day ("Non-Disclosure Order"). Motion for Unsealing of Sealed Court Records and Removal ofNonOisclosure Order ('-Nloi. to Unseal") at 1-2. Lavabil. however, has not identified (and caiinoO tmy compelline reiisan sufTicienl to overcome what even Ltivabit concedes is iIk t-ovcmmem's compclUng interest in maintaining the sccrecy and iniciiriiy of its aciivo iiivestiyation Moreover, the resuictions are narrowly tailored to restrict Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 29 of 67 PageID# 947 Case l-13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 18 of 28 PageiD# 158 Lavabil from discussing only a limited set of information disclosed to ihcm as pan of this iiivesiigation, Becjuisc there is no reason to jeopardize the criminal investigation, tliis motion must be denied. A. The Nor.-Dbclosure Ordersurvives even siric!scruriny review by imposing necessary^ bui limitedsecrecy obligoiiuivi on Lavabil The United States docs not conccdc thai strict scrutiny must be upplicd in reviewng ihe Non-Disclosure Order. Tliere is no need to decide this issue, however, because the Mon-Disclosure Order is narrowly tailored to advance acompelling [jovemmcnt interest, and therefore easily satisfies strict scrutiny. The Govcmmenl has acompelling interest in protecting the integrity of on-going criminal investigations. Dep'i afSiaie Mice v. Wash. Fost, 386 F.3d 567, 579 (4lh Cir. 2004) C'V/e note initially our complete agreement with the general principle that acompelling governmental interest exisis in protecting the integrity ofan ongoing law enforcement investigation"); Branzbiirg v. Hayes, 408 U.S. 665. 700 (1972) ("requirements .,. that aSlate's interest must be •compelling' .. .are also met here, .^s we have indicated, the investigation of crime by the grand jury implements aamdamental governmental role of securing the safety of the person and property ofthe citizen ....• ). Indeed, it is "obvious and unarguable Ihut no government interest is more compelhng ihan me security of the Nation." Hal^ v. Agee. 453 U.S. 280. 307 (19S1) (imemal quoiation murks omined); also Dep Vofthe Na^y v. Egan, 4S4 U.S. 518, 527 (1988) (••This Court has rccognizcd the Government's 'eompclling Intercsi* in withholding national intbrmation from unnulhorized persons in the coursc ofcxecuiivc business"). Likewise, hcri:. the United Slates elearly has acompiling interest in L-nsuring that the target oflawftil surveillance is not awan; that lie is being monitored. Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 30 of 67 PageID# 948 Case l'13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 19 of 28 PagelD# 159 Un'miSidles v. Agiiilar. 515 U.S. 593. 606(1995) (holding that a siQtuic prohibiting disclosure ofa.wiretap was permissible under the First Amondmeni, in part because "[wle think the Govcmmiinl's inleresi is quite surficieni to justify the constniction of the statute as wrinen, without any artificial narrowing because of First Amendment concerns"). As the Non-Disclosurc Order makes clear, publicising -'the existence of the [search] warrant will seriously jeopardize the investigation, includiny by giving targets an oppommity to tke or gontinue fliglii from prosecution, destroy or tamper with evidence, chance patterns of behavior, or notify confederates. Lavabil iicknowlwlges that "ihe guvermneiit lias acompelling interest in •naintainins the integrity of its criminal invesiigaiion at 4; id. at 6 government has alegitinmtc interest in tracking account); id. at S("the secrecy of [Stored Communications Act] investigations is a compelling Hovcmmcnt interest"). In spite ofthis recognition. Uvabit slates it intends to disclose .he search warrant and order should the Court grant the Motion to Unseal. Id. at 5C'Mr. Levinson needs some ability to voice his concerns [and] gamer support for his cause"); id. at 6. Disclosure ofelecironic surveillance process before, ihe akdromc surveillance hmfim^h^d, would be unprecedented and defeat the very purpose of the surveillance. Such disclosure would ensure that^Hi. along with the public, would learn of the moniloring ofHc-inail account nnd tfike action lo fnistrate the Icjptimate monitoring of that account. The Non-Disclosure Order is narrowly tailored to serve the govemmenl's compcllint. inwrcsi of protecting the iiilegriiy of ils invtsiii-ation. The scope of information that Uvabit may not disclose could hardly be more nnrrowly drawn; '"the Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 31 of 67 PageID# 949 Case l-13-ec-00297-TCB*SEALED* Document 11-17 Filed 09/20/13 Page 20 of 28 PagelD# 160 cxisiencc of the aitachcd scarcii warranl" and tlic Nun-Disciosufc Order itself. Restrictions on a party's disclosure orinlbrrnQtion obtmned throogh participation in confideniial proceedings stand on a different andfirfner constitutional footing from restrictionson the disclosure of information obtained by independent means. Seaali: Times Co. v. Rhineharl. 467 U.S. 20, 33 (1984) (order prohibiting disclosure of information learned through judicial proceeding "is not the kind of classic prior restraint that requires exacting First Amendment scrutiny"); Butwnvorlh v, Smiih, 494 U.S. 624, 632 (1990) (distingiiisliing between awitness' "right to divulge information ofwhich he was in possession before he lesiined before the grand jury" vmh "information which he may have obtained as atestilt of his participation in the proceedings of the grand jury"); also Hvjr>r.m-h^gh v. Keenan, 33S F.3d 1136,1140 (lOth Cir. 2003) (Hnding prohibition on disclosing information learned through grand jury process, as opposed to informmion person already knew, does not violate First Amendmcni). In Rhineharl. the Court found that -'controt over [disclosure of] the discovered informaiion does not raise Ihc same specter of governmcnl censorship that such control might suggest in other situations." 467 U.S. at 32. Further, tlie Non-Disclosure Order is temporary. The nondisclosure obligation will last only so long iis necessar)' to protect the government's ongoing investigation. B. The Order iteiihorforecloses discussion ofan "entire lopic" nor consrilutes an tmconslilulionai prior res(roinl on speech The limitation imposed here docs not close off from discussion an "entire topic, as articuUiwd in ConsoUitamd Edison. Moi. lo Unseal »i 4. At issue in ihat case wiis lh;i constiturionality ofaslate commission's order prohibiting a regulated utility from including inserts in monthly bills that discussed any controversial issue of public policy, Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 32 of 67 PageID# 950 Case l-13-ec-00297-TCB ''SEALED* Document 11-17 Filed 09/20/13 Page 21 of 28 PagelD# 161 such as nuclcar power. Cunsolklaied Edison Co. ofNew York v. Pub. Serv. Comm'n of Ntiw York, 447 U.S. 530,532 (1980), The Non-Disclosurc Order, by contrast, precludes a single individual, Mr. Levison, from discussing anarrow sci ofinformation he did not know before this proceeding commenced, in order lo protect the integrily ofan ongoing criminal investigation. Cf Doa v. Mukaat;)', 549 F.3d 861, 876 (2d Cir. 2009) C'although the nonciisclosure requirement is triggered by the content ofa category of information, ihm category, consisting of the fact of r<.-ceipi of (a National Seouriiy Letter] and some related details, is far more limited than the broad categories ofinformation that have been at issue with respcci to typical conlenl-based restrictions."). Mr. Levison may siill discuss everything he could discuss before the Non-Disclosure Order was issued. Lavabifs argument that the Non-Disclosure Order, and by extension all §2705Cb) ovd«, are imconstitutional prior reslrainls is likewise unavailing. Mot, To Unseal al 5-6. As argued above, ihc Non-Disclosurc Order is narrowly lailorcd to serve eompcllmg government interests, and satisfies strict scnttiny. See Part Il.A. Regardless, the Non-Diselosu-e Order does not fit within the t^vo general categories ol'prior rcstra.nt that can mn afoul of the R,3t Amendment: licensing regimes in which an individual's right to speak is conditioned upon prior approval from the govenmient, see CUyofLakevoed v. ?lal„ Dealer Publishing Co.. 486 U,S. 750,757 (1988), and injunctions resffaining certain speech and related activities, such as publishing dcfamalory or scandalous articles, showing obscene movies, and distributing leaflets, see Alexmder v, LMled Stares, 509 U.S. 544, 550 (1993). Aprior restraint denies aperson ihe ability to express Vic^vpoinis or ideas llicy coiald have possessed ^vi.ho^^ any Bovcmmcnl invoivemenl. Scction 2705Cb) orders, by comrast, restrict arecipient's ability to disclose limned Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 33 of 67 PageID# 951 Case l'13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 22 of 28 PagelD# 162 inlbrmaiion thai the recipient only k-amed from the govcrnmcnl's need to effectuate a leu.iiimale, judicially sanctioned form of monitoring. Such a narrow limitation on inrormaiion ucquircd only by virtue ofanofficiai investigation docs not raise the same concerns as other injunctions on spocch. Cf. Rhineluiri. 467 U.S. at 32, Doe v. i\'fukasey, 549 F.3d at 877 (non-disclosure requirement" imposed by the national security letter statute "is not a typical prior restraint or atypical content-based restriction warranting the most rigorous First Amendment scnitiny ). ni. NO VALID BASTS EXISTS TO UNSEAL DOCUMIiNTS THAT, IF MADE PUBLIC PRE-MATURELY, WOULD JEOPARDIZE .A-N ON-GOING CRIMIN.VL INVESTIGATION A. Any aumwn Jaw rii^h! ofaccess is ounvslghed by ihe nsedio proieci the integriiy of Ihe inwiiigaiion. Lavabit asserts that the common hiw right of access necessitates reversing this Court's decision f seal Uic search warrant and supporting documents. Mot. to Unseal at 7-10. The prwumption ofpubUc access to judicial records, however, is "qualified," Bali. Sun Co. V. Goctz, 880 F.2d 60. 65 (4th Cir. 1989). and rcbuttablc upon ashowing that the -public's riglil of access is outweighed by competing interests," In re Applicaiion oj ihe V.S.for an Onkr Pur^^u.nt io 18 U.S.C. Section 2703(cl), 707 F.3d 2ii3, 290 {4th Cir. 2013) CTwiiier")- In addition to considering substantive interests, ajudge must also consider procedural alternatives to sealingjudicial records. T^viitsr, 707 F.3d at 294. "Adherence to this procedure serves to ensure that the decision to seal materials will not be made lightly and that it will be subject lo mcaningiul appellate review." Va. Dep'! of Store Pollcc v. IVcsh. Pas:. 386 F,3d 367. 576 C4th Cir. 2004), 'Hus standard i.smc( c^^ily Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 34 of 67 PageID# 952 Case l-l3-ec-00297-TCB *SEALED* Documenl 11-17 Filed 09/20/13 Page 23 of 28 PagelD# 163 '•[Tjhe common lawdocs noi afford as much substantive prolccdon to the interests of thepress and thepublic as does the First Amendment." Twiner, 707 F.3d ai 290 (intcmiii quotation marks omitted). With rcspcct to ihc substantive equities atstake, the United Stales' interest in maintaining the secrecy of a criminal investigation to prevent the target of the surv'eillance from being alerted and altering behavior to thwart the surveillance clearly outweighs any public inlerest in learning about specific acts of su^^xillancc. Id at 294 (rejecting common law riglit ofaccess because, inter alia, the scaled documents "set forth sensitive non-public facts, including the identity oftargets and witnesses in an ongoing criminal investigation"). ''Because sccrccy is necessary for the proper functioning of the criminal investigation" prior to indictment, "openness will frustrate the government's operations." let. at 292, Lavabit conccdes that cnsurmg the secrecy of [Stored Communiciilions Act] investigations," like this, "is acompelling government interest:' Mot. to Unseal at 8(emphasis added). Lavabit docs not. however, identify any compelling interests to the contrary. Far from presenting "a seriously concerning expansion ofgrand jury subpoena power," as Lavnbit's contents, id., ajudge issued the Fen-Trap Order, which did not authorize monitoring of any Lavabit e-mail other In addition, the Couri satisfied the procedural prong. It "considered the available alternatives that arc less drastic than scaling, and [foundj none would sufiice to protect ihe government's legitimate interest in concluding the investigation." Rule 49 Order. The Fourth Circuit's decision in Twitter is instructive, That case arose from the Wikilcaks investigation ofArmy Pfc. Brtidlcy Manning. Specifically, the govemnicm obiain«d an order pursuam to 18U.S.C. §2703Cd) directing Twiner to disclose electronic Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 35 of 67 PageID# 953 Case l-13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 24 of 28 PagelD# 164 commuiiioations and account and usugc informaiion pcrtuining lo ihrcc subscribers. When apprised of this, the subscribers asserted thai acommon law right ofaccoss required unsealing records related to the §2703(d) order, 'ITie Fourth Circuit rejected this claim, finding that the public's interest in the Wikileaks investigation and the government's clcclronic surveillance of internet nclivities did not ouUvcigh "the Government's inieresis in maintaining the secrecy ofits invesugaiion, preventing potential suspects from being lipped otT, or altering behavior lo thwart the Government's ongoing invesugaiion.- 707 F.3d al 293. "The mere fact thai acase is high pronie in nniure;' the Fourth Circuit observed, "docs not necessarily justify public acccss." Id. at 294. Though Tmlier involved a§2703(d) order, rather than a§2705(b) order, the Court indicted this i. adistinction without adilTerencc. Id. at 294 (acknowledging that the conccms about unsealing rccords "accord" with §2705(b)). Given the similarities between Tmuer and the instant casc-mosl nolubly the compelling need to protcct otherwise conndeniia! information from public disclosure and die nmional mtemion to ih^ mnncr-iherc is no compelling rationale currently before the Court neccssiiating finding that acommon Itw right ofticccss exists here. B. Coiiri.s have mhcreni auihoriiy to seal ECPA process Lavnbit asserts that this Court must unseal the Non-Disclosure Order because 18 U..S.C. §2705(b) docs not explicitly refercncc the scaling of non-disclosure orders issued pursuant lo that section. Mot. lo Unseal at 9-10. As an initial matter, ihc Court has inherent auihoriiy (o seal documents before it. In re Kni^hi Pub. Co., 743 F.2d2.j 1.2^5 (4lh Cir. 1984) ("[tlhe irial courl has supervisory power over Us own records and may. m Us discretion, seal documents if the public's ri&lu of access is outweighed by competing Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 36 of 67 PageID# 954 Case l:13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 25 of 28 PagelD# 165 init-TWis"); see also Media Guneral Opmnions, Inc. v. Buchamn, 417 F3d, 424, 430 (4ih Cir. 2005); UnimJStates v. Disi. Court, 407 U.S. 297, 321 (1972) ("a warram application involves no public or adversary proceedings: iiis an cx pane request before u magistrate or judge"). In addition, the Coun here exercised its authority to seal pursuant to Local Rule 49(B), the vulidily of which Lavabii docs not conicst. Even if ihe Court did not have Ihis authority, Lavabit's reading of§2705(b) must be rcjcctcd, bccause ii would gut the essential function of non-disclosure orders and thereby disregard Congress' c!e:ir Inienl in passing §2705.. The Section allows courts lo delay notification pursuant lo §2705(a) or issue anon-disclosure order pursuant lo §2705(b) upon finding thai disclosure would risk enumcraled harms, namely danger lo ;i person's life or safety, night from prosccuiion, destruction of evidence, intimidation of witnesses, or seriously jeopardizing an investigation. 18 U.S.C. §§ 2705(a)(2)(A)-(E), (b)(l )-(5). li would make no sense for Congress lo purposefully authonze courts to limit disclosure of sensitive infomiation while simultaneously infending to allow the same information to be publicly acccssible in an unsealed court document. Finally, the implications Lavabit attempts lo draw from the mandatory sealing requircmenis of 18 U.S.C. §§ 2518(8)(b) and 3123(a)(3)(B) arc mistaken. While Lavabit chantcicrizes! those siatutes ns gninling courts the aulhorlly to seal Wiretap .-\ct and pen- trap orden, couns already had that authority. Those statutes have another elTccr: they removed discretion from courts by requiring that couns seal Wiretap Act orders and pen- trap orders. See 18 U.S.C. §251 S(8)(b) ("Applications made nnd orders granted under \hh ^hixpli^r shall bs xacileci by the judge") (empliasia iidticd); Id §3i23(a)(3)CB) C'Tlr-' record maintained under subpantgraph (A) be provided nx pane and vndar seal to Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 37 of 67 PageID# 955 Case l:13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 26 of 28 PagelD# 166 ilic court") (emphasis added). Congress' decision to leiivc that discretion in place in other siluaUons does not mean thai Congress believed thai only Wireiap Aci and pen-trap orders may be scaled. C. Supposedprivacy concmis do noi compel a common law right ofctrcaw 10 ihe sealed dociintciii:>. Lavabii's brief ends with an nrgumeni that privacy interests require a common l:uv right ofaccess. Moi. lo Unseal at 10-11. Uvabit. however, offers no legal basis for this Coun to adopt such ti novel argument, nor do the putative policy considerations Lavabit references out%veish the government's compelling imerest in preserN-ing (he secrccy of its ongoing criminal invcsligation. Indeed, the most compelhng mtcrest currently before the Court is ensuring thai the Court's orders requiring t3,al Mr. Levison and Uvabit comply with legilimalc monitoring be implemented forthwith and without additional delay, evasion, or resistance by Mr, Levison and Uvabn. Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 38 of 67 PageID# 956 Case l'13-ec-00297-TCB *SEALED* Document 11-17 Filed 09/20/13 Page 27of 28 PagelD# 167 CONCLUSION For the foregoing reasons, Lavabil's motions should be denied. Furthermore, the Coui-i shouid cnforce the Pen-Trap Order, Compliance Order, scarch wancini, and grand jur>' subpoena by imposing sanctions until Lavabil complies. Respectfully Submitted, NEILH.MACBRIDE Assistant United States .^nomey United Stales Aitomey's Officc 2500 Jiimieson Avc. Alt;xandria. VA 22314 703-299-3700 Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 39 of 67 PageID# 957 Case l-13-ec-00297-TCB*SEALED* Document 11-17 Filed 09/20/13 Page 28 of 28 PagelD# 168 certificath: of service I hereby cenily thai on July 31,2013,1 e-mailed a copy of ihe foregoing documcnl lo Ljivabii's Counsel of Record; Jesse R. Bimiali Broniey & Binnall, PLLC 10387 Main Street, Suite 201 Fairfax, VA 22030 Assistant United Stales Attorney United Slates Aitomey's OflKe 2100 Jnmieson Ave. Alexandria, VA 22314 703-299-3700 Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 40 of 67 PageID# 958 Case l-13-ec-00297-TCB *SEALED* Document 11-18 Filed 09/20/13 Page 1 of 16 PagelD# 169 ^dacted EXHIBIT 18 Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 41 of 67 PageID# 959 Casel'13-ec-00297-TCB*SEALED* Document 11-18 Filed 09/20/13 Page 2 of 16 PagelD# 170 redacted UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION IH THE MATTER OF THE NO. 1:13 EC 297 NO. 1:13 SW 522 NO. 13-1 APPLICATION OF THE UNITED STATES AUTHORIZING THE USE OF A PEN REGISTER/TBAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT IN THE MATTER OF THE SEARCH AMD SEIZURE OF INFORT-IATION IS STORED AND CONTROLLED AT PREMISES CONTROLLED BY LLC LAVABIT, IN RE GRAND JURY SUBPOENA UNDER SEAL Alexandria, Virginia August 1, 2013 i0;00 a.m. TRANSCRIPT OF HEARING DEFORE THE HONORABLE CLAUDE M. HILTON UNITED STATES DISTRICT JUDGE APPEARANCES: For ch-a United Scates: JaiivoS Trump, Esq. For Che Respondent: Jesse R. Court Reporter: Michael Ben'.Ary, Esq. Josh Goldfoot, Esq. Binnali, Esq. Tracy L. Westfall, RPR, CMRS. CCR Proceedings reported by rriachine shorthand, cranscript produced by computer-aided transcription. Tracy L. wesiiall c^h-USIic/f.dva Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 42 of 67 PageID# 960 Case 113-ec-00297-TCB *SEALED* Document 11-18 Filed 09/20/13 Page 3 of 16 PagelD# 171 UNDER SEAL 1 redacted " PROCEEDINGS 2 THE CLERK: 3 In re; Case Nos. 1:13 EC 297, 1:13 SVI 522, and Grand Jury No. 13-1. 4 5 MR. TRUMP: Good morning. Jim Trump on behalf of the United States. 6 THE COURT; 7 MR. BINNALL: 8 9 ^0 Good morning. Good morning, Your Honor. Jesse Binnall on behalf of Lavabit and Mr. Levison, THE COURT: All right. MR. BINNALL: May it please the Court. We're before 11 the court today on two aeparate motions, a motion to quash the 12 requicenent of Lavabit to produce its encryption keys and the 13 motion to unseal and lift the nondisclosure require!r.ents of 14 15 Mr. Levison. Your Honor, the motion to quash in thia arises because 16 the privacy of users is at - of Lavabifs users are at stake. 17 we're not simply speaking of the target ox this investigation. 18 We're talking about over 400,000 individuals and entities that 19 are users of Lavabit who use this service because they believe 20 their conununications are sscure. 21 By handing over the keys, the encryption keys in this 22 case, they necessarily become less secure. In this case it is 23 crue thai: the face oir. uhc warrant itself does limit tiio 24 documents or — and communications to be viewed 25 metadata to be viewed to the target of the case, •rc.c'/ 1.. Hestfaii oc3.-'Jscc.'B:>yA Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 43 of 67 PageID# 961 Case l-13-ec-00297-TCB "SEALED* Document 11-18 Filed 09/20/13 Page 4 of 16 PageiD# 172 UNDER SEAL RiDACTED 1 However, there is a lack of any sort of check or 2 balance in order to ensure that the — chat the encrypted data 3 or other Lavablt users remain secure. H case doesn't protect only content. 5 The encryption in this It protects Login data and the other — some of Che other metadata involved in this case. 6 We believe that this is not the least restrictive means 7 in order to provide the government the data that they are 8 looking for. 9 Specifically THE COURT: You have two different encryption codes/ 10 one for the logins and the messages that are transmitted. Vou 11 have another code that encrypts the content of the messages, 12 right? 23 3_4 MR. BINNALL: Your Honor, I believe that that is true. From my understanding of the way that this works is 15 that there is one SSL key. That SSL key is what is issue in 16 this case, and that SSL key specifically protects the n 18 communication, the over - the breadth of the communication itself from the user's actual computer to the server to make 19 sure that the user is comnmnicating with exactly who the user 20 intends to be communicating with, the server. 21 And that's one of the things that SSL doss. 22 that you're talking to the right person via e-mail and there's 23 not a so-called raan in che middle who's there to take Chat 24 message 25 It ensures away. THE COURT: Does that key also contain the code of the Trdcy L. Wesctfill OCR-OSDC/EDVS Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 44 of 67 PageID# 962 Case l-13-ec-00297-TCB *SEALED* Document 11-18 Filed 09/20/13 Page 5 of 16 PagelD# 173 redacted UNDER SEAL I message and interpret the message as well? ~ MR. BINNALL: My understanding is that it does, Your 3 Honor, but because that's not my technical expertise, I'm not '1 going to represent to the Court anything on that one way or 5 another. 6 But my underatanding is there is one general key here that is at issue. ; the COURT: Well, why would y.ou set up such? I mean, a 8 telephone, you've got telephone numbers and — 9 MR. 3INNALL: the COURT; Correct. — thoae can be traced very easily without II any locX at the content of the message nhafs chece. You-all 12 ^3 14 could have set up something the same way. HR. bINNALL: We could have, ^our Honor. Actually, if you're to — the court; So if anybody's - you're blaming the IG government for something that's overbroad, but it seems to me 17 that your client is the one that set up the system that's 18 designed not to protect that information, because you know thai: 19 chere needs to be access to calls thac go back and forth to one 20 person or another. And to say you can't do that just because 21 you've set up a system that everybody has to —has to be 22 unencrypted, if there's such a word, that doesn't seem to me to 23 bo a very persuasive argument. 24 25 MR. BINNALL: I understand the Court's point, and this is the way that I understand why ifs done that way. Tracy L. w^scfaii ccR-oscc/auvA Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 45 of 67 PageID# 963 Case l-13-ec-00297-TCB*SEALED* Document 11-18 Filed 09/20/13 Page 6 of 16 PagelD# 174 redacted ^ 1 There's different security aspects involved for people 2 who want to protect their privacy, and there certainly is the 3 actual content of the message themselves. 4 I would concede is the highest security interest. 5 That's certainly what But there's also the security interest to make sure 6 cha- they're communicating v/ith v.-ho you vjant to be coromunicating 7 with. 8 that is, at the end of the day, one of the rhings that secures 9 the content of the message. That is equally of a concern for privacy issues because In this case it is crue that most Internet service 11 providers do log, is what they call it, a lot of the metadata 12 that the government: wants in this case without that necessarily 13 being encrypted, things such as who something is going to, who 14 it's going from, the time it's being sent, the IP address from 15 which it is being sent. Ig n Lavabit code is not something that you buy off the shelf. is code that was cuscom made. It was cusnom nade in IS order to secure privacy ro the largest extent possible and to be 19 the most secure way possible for multiple people to comir.unicate, 20 21 and so it has chosen apecifically not to log that information. NOW, that is actually information that my client has 22 23 24 offered to start logging with the particular user in this case. iz is, however, someching that ia quite burdensome on him. T.c is something that would be custom code that would take between 25 20 to ^0 hours for him to be able to produce. We believe that Tracy L. Wesufall OCR-USDC/SDVA Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 46 of 67 PageID# 964 Case l'13-ec-00297-TCB *SEALED* Document 11-18 Filed 09/20/13 Page 7 of 16 PagelD# 175 redacted 1 i3 a better alternative than turning over the encryption key 2 which can be used to get the data for all Lavabit users. 3 ' I hope that addresses the Court's concern kind of wizh 4 regard to the metadata and v/hy it is not more — why Lavabit 5 hasn't created an encryption syscem that may honestly be more 6 within the mainstream, but this is a provider that specifically 7 was started in order to have to protect privacy interests more 8 than the average Internet service provider. 9 THE COURT: I I can understand why the system was set up, 10 but I think the government is - goverpjr.ent' s clearly entitled 11 to the informacion that they're seeking, and just because 12 you-all have set up a system that itiaV.es that difficult, that 13 doesn't in any way lessen the government's right to receive rhat 14 information just as they would from any telephone company or any 15 other e-mail source that could provide it easily. Whether 16 it's - in other words, the difficulty or the ease in obraining n the information doesn't have anything to do with whether or not 18 the government's lawfully entitled to the information. MR, BINNALL: It is — and we don't disagree that the 20 government is entitled to the information. We actually 21 THE COURT: Well, how are we going to gee it? I'm 22 going to have to deny your motion to quash. It's just not 23 24 overbroad. The governmant' s askiiig for a very narrow, specirrc bit of information, and it's information that they're entitled 25 to. Tracy I. •.fostisll oCii-ussc/EDVA Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 47 of 67 PageID# 965 Case l;13-ec-00297-TCB *SEALED* Document 11-18 Filed 09/20/13 Page 8 of 16 PagelD# 176 UtTOER SEAL redacted Now, how are we going co vfork out that, they get it? MR. BINNALL: Your Honor, what I would atill say is the best method for them to get it is, first of all, there be some 4 way for chere to be some sort of accountability other than jus" 5 relying on the government to say we're not going to go outside 6 the scope of the warrant. 7 This is nothing that is, of course, personal against 8 the government and the, you know, very professional law 9 enforcement officers involved in this case. But quite simply, 10 T:he way Che Constitution is set up, iii's set up in a way to 11 ensure that there's some sort of checks and balances and 12 accountability. THC COURT; 14 What checks and balances need to be sec up? ^;R. BINNALL: the COURT: Well -Suggest something to me. MR. BINtmLL; I think that the least restrictJ-ve means n possible here is that the government essentially pay the 18 reasonable expenses, meaning in this case my client's extensive 19 -pg labor costs to be capped at a reasonable amount. the COURT: Has the government ever done that in one or 21 these pen register cases? 22 MR. BIKNALL: 23 THE COURT: 24 MR. BINNALL: 25 these than I have. Not that I've found, Your Honor. I don't think so. I've never known of one. And Your Honor's certainly seen more of ^ Trot-y Woatfaj-l OCP.-O.SOC/EUVA Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 48 of 67 PageID# 966 Case l;13-ec-00297-TCB "SEALED* Document 11-18 Filed 09/20/13 Page 9of 16 PagelD# UNDER SEAL - ^Dacted 1 THE COURT; 2 So would it be reasonable to start now with your client? 3 MR. BINNALL: 4 an unusual case. I think everyone would agree that this is And that this case, in order to protect the 5 privacy of /lOO, 000-plus other users, some sort of relatively 6 small manner in which to create a log syiitem fcr this one user 7 to give the government the metadata that they're looking for is 8 the least restrictive mean here, and we can do that in a v/ay 9 that doesn't compromise the security keys. This is actually a way that my client the COURT: 12 You want to do it in a way than th« government has to trust you 13 MR. 8IN^5ALL: Yes, Your Honor. 15 'jHE COURT: — to come up with the right data. MR. BINNALL: That's correct, Your Honor. the COURT; And you won't trust the government. So why i7 would the government trust you? ig HR. BINNALL: Your Honor, because that's wnac nhe oasis 19 of Fourth Amendment law says is more acceptable, is that the 20 governir.ent is tihe entity that you really need the checks and 21 balances on. 22 Mow, 23 the COURT; I don't know that the Fourth Amendment says 24 25 that. my — This is a criminal investigation. MR. BIMNALL; That is absolutely correct. Ttacy L. WascraiL 0CR-USDC/EDV?1 Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 49 of 67 PageID# 967 Case l:13-ec-00297-TCB *SEALED* Document 11-18 Filed 09/20/13 Page 10 of 16 PagelD# 178 5^ THE COURT; redacted ® A criminal investigation, and 1 don't knov.- that the Fourth Ainendment says that Che person being investigated heiro is entitled to more leeway and mote rights than the government is. MR. BINNALL: there. I don't knov,'. There certainly is a balance of povier I, of course, am not here to represent the interest of ^l^m^lllllll I'm here specifically looking over my client who has sensitive data — THE COURT: I understand. working out something. I'm trying to think of I'm not sure you're suggesting anyching to me other than either you do it and the government hds to trust you to give them whatever you want to give them or ycu have to trust the government that they're not going ;:o go inco vour other files. Is there some other route? WR. BINNALL: 1 would suggest that the government I'm sorry — that the Court can craft an order to say that we can — that we should work in concert with each other in order to come up with this coding system that gives the government all of the metadata that we can give them through this logging procedure that we can install in the code, and then using that as a least restrictive means to see i£ that can get the govBrnment the information that they're looking for on the specific account. THE COURT: HOW long does it take to install that? Trai;y L. waatCall OCR-UEC-C/KDVA Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 50 of 67 PageID# 968 Case l'13-ec-00297-TCB *SEALED* Document 11-18 Filed 09/20/13 Page 11 of 16 PagelD# 179 UNDER SEAL MR. BINNALL: REDACTED I mean, 20, 40 hours. So I v;ouicl suggest Chat would probably be a week to a week and a half, Your Honor, although I would be willing to talk to my client to see if we can get that expedited. THE COURT: To install it? MR. BINNALL: THE COURT: Well, to write the code. Vou don't have a code righc at che moment. You v;ould have to write something? MR. BINNALL: 'That's correct. And the portion of tne government's brief that talks about the money that he was looking £or is that reasonable expense for him basically to do nothing for that period of time but write code to install in V. take the data it in order to data fromlH^Hand from^^j^^and put put it xn aa way way that tnat , the government will see the logged metadata involved. the COURT: All right. I think I understand your position. I don't think you need to argue this motion to unseal. This is a grand jury matter and part of an ongoing criminal investigation, and any motion to unseal will be denied. MR. i3Il-!NALL: If I could have the Court's attention •just on one issue of the nondisclosure provision of this. And I understand the Court's position on this, but there is other privileged communications if the Court would be so generous as to allow me very.briefly to address that issue? There's other First Amendment considerations at issue with not necessarily just Che sealing of this, but what Tr4cv L. Kastfall OCR-OSOC/Et;VA Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 51 of 67 PageID# 969 Case l:13-ec-00297-TCB *SEALED'' Document 11-18 Filed 09/20/13 Page 12 of 16 PagelD# l^ER SEAI. 1 REDACTED Mr, Levison can disclose and to whom he may disclose it. 2 The First Amendment, of course, doesn't just cover 3 speech and assembly, but the right to petition for a redress of 4 grievances. 5 a statute that is very much in the public eye and involving 6 issues that are currently pending before Congress, 7 8 We're talking about a statute here, and, honestly, I think the way that the order currently is written, besides being — 9 THE COURT: 10 'iou're talking about the sealing order? BINNALL; I'm calking about the sealing order and 11 the order that prohibits Mr. Levison from disclosing any 12 information. 13 How, we don't want to disclose — we have no intention 1.1 oJ; disclosing the target, but we would like to be able to, tor 15 instance, talk to members of the legislature and their staffs 16 about rev;riti.ng this in a way tnat s ^7 the COURT: No. This is an ongoing criminal 18 investigation, and there's no leeway to disclose any information 19 about 20 21 1 it. MR. BINNALL: And so at that point it will remain with only Mr. Levison and his lawyers, and we'll keep it at that. 92 THE COURT: Let me hear from Mr. Trump. 23 Is there some way we can work this out or something 24 25 that I can do with an order that will help this or what? MR. TRUMP! I don't believe so, Your Honor, because Tcicy L. Weacfoil CC?.-USDC/EDVft Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 52 of 67 PageID# 970 Case l-13-ec-00297-TCB *SEALED* Document 11-18 Filed 09/20/13 Page 13 of 16 PagelD# 181 UNDER SEAL ^2 redacted 1 you've already articulated the reason why is that anything done 2 by Mr. Levison in terms of writing code or whatever, we have to 3 truf5r. Mr. Levison than we have gotten the information that we 4 were entitled to get since June 28th. He's had every 5 opportunity to propose solutions to come up with ways to address 6 his concerns and he simply hasn't, 7 We can assure the Court that the way Chat this would S operate, while the metadata stream would be captured by a 9 device, tha device does not download, does not store, no one 10 11 lookh! at it. It filters everything, and at the back end of the filter, we get what we're required to get ur.der the order. ^2 So there's no agents looking through the 100,000 orhsr 13 bits of information, customers, whatever. No one looks ac thfin, 1^. no one stores it, no one has access to it. All we're going to 15 look at and all we're going to keep is what is called for under 16 the pen register order, and that's all we're asking this Court n to do. THE COURT: All right. Well, I think that's 19 reasonable. So what is this before me for this tnorning other 20 than this motion to quash and unseal which I've ruled on? TRUMP: 22 23 2-1 25 The only thing is to order the production of the encryption keys, which just the COURT: Haon't that already been done? There's a subpoena for that. 5v5R. TRUMP: There's a search v/arrant for it, the motion Tracy I.. Wesufoll OCR-USOC/SIUVA Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 53 of 67 PageID# 971 Case l:13-ec-00297-TCB *SEALED* Document 11-18 Filed 09/20/13 Page 14 of 16 PagelD# 182 UNDER SEAL redacted to quash. THE COURT: Search warrant. MR. TRUMP: Excuse me? THE COURT: I said subpoena, but I meant search MR. TRUMP: We issued both, Your Honor, but Your Honor warrant. authorized the seizure of Chat information. And we would esk the Court to enforce that by directing Mr. Levison to turn over the encryption keys. If counsel represents that that will occur, we can not waste any nore of the Court's uime. If he represents .hat Mr. Levison will not turn over the encryption keys, then we have to discuss what remedial action this Cour". can take to require ccmpiiance with that order. THE COURT: Well, I will order the production of those — of those keys. Is that simply Mr. Levison or is that the corporation as well? MR. TRUMP: That's one and the same. Your Honor. Just so the record is clear. We understand from Mr. Levison that the encryption keys were purchased conunercialiy. They're not somehow custom crafted by Hr. I.eviaon. He buys them from a vendor and then they're installed. THiC COURT: Well, I will order that. If you will Tracy L. HustCall CCR-US0C/EOVA Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 54 of 67 PageID# 972 Casel:13-ec-00297-TCB*SEALED* Document 11-18 Filed 09/20/13 Page 15 of 16 PagelD# 183 redacted ^ 1 present an order co me, I'll enter it later on. 2 MB. TRUMPi Thank you. 3 MR. BINNALL: 4 As far as time frame goes, my client did ask me if ^:he Thank you, Your Honor. 5 Court did order this if the Court could give him approximately 6 five days in order to actually physically get the encryption 1 keys here. 8 time frame to get the encryption keys here and in the 9 government's hands. He did ask me to ask exactly the manner And so it will be — or just some sort of reasonable 10 that those are to be turned over. 2^^ TRUMP: lOur Honor, we understand that this can be 12 done almost instantaneously, as soon as Mr. Levison makes 13 contact with an agent in Dallas, and we .would ask that he be 14 given 24 hours or less to comply. This has been going on for a 15 month. the COURT: Yeah, I don't think 2^ — 24 hours would be l-J reasonable. Dcesn'c have to do it in the next few minutes, but 10 19 I would think something like this, it's not anything ne has to amass or get together. It's just a matter of sending sonenhing. 20 So I think 24 hours would be reasonable. 21 MR. BINNALL: 22 THE COURT: All eight- 23 MR. TRUMP: V.'e will. Your Honor. 2^ THE COURT: All right. 25 Yes. Thank you. Your Honor. And you'll present me an order? Thank you. Thank you-all, and v/e'll adjourn until —or stand in recess till 3 o'clock. Tracy L. Weattall Well, OCR-'JSDC/EDVA Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 55 of 67 PageID# 973 Case l-13-ec-00297-TCB *SEALED* Document 11-18 Filed 09/20/13 Page 16 of 16 PagelD# 184 UNDER SEAL REDACTED 1 cecess till 9 o'clock tomorrow inorning. (Proceedings concluded at 10:25 a.m. CERTIFICATION I certify, this 19th day of August 2013, that the foregoing is a correct transcript from the record of proceedinqs in the above-entitled matter to the best of my ability. Tracy Westfall/ RPR/. OCR Tracy L. Wastfall OCB-JSEC/EDVA Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 56 of 67 PageID# 974 Case 113-ec-00297-TCB *SEALED* Document 11-19 Filed 09/20/13 Page 1 of 3 PagelD# 185 EXHIBIT 19 Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 57 of 67 PageID# 975 Case l:13-ec-00297-TCB *SEALED* Document 11-19 Filed 09/20/13 Page 2of 3PagelD# 186 REDACTED IN THE WITED STATES DISTRICT COURT FOR THE EASTERK DISTRICT OF VIRGINIA Alexandria Division IK 'niE MAITER 01- THE APPIiCAT[ON OF 'n-IE UNITED STATES OF AMERICA FOR AN ORDER AUTPIORIZINQ 'il-IE USE OF A PEN REGISTERTRAP AND TRACE DEVICE ON AM ELECTRONIC MAIL ACCOUNT IN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION ASSOCIATED \VITH IS STORED AT PRE^QSES CONTROLLED BYLAVABrTLLC In re Grand Jury r- ) UNDER SEAL ) ) No. 1;13EC297 ) AUG I 2013 ci®K.iii,«STaiacocfn ) No.l:13SW522 ) ) ) ) ) No. 13-1 ORDER DEm'ING MOTIONS This matter comes before Ihc Court on the motions of Lavabit LLC and Ladar Levinsoa, its owner and operator, to (1) quash the grandjury subpoena and search and seizure warrant compellingLavabit LLC to provide the government with encryption keys to facilitate the installation and use ofapen register and trap and trace device, and.(2) unseal court records and remove anon-disclosure oiticr relating to these proccedinES. For the reasons stated fiom the bench, and as set forth in the government's response to the motions, it is hereby ORDERED that the modou toquash and motion lo unseal arc DENIED; It isfurther ORDERED thai, by 5pjn. CDT on August 2,2013, Lavabit LLC and Ladar Lcvison shall provide thu Bovemiiieni with the encryprion keys and luiy other "inforraacion, facilities, and teclinical assistance necessary to accomplish the installDtion and use ofthe pen/trap Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 58 of 67 PageID# 976 Case l:13-ec-00297-TCB *SEALED* Document 11-19 Filed 09/20/13 Page 3of 3PagelD# 187 de%'icc" as required by the July 16,2013 seizure wammt and the June 28. 2013 pen regib-lCT order, It is Micr ORDERED tot this Order staU OTisln seal uiltil further order ofto Court. /jl Claude M. Hilton United States District Judge Alexandria, Virginia August I .2013 Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 59 of 67 PageID# 977 Case l:13-ec-00297-TCB *SEALED* Document 11-20 Filed 09/20/13 Page 1of 13 PagelD# 188 heda EXHIBIT 20 Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 60 of 67 PageID# 978 Casel'13-ec-00297-TCB*SEALED* Document 11-20 Filed 09/20/13 Page 2of 13 PagelD# IN TI-IE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGHsTA Alexandria Division INTHEMA'ITEROFTHE underseal APPLICATION OF THE UNITED ) STATES OF/AMERICA FOR AN ORDER ) No.l:13EC297 AUTHORIZING THE USE OF A PEN REGlSTERn"RAP AND TR-ACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT ) ) ) INTITE MATTER OF THE SEARCH AND ) SEIZURE OF INFORMATION — s F, I L E H U a£*x.u.s.[i«!=icTC?'.'Ri ASSOCIATED WITH ) No. 1:13SW522 ) STORED AT PREMISES CONTROLLED BY I..AVABIT LLC ) ) In rc Grand Jury ) No. 13-1 I AiDEM-Hiii MOTION FOR SANCTIONS Tlic United Stales, through ihe undersigned counscl, pursuant to Title 18, United Slates Code, Section 401. licreby moves for ihc issuance of an order imposing sanctions on Lavabit LLC and Ladar Levi.son, its owner and operaior, for Lavabit's failure to comply with this Court's order entered August 1. 2013. h\ support of this motion, the United Slates represents: 1. At Die hearing on August 1,2013, this Court directed Lavabit to provide the government with the encryption keys necessary for the operation ofa pen register/trap and trace order entered June 28,2013. Lavabit was ordered to provide those keys by 5 p.m. on August 2, 2013. See Order Denying Motions entered August 2,2013. 2. Atapproxin^nicly 1:30 p.m. CDT on August 2, 2013, Mr. Levison gave thu FBI a printout ofwhat he represented to be ihe encryption keys needed to operate the pen register. Tlsis =- Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 61 of 67 PageID# 979 Case l:13-ec-00297-TCB *SEALED* Document 11-20 Filed 09/20/13 Page 3 of 13 PagelD# 190 REDACTED printout, in what appears lo be 4-point t>pe. consists of 1i pages of largely iltCiiibiv charactcrs. See Attachment A. (Tl\e atiachment was created by scanning the document provided by Mr. Levison; the original document was described by ihc Dallas FBI agents as slightly dearer than ihe scanned copy bm nevertheless illegible.) Monsover, each of the uvc encryption keys contains 512 individual characters-or a lota! of 2560 charactcrs. To make use of these keys, the FBI would have to manually input all 2560 characters, and one incorrcct keystroke in this laborious proccss would render the FBI collection system incapable ofcollecting dcciypitid data. 3. At approximuicly j'.3Q p.m. EDT (2:30 p.m. CDT)i Ibc undersigned .'•\USA contacted counsel for l.avabit LLC and Mr. Levison and informed him thai the hard copy format for receipt of the encryption keys was unworkable and thai the government would need the keys produced in eiectromc format. Counsel responded by email at 6:50 p.m. EDT stating that Mr. Levison "thinks" iie oui have an electronic version of the keysproduced by Monday, Aiigust 5. 2013. 4. On August 4, 2013, the undersigned AUSA sent an e-mail to counscl for Lavabit LLC and Mr. Levisot\ stating thatwe especi io reccive an electronic version of the encriistion keys by 10:00 a.m. CDTon Monday, August 5, 2013. The e-mail indicated that we expect ihc keys to be produced in PEM format, an industry standard file format for digitally representing SSL keys. See Attachment B. The e-mail further staled that the preferred medium for receipt of these keys would be a CD hand-delivered to the Dallas office of ihc FBI (with which Mr. Levison is familiar). The undersigned AUSA informed counsel for Lavabit LLC and Mr. Levison thai the government would seek an order imposing sanctions if wc did not receive the encryption keys in electronic formal by Monday morning. Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 62 of 67 PageID# 980 l'13-ec-00297-TCB *SEALED* Document 11-20 Filed 09/20/13 Page 4of 13 PagelD# 191 3. The sovcmmcni did noi rcceive ihs electronic keys as requested. The undersigned AUSA spoke with counsel for Lavabii and Mr. Levison at approximately 10:00 a.m. this morning, and he stated that Mr. Levison miglit be able lo produce the keys in electronic format by 5p.m. on Ausust 5. 2013. The undersigned AUSA told counsel that v,bs not acceptable given that il should take Mr. Levison 5lo 10 minmes to put tlie keys onto aCD in PEM formal. Tlie undersigned AUSA told counsel that if there was some reason why it cannot be accomplished sooner, to let him know by 11:00 a.m. this morning. The govemmenl has not received an answer from counsel, 6. The government therefore moves the Court to impose sanctions on Lavabit LLC and Mr. Levison in the amount of $5000 per day beginning at noon (EDT) on August 5.2013. and continning cach day in the same amount until Lavabit LLC and Mr. Levison comply \Ynh this Court's orders. 7. As noted, Attachment Alo this motion is acopy of the printout provided by Mr. Levison on August 2,2013. Attachment Bis nmore detailed explanation of how these encry^ption keys can be given to the FBI in an electronic format. Attachment Cto this motion is a proposed order. Case 1:13-sw-00522-CMH Document 36-30 Filed 02/24/16 Page 63 of 67 PageID# 981 Case l-13-ec-00297-TCB *SEALED* Document 11-20 Filed 09/20/13 Page 5of 13 PagelD# Xd2 8. Acopy of Uiis moiion. filed under seal, was delivered by email lo counsel for Lavabit LLC on Augusi 5,2013. Respectfully submitted, Nei! H. MacBridc UHiied Slates Aaomcy Uniiod States Attorney'U^tncc Justin \V. 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J • •••., •, , '.'I • .V < • ,7 A1 r -r" >/< JuV. •%'!•• iir :•H - ' J.*'' J.'vt-.v.'f ••:•. y.viC'-' •J If.• —..iiJiw.ri;;---^••.>>, 11 'X V •I'll t." I t •' -.i-.'.. : v v i l l " ' * • -. •> 1 ; • . M l - : > >• -VV'-'--''- 1,* <• , Mo;':: • • •• • _ 4.'vI'f** ••• X.T v.*. • ••.;i "^.*1. ' - Case 1:13-sw-00522-CMH Document 36-31 Filed 02/24/16 Page 3 of 15 PageID# 988 Case l"13-ec-00297-TCB *SEALED* Document 11-20 Filed 09/20/13 Page 12 of 13PagelD# 199 redacted . 't : '% • * j •. . >» vr*' U • ' « • .» 'fj*. v«;>. *'•'* • • • VM '1 • •I'W" i\» •.<?!* •i.NJj? - i I ';i,-ii!I-•'-•/'M.Vj'i.vrvn.r-t^:; ' ' - « I •i.t.i.-.i I'M ••• •••• Ji • -'v •If. t .1 • • . • r IJ'. .•••1.1 •» . - ii t ,1 If >>\ H' I' • It '* ' ^ ..•.I f.v. i I 1* V I •j ••li llV-'. . i,'.M :•>• ikVi'-* • . ,<! ' r,,' '^vVr.' ;•••• . • ' . • •• fc»" -r •« V*' '* •• "TiiMr ..f -f/.•N'-'-v. H,-.; • «-*,*o A* - ••,•• ;•• ....c-," i •irM'i'/.'"" v.' " I-' ' •''' •" I.»v-r.«r'.' Case 1:13-sw-00522-CMH Document 36-31 Filed 02/24/16 Page 4 of 15 PageID# 989 Case l-13-ec-00297-TCB*SEALED* Document 11-20 Filed 09/20/13 Page 13 of 13 PagelD# 200 redacted AITACHMENTB Lavabit uses 2048-bit Secure Socket Layer (SSL) certificates purchased from GoDaddy to encrypt comraunication between users and ils server. SSL ep.cr>T3tion employs public-kay cryptography, in which both ihe sender iind receiver each have iwo mathematically linked keys: a ••public" key and a "pi ivate" key. "Public" keys arc published, but "private" keys arc not. In this circumstance, a Lavabit customer uses Lavabil's published public key to initiate an cncrypled email session with Lavabit over the internet. Lavabil's scmrs then decrypt this u-affic using their private key. The only way to deciypt this traffic is tluough the usage of this private key. .A SSL eerlificale is another name for a published public key. To obtain a SSL cenificaie from GoDaddy. a user needs lo first generate a 2Q48-bit private key on his/her computer. Depending on the operating system and web ser\'cr used, there are multiple ways to generate a private key. One ofthe more popular methods is to use a freely availnble commatid-line too! called OpeiiSSL. This generation also creates a cenificaie signing request file. Tlie user sends this file lo the SSL generaiion auiliority (e.g. GoDaddy) and GoDaddy then sends back the SSL certificate. The private key is not sent lo GoDaddy and should be retained by ihe user. This private key is stored on the user's web server to permit decryption ofinicmci irafTic. as described above. The FBI's collection system that will be installed to implement the PRnT also requires the private key lo be stored to decrypt Lavabit email and imemet iratTic. This decrypted iraffic v/ili then be filtered for the target email address specified in the PR/TT order. Depending on how exactly the private key was first generated by ihe user, it itself may be encrypted and protected by apassword supplied by the user. This additional level of security is useful if. for example, a backup copy ofthe private key is stored on a CD, Ifthat CD was tost or stolen, the priN'aie key v,'ould no! be compromised because apassword would be required to access it. l-iowcvcr, ilic user that generated chc private key would have supplied it at generation time and would thus have knowledge ofit. The OpenSSL loo! described above is capable of decrypting encry])ted private keys and converting the keys lo anon-encrypted fom-ini with a simple, wcli-documcnted command. The FBI's collection system and most web servers requires the key to be stored in a non-enciypicd format. A2048-bil key is composed of 512 characters. The standard practice ofexchanging private SSL keys between entities is to use some electronic medium (e.g., CD orsccurc intcmei exchange). SSL keys are rarely, if ever, exchanged verbally orliu-ough print medium due to their long length nnd possibility ofhuman error. Mr. Levison has previously stated that Lavabit actually uses five separate public/private key pairs, one for each type of mail protocol used by Lavabit. PF.M Ibrmat is industry-standard file format for digitally representing SSL keys. PEM files can easily bi: creaicd using the OpcnSSL loo1 described above. The preforrsd medium for receiving these keys would be on a CD. Case 1:13-sw-00522-CMH Document 36-31 Filed 02/24/16 Page 5 of 15 PageID# 990 Case l-13-ec-00297-TCB *SEALED* Document 11-21 Filed 09/20/13 Page 1 of 3 PagelD# 201 redacted EXHIBIT 21 Case 1:13-sw-00522-CMH Document 36-31 Filed 02/24/16 Page 6 of 15 PageID# 991 Case l-13-ec-00297-TCB *SEALED* Document 11-21 Filed 09/20/13 Page 2 of 3 PagelD# 202 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRJCT OF VIRGINIA Alexandria Division IK TKE MATTER OF THE application of THE UNITED STATES OF AMERICA FOR AN ORDER authorizing THE USE OF A PEN REGiSTER^TRAP AND TR.ACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT ) UNDER SEAL ) No, 1;13EC297 ) ) ) ) IN THEMATTER OFTHE SEARCH AND SEIZURE OF INFORMATION A<;<;nciATED WITH ) ) ) No, l:13SW522 STORJiD AT PREN'USES CONTROLLED BYLAVABITLLC ) ) ) In rc Grand Jury )) No. 13-1 ORDER This nwiier conies before: the Court on the motion of the government for sanctions for failure to comply with this Court's order entered August 2,2013. For the reasons stated in the oovemmenfs motion, and pursuant to Title 18. United States Code. Section 401. it is hereby ORDER.ED that the motion for sanctions is granted; It is further ORDERED Hut. ifthe encrypiion keys necessary to implement the psn register and trap EU\d truce device are not provided to the FBI in PEM or equivalent electronic fonnal by noon (CDT) on August 5, 2013, afine of five thousand dollars (55,000,00) shali be imposed on Lavabil LLC and Mr. Levison; Uis further ORDERED that, if the encryption keys nccessary to impletncm the pen register and trap and trace device are not provided to the FBI in PEM or equivalent elecuonic Case 1:13-sw-00522-CMH Document 36-31 Filed 02/24/16 Page 7 of 15 PageID# 992 Case l'13-ec-00297-TCB'SEALED* Document 11-21 Filed 09/20/13 Page 3 of 3 PagelD# 203 format by noon (CDT) each day thereafter beginning Augusi 6,2013. a fine offive thousand dollars ($5,000.00) shaii be imposed on Lavabil LLC and Mr. Levison for each day ofnoncompliance; and li is further ORDERED that the government's motion for snnclicns and this Order shall remain under seal until further order of this Court. Is/ Claude M. Hilton United States District Judge .Mexandria. Virginia August S~ . 2013 Case 1:13-sw-00522-CMH Document 36-31 Filed 02/24/16 Page 8 of 15 PageID# 993 Casel-13-ec-00297-TCB*SEALED* Document 11-22 Filed 09/20/13 Page 1 of 5 PagelD# 204 EXHIBIT 22 Case 1:13-sw-00522-CMH Document 36-31 Filed 02/24/16 Page 9 of 15 PageID# 994 Case l-13-ec-00297-TCB *SEALED' Document 11-22 Filed 09/20/13 Page 2 of 5 PagelD# 205 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE FILED UNDER SEAL APPLICATION OF THE UNITED STATES AUTHORIZING THE USE OF A PEN REGISTER/TRAP and TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT No. 1:13EC297 IN THE MATTER OF THE SEARCH and SEIZURE OF INFORMATION ASSOCIATED WITH No. 1:13SW522 ^^SeSn^ONTOOLLED AT PREMISES CONTROLLED BY LAVABIT LLC NOTICE OF APPEAL NoUce is hereby given that Lavabit LLC ("Lavabit") and Mr. Ladar Levison ("Mr. Levison") in the above named case, hereby appeal to the United States Court of Appeals for the Fourth Circuit from the Orders of this Court entered on August 1, 2013 and August 5, 2013. LAVABIT LLC LADAR LEVISON By Counsel jdJsc R. BmM, VSB# 79292 m/bnley 85 BinnalL PLLC rose? Main Street, Suite 201 Fairfax, Virginia 22030 (703) 229-0335 - Telephone {703} 537-0780 - Facsimile jbinnall@bblawonline.com Counselfor Lavabit LLC Case 1:13-sw-00522-CMH Document 36-31 Filed 02/24/16 Page 10 of 15 PageID# 995 Case l'13-ec-00297-TCB *SEALED* Document 11-22 Filed 09/20/13 Page 3 of 5 PagelD# 206 ^J^acted Cftrtilicate of Service I certify that on this 15th day of August. 2013, this Notice of Appeal was emailed and mailed to the person at the addressee listed below: United States Attorney's Office Eastern District of Virginia 2100 Jamieson Avenue Al/»iranHria. VA 22314 Jesse/Rj^innail Case 1:13-sw-00522-CMH Document 36-31 Filed 02/24/16 Page 11 of 15 PageID# 996 Case l:13-ec-00297-TCB *SEALED* Document 11-22 Filed 09/20/13 Page 4 of 5 PagelD# 207 redacted IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexaxidria Division FILED UNDER SEAL No. 13-1 In re Grand Jury NOTICE OF APPEAL Notice is hereby given that Lavabit LLC ("Lavabit") and Mr. Ladar Levison ("Mr. Levison") in the above named case, hereby appeal to the United States Court of Appeals for the Fourth Circuit from the Orders of this Court entered on August 1,2013 and August 5, 2013. LAVABIT LLC LADAR LEVISON By Counsel R. BWnalirVSBfl 79292 B^ley &Bmnall, PLLC ld387 Main Street, Suite 201 Fairfax, Virginia 22030 (703) 229-0335 - Telephone (703) 537-0780 - Facsimile jbinnall@bblawonHne.com Counsel for Lavabit LLC Case 1:13-sw-00522-CMH Document 36-31 Filed 02/24/16 Page 12 of 15 PageID# 997 Case l;13-ec-00297-TCB *SEALED* Document 11-22 Filed 09/20/13 Page 5 of 5 PagelD# 208 redacted Certificate of Service I certify that on this 15th day of August, 20L3, this Notice of Appeal was emailed and mailed to the person at the addresses listed below: United States Attorney s Omce Eastern District of Virginia 2100 Jamieson Avenue Case 1:13-sw-00522-CMH Document 36-31 Filed 02/24/16 Page 13 of 15 PageID# 998 Case l-13-ec-00297-TCB "SEALED* Document 11-23 Filed 09/20/13 Page 1 of 3 PagelD# 209 redacted EXHIBIT 23 Case 1:13-sw-00522-CMH Document 36-31 Filed 02/24/16 Page 14 of 15 PageID# 999 Case l'13-ec-00297-TCB'SEALED* Document 11-23 Filed 09/20/13 Page 2 of 3 PagelD# 210 redacted IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE APPLICATION OF THE UNITED STATES authorizing THE USE OF A PEN REGISTER/TRAP and TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT FILED UNDER SEAL No. 1:13SW522 IN THE MATTER OF THE SEARCH and SEIZURE OF INFORMATION AfisnciATP'.n WITH • H mi ^^pHAT STORED AND CONTROLLED AT PREMISES CONTROLLED BY LAVABIT LLC NOTICE OF APPEAL Notice is hereby given that Lavabit LLC ("Lavabit") and Mr. Ladar Uvison ("Mr. Levison") in the above named case, hereby appeal to the United States Court of Appeals for the Fourth Circuit from the Orders of this Court entered onAugust 1, 2013 and.August 5. 2013. LAVABIT LLC LADAR LEVISON By Counsel f eR. Binn^g^SB#79292 iley 8s Binnall, PLLC 57 Main Street, Siiite 201 I'ajrfax, Virginia 22030 (703) 229-0335 - Telephone (703) 537-0780 - Facsimile jbinnall@bblawonline.cora Counsel for Lavabit LLC Case 1:13-sw-00522-CMH Document 36-31 Filed 02/24/16 Page 15 of 15 PageID# 1000 Case l-13-ec-00297-TCB *SEALED* Document 11-23 Filed 09/20/13 Page 3 of 3 PagelD# 211 ^2) nftrtificate of Service Icertify that OB this 16th day of August, 2013 this Notice of Appeal was emailed and mailed to the person at the addresses hsted below. United States Attorney's Office Eastern District of Virginia 2100 Jaraieson Avenue Alexandria. VA 223 L4 . . Binnall Case 1:13-sw-00522-CMH Document 36-32 Filed 02/24/16 Page 1 of 2 PageID# 1001 I IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA OCT ALEXANDRIA DIVISION L E 2 2013 CLERK, as. DISTRICT CDUm AUXANOBlA.VISGimS [NTHB MATTER OF THE NO. 1:13 EC 297 APPLICATION OF THE UNITED STATES AUTHORIZING THE USE OF A PEN REGISTER/TRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL redacted ACCOUNT IN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION ASSOCIATED WITH NO. 1:13 SW 522 THAT IS STORED AND CONTROLLED AT .PREMISES CONTROLLED BY LAVABIT LLC IN RE GRAND JURY SUBPOENA NO, 13-! UNDERSEAL .ORDER The United Slates has proposed partially unsealing records in this matier due (o public disclosures made by Ladar Levison and Lavabit, LLC and for the purpose ofcreating a public record for Mr. Levison's appeal, The Court has considered the original scaling orders, the motions in support of the original sealing ordcr.s, the government's cx partc motion to unseal certain documents, and the prior pleadings of Mr, Levison, and hereby tlnds that; (1) the govemraent has a compelling interest in keeping certain infonnation in the documenis sealed, and ihe govemmcm has proposed redacted versions of the documents thai minimizes the information under seal; (2) rhe government's interest in keeping the redacted material sealed outweighs any public interest in disclosure; and Case 1:13-sw-00522-CMH Document 36-32 Filed 02/24/16 Page 2 of 2 PageID# 1002 ^Dacted (3)having considered alternatives to the proposed redactions none will adequately protect that interest; it is hereby ORDERED that the redacted versions of certain records filed in the above capiioned matter are partially unsealed. Theunsealed records are attached to this Order. To theextent any such record is covered by a non-disclosure Order issued pursuant to 18 U.S.C. § 2705(b), the non-disclosure obligation does not apply to the unsealed, redacted version of the document. The Clerk of the Court may publicly release the redacted version of any of the records attached to this Order. Any record not attached to this Order, as well as the unredacted copies of any record filed in the above-captioned matter, including the government's exparte, sealed Motion to Unseal and Statement of Reasons will remain sealed until further Order of the Court. The Honorable Claude M. Hilton United States District Judge Date: 2-. Alex^dria, VA 'W Appeal: 13-4625 Doc: 66 Filed; 04/16/2014 Pg: 102/24/16 of 41 Case 1:13-sw-00522-CMH Document 36-33 Filed Page 1 of 41 PageID# 1003 '^DACTED UNITED STATES FOR THE No. I n Re: COURT OF APPEALS FOURTH CIRCUIT 13-4625 UNDER SEAL UNITED STATES OF AMERICA, Plaintiff - Appellee, LAVABIT, LLC.; LADAR LEVISON, Parties-in-Interest - Appellants AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA; EMPEOPLED, LLC.; ELECTRONIC FRONTIER FOUNDATION, Amici Supporting Appellants. No. In Re: 13-4626 GRAND JURY PROCEEDINGS UNITED STATES OF AMERICA, Plaintiff - Appellee, Appeal; 13-4625 Doc; 66 Filed; 04/16/2014 Pg; 202/24/16 of 41 Case 1:13-sw-00522-CMH Document 36-33 Filed Page 2 of 41 PageID# 1004 LAVABIT, LLC.; LADAR LEVISON, Parties-in-Interest - Appellants. AMERICAN UNION CIVIL OF LIBERTIES VIRGINIA; UNION; EMPEOPLED, AMERICAN LLC.; CIVIL LIBERTIES ELECTRONIC FRONTIER FOUNDATION, Amici Supporting Appellants. Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. {1:13-sw-00522-CMH-l; 1:13-dm-00022-CMH-l) Argued: January 28, Decided: 2014 Before NIEMEYER, GREGORY, and AGEE, April 16, 2014 Circuit Judges. Affirmed by published opinion. Judge Agee wrote the opinion, which Judge Niemeyer and Judge Gregory joined.' ARGUED: Ian James Andrew Peterson, Samuel, New OFFICE OF York, THE New York, UNITED in for Appellants. STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Jesse R. Binnall, BRONLEY & BINNALL, PLLC, Fairfax, Virginia; Marcia Hofmann, LAW OFFICE OF MARCIA HOFMANN, San Francisco, California; David Warrington, Laurin Mills, LECLAIRRYAN, Alexandria, Virginia, for Appellants. Mythili Raman, Acting Assistant Attorney General, Criminal Division, Nathan Judish, Josh Goldfoot, Benjamin Fitzpatrick, Brandon Van Grack, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente, Acting United States Attorney, Michael Ben'Ary, James L. Trump, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Alexander A. Abdo, Brian M. Hauss, Catherine Crump, Nathan F. Wessler, Wizner, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, York; Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION Ben New OF VIRGINIA FOUNDATION, INC., Richmond, Virginia, for Amici American Civil Liberties Union and ACLU of Virginia. Kurt Opsahl, Jennifer Lynch, Hanni Fakhoury, ELECTRONIC FRONTIER Appeal: 13-4625 Doc: 66 Filed: 04/16/2014 Pg: 3 ot 41 Case 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 Page 3 of 41 PageID# 1005 FOUNDATION, San Francisco, California, Frontier Foundation. Richard M. Subbaratnan, ROBINS, Minneapolis, Minnesota, KAPLAN, MILLER for Amicus Electronic Martinez, Mahesha P. & CIRESI, for Amicus Empeopled, LLC. L.L.P., Appeal: 13-4625 Doc; 66 Filed; 04/16/2014 Pg: 402/24/16 ot 41 Case 1:13-sw-00522-CMH Document 36-33 Filed Page 4 of 41 PageID# 1006 AGEE, Circuit Judge: Lavabit LLC email service. is a limited liability company that provided Ladar Levison is the company's sole and managing member.^ In 2013, the United information about a further that goal, target^ the 18 sought 18 U.S.C. U.S.C. §§ 2701-12, Lavabit failed district court sanctions. For held them to in court §§ 3123-27, information related Levison obtain comply orders To under and the Stored requiring Lavabit to the with contempt certain investigation. obtained turn over particular and to in a criminal Government both the Pen/Trap Statute, Communications Act, States target. those and When orders, imposed to the monetary Lavabit and Levison now appeal the sanctions. the reasons below, we affirm the judgment of the d i s t r i c t court. ^ The record does not reflect the state organization or registration to do business. of Lavabit's Neither does the record contain documents that verify the ownership of Lavabit's membership interests or the identity of its managing member. The parties and the district court assumed below that Lavabit and Levison were " [o]ne and the same." (J.A. 115.) As no party has indicated otherwise, all interests in Lavabit and is matters ^ on L a v a b i t ' s Because of we will also assume that Levison fully authorized to act owns in all behalf. the investigation, portions identity, are sealed. nature of the of the record, underlying including the criminal target's Appeal: 13-4625 Doc: 66 04/16/2014 Pg:5ot41 Case 1:13-sw-00522-CMH Filed: Document 36-33 Filed 02/24/16 Page 5 of 41 PageID# 1007 This case used while the process concerns providing its through "plaintext," is the encryption email into of changing that Encryption readable jumble of letters and numbers. process service. which converted processes data, Lavabit describes often "ciphertext," an called unreadable Decryption describes the reverse ciphertext back into plaintext. Both processes employ mathematical algorithms involving "keys," which facilitate the change of plaintext into ciphertext and back its paid again. Lavabit employed subscribers: storage two stages of encryption encryption and for transport encryption. Storage encryption protects emails and other data that rests on Lavabit's servers. Theoretically, no person other than email user could access the data once i t was so encrypted. using storage encryption, in the email industry, the By Lavabit held a unique market position as many providers do not encrypt stored data. Although this case encryption, encryption Lavabit's use of storage encryption primarily concerns Lavabit's transport encryption. This protects data client and the server, as it moves in was second more stage common transit novel, form between of of the creating a protected transmission channel Appeal: 13-4625 Doc: 66 Filed: 04/16/2014 Pg: 602/24/16 of 41 Case 1:13-sw-00522-CMH Document 36-33 Filed Page 6 of 41 PageID# 1008 ^OACTEjy for internet communications. just email sensitive contents, but information encryption, internet their destination, Transport encryption protects not also as it moves. communications clients and turn prevents passwords, Without move exposed and other this type of en route to allowing outsiders to "listen in." encryption also authenticates email usernames, servers -- are unauthorized that who is, it helps ensure that they say parties from Transport they are, which exploiting the in data channel. Like many online companies, Lavabit used an industry- standard protocol called SSL (short for "Secure Sockets Layer") to transmitted data. encrypt and decrypt its public-key or asymmetric encryption, SSL relies on in which two separate but related keys are used to encrypt and decrypt the protected data. One key is made public, Lavabit's process, while the other remains private. email users would have public keys, but Lavabit would retain keys. This technology basic idea is akin to a send a relies key} its to Lavabit's protected, on complex algorithms, self-locking padlock: secured box to Bob, (the public access open private but the if Alice wants to she can lock the box with a and Bob will In it with his padlock own key (the Appeal; 13-4625 Doc: 66 Filed; 04/16/2014 Pg: 7 of 41 Case 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 Pageredacted 7 of 41 PageID# 1009 private key) . Anyone can lock the padlock, but only the key- holder can unlock it.^ The security third party comes third party to possess holding communications some advantage past technologies key in hand, launch a SSL a private third key disappears key. could a For example, a the encrypted transmitted. also (although that ability). if read they were party might communications can thwart offers the private tied to that key as circumstances, decrypt a that use the some And, key to available with the the third party could impersonate In the private server and man-in-the-middle attack. When a private key becomes anything less than private, more than one user providers, various may be compromised. Like some other email Lavabit used a single set of SSL keys for all its subscribers for technological and financial reasons. Lavabit in particular employed only five key-pairs, one for each ^ Our description oversimplifies a very complicated process that can vary depending on what cipher suites and protocols are used. In reality, a client and a server engage in an SSL "handshake" involving several different communication steps between the client and the server: initial "hellos," server authentication using an SSL certificate, potential client authentication, sending (by the client) and decryption (by the server) of a pre-master secret, generation of a master secret, generation of session keys, and formal completion of the handshake. Later communications within the same session then use the generated session keys to both encrypt and decrypt all the information transmitted during the session. possible to conduct an abbreviated handshake. It is also Appeal: 13-4625 Doc; 66 Filed: 04/16/2014 Pg: 802/24/16 of 41 Case 1:13-sw-00522-CMH Document 36-33 Filed Page 8 of 41 PageID# 1010 of the mail protocols that it supported."' one key-pair could affect all of As a result, exposing Lavabit's estimated 400,000- plus email users. With this technical background in mind, we turn to the case before us. On June 28, 2013, the order ("the Pen/Trap Order") the placement of a pen Government sought and obtained an from a magistrate judge authorizing register and trace-and-trap device on Lavabit's system. This "pen/trap" device is intended to allow the to collect to the Government basis, related email account.® U.S.C. to all specific In accordance §§ 3121-27, "capture certain the information, investigatory with the on dialing, real-time target's Lavabit Pen/Trap Statute, Pen/Trap Order permitted the non-content a routing, 18 Government addressing, and " Email protocols are the technical means by which users and servers transmit messages over a network. A given user may choose to use one of a variety of email protocols, so Lavabit was equipped to handle that choice. ® A pen register captures outgoing signaling and addressing information, while a trap/trace device captures that information for incoming messages. See 18 U.S.C. § 3127(3), (4). As to email, the same device often performs both functions and is frequently referred to as a pen/trap device. Appeal; 13-4625 Doc: 66 Filed; 04/16/2014 Pg: 902/24/16 of 41 Case 1:13-sw-00522-CMH Document 36-33 Filed Page 9 of 41 PageID# 1011 signaling information . account. (J.A. 10.) . . sent from or sent to" In other words, the the target's Pen/Trap Order authorized the Government to collect metadata® relating to the target's account, of the Lavabit target's to facilities, but did not allow the capture of the contents emails. "furnish [to The the Pen/Trap Government] Order further . all . . required information, and technical assistance necessary to accomplish the installation and use of the with minimum interference." pen/trap (J.A. device unobtrusively and 11.) On the same day that the Pen/Trap Order issued, FBI agents met with Levison, who indicated that he did not intend to comply with the order. Levison informed the agents that he could not provide the requested information because the target-user "had enabled Lavabit's encryption services," presumably referring to Lavabit's storage encryption. (J.A. 7.) But, at the same time, Levison led the Government to believe that he "had the technical capability to decrypt the Nevertheless, Levison [target's] insisted that information." he would not (J.A. exercise 6.) that ® Metadata, sometimes called envelope information, describes "the how, Next when, Generation 373, 384 (2014). and where of Communications the message." Privacy Act, It includes "IP addresses, Orin S. 162 U. Kerr, Pa. L. The Rev. to-from information on emails, login times, and locations." Id. The Pen/Trap Order described what specific metadata the Government was authorized to c o l l e c t . Appeal; Case 13-4625 Doc: 66 Filed; 04/16/2014 Pg: 02/24/16 10 of 41 Page 10 of 41 PageID# 1012 1:13-sw-00522-CMH Document 36-33 Filed REDACTED ability because system.'" "Lavabit (J.A. did not want to 'defeat [its] ovm 6.) In view of Levison's response, the Government obtained an additional order that day compelling Lavabit to comply with the Pen/Trap Order. This magistrate judge, unencrypted that facilities, or Lavabit . . pursuant Lavabit technical . Order," [that was was] (J.A. Lavabit on the to needed 9.) "provide the [Pen/Trap] provide . . to issued . "any under provide a [FBI] with Order" and information, the the control FBI Further, the June 28 that "[flailure with of the Order put the Court, including the possibility of criminal contempt of Court." (J.A. in "any penalty within Over the next eleven days, with Levison about however, not give ignored the implementing FBI's the Government Order required. any by comply" result notice again to could Levison to assistance unencrypted data." and 28 instructed Lavabit to data reiterated "June the power of the Government attempted to talk the Pen/Trap Order. repeated requests the unencrypted data As each day passed, Levison, to confer and did that the June 28 the Government lost forever the ability to collect the target-related data for that day. Appeal: 13-4625 Doc: 66 Filed: 04/16/2014 Pg: 11 of 41 Page 11 of 41 PageID# 1013 Case 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 REDACTED Because Lavabit refused to comply with the the Government obtained an order to show cause court on July 9. the d i s t r i c t to appear and "show cause why Lavabit LLC failed to comply with the orders entered June 28, in this matter and why and from The show cause order directed both Lavabit and Levison, individually, ha[d] prior orders, Lavabit LLC [the] in Court should not hold Mr. contempt for resist[a]nee to these lawful orders." show cause order spurred a counsel, and install and how information. would encrypted the from (J.A. 21.) Entry of the the Government on the keys information. the could view Government necessary Although to and nor his July preserve his 10. counsel decrypt the Government indicated that asked whether Levison the target's again stressed that it was permitted to collect only non-content data, Levison and what information the device could Government In addition, provide disobedience the parties discussed how the Government could the pen/trap device, capture, Levison conference call between Levison, representatives During that call, its 2013 [] whether Lavabit neither would allow the Government to install and use the pen/trap device.^ ^ Levison contacted the Government the day after the July 10 call to say that he would not appear at the show cause hearing unless the Government reimbursed his travel expenses. In response, the Government issued a grand jury subpoena to Levison, which permitted it to cover his expenses. That subpoena, which was later withdrawn, also required Levison to produce Lavabit's encryption keys. Filed: 04/16/2014 Pg:12ot41 Appeal: 13-4625 Doc: 66 Case 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 Page 12 of 41 PageID# 1014 On July 13, 2013, four days after the show issued, Levison contacted the Government with his as how to particular, he would comply with the cause order own proposal court's orders. In Levison suggested that Lavabit would itself collect the Government's requested data: I now believe i t would be possible to capture the required data ourselves and provide i t to the FBI. Specifically the information we'd collect is the login and subsequent logout date and time, the IP address used to connect to the subject email account and [several] non-content headers . . . from any future emails sent or received using the subject account. . . . Note that additional header fields could be captured if provided in advance of my implementation effort. (J.A. that 83.) the Levison conditioned his Government importantly, pay him proposal $2,000 for with a his requirement services. Levison also intended to provide the data only "at the conclusion of the 60[-]day period required by the Order . . allow[ed]." More . [or] (J.A. intermittently [, ] 83.) ... as [Pen/Trap] [his] schedule If the Government wanted daily updates, Levison demanded an additional $1,500.® The Government rejected Levison's proposal, it needed Moreover, "real-time the transmission Government ® Although the would of have explaining that results." no means (J.A. to verify 83.) the Pen/Trap Order authorized compensation for "reasonable expenses" to Lavabit (J.A. 11) , neither Lavabit nor Levison ever requested compensation from the district court. Levison also did not attempt to show the Government that his proposed fees were requests for "reasonable expenses" that could be reimbursed. Appeal: Case 13-4625 Doc; 66 Fifed: 04/16/2014 Pg: 02/24/16 13 ot 41 Page 13 of 41 PageID# 1015 1:13-sw-00522-CMH Document 36-33 Filed REDACTED accuracy of the information that Lavabit proposed to provide a concerning limit given Lavabit's apparent hostility toward the Government. Levison responded by insisting that Order did not require real-time access, but the did not Pen/Trap otherwise attempt to comply with the Pen/Trap Order or the June 28 Order. On July 16, 2013, three days after the Government received Levison's proposal and the same day as the show cause hearing, the Government court under U.S.C. was obtained the Stored §§ 2701-12. to turn a over warrant Communications The seizure " [a]11 warrant information ("SCA"). addition, the warrant See 18 provided that Lavabit necessary to decrypt including encryption keys and SSL keys." In [the district account 27.) from the sent . or Act from communications . to seizure target's] covered Lavabit "[a]11 email (J.A. information necessary to decrypt data stored in or otherwise associated with [the target's] Lavabit account." {J.A. 27.) Appeal: Case 13-4625 Doc: 66 Filed: 04/16/2014 Pg: 14 of 41 Page 14 of 41 PageID# 1016 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 REDACTED On July 16, Levison appeared before the district court pro se,® on behalf of and Lavabit, When asked whether he hearing. Pen/Trap Order, the himself planned the to show cause comply with the Levison responded that he had "always agreed to installation Nonetheless, for of the Levison pen register objected to device." turning over {J.A. his 42.) private SSL encryption keys "because that would compromise all of the secure communications in and out of administrative traffic." [his] (J.A. network, 42.) He "[t]here was never an explicit demand [he] turn over the keys." The whether district the Pen/Trap encryption keys. Order's court the maintained that [from the Government] that and Order the parties required keys, assistance" but {J.A. 43.) Pen/Trap Order ® The initially Lavabit it provision declined to [he had] to discussed produce its reached record does may reach or the may issue not during issued a search warrant The Government agreed that it had sought the seizure warrant to "avoid litigating the own (J.A. 45.) the show cause hearing "because for that." also [his] The district court observed that the Pen/Trap "technical encompass including the [the] issue" of whether encryption keys not reflect why Lavabit prior counsel was no longer representing them. (J.A. 43) , but and Levison's Filed: 04/16/2014 Pg: 15 ot 41 Page 15 of 41 PageID# 1017 Appeal: 13-4625 Doc; 66 Case 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 REDACTED contended that the Pen/Trap Order and the "required the encryption keys to be produced" After Levison assured the district June 28 Order he would (J.A. 45). court that permit the Government to install a pen/trap device on Lavabit's system, the district court did not inquire further into whether Levison would turn over his encryption keys. concluded that it need not yet The district court resolve the matter because Levison had not been served with the seizure warrant and had not been {as called before the grand jury then-outstanding grand jury subpoena). scheduled another hearing for July was anticipated by the The district court then 26 to confirm that Lavabit had fully complied. After Government the to show cause install a hearing, pen/trap Lavabit device. did But, permit the without the encryption keys, much of the information transmitted to and from Lavabit's servers remained encrypted, useless. The pen/trap device was what within data the encrypted indecipherable, and therefore unable to identify data stream was target-related and properly collectable. Shortly before the scheduled hearing on compliance, and Levison, now again the seizure warrant. represented by In relevant part, counsel, moved Lavabit to quash their motion argued that Appeal: Case 13-4625 Doc: 66 Filed: 04/16/2014 Pg: 02/24/16 16 ot 41 Page 16 of 41 PageID# 1018 1:13-sw-00522-CMH Document 36-33 Filed REDACTED the warrant barred by (1) amounted the Fourth and (3) information; to an impermissible Amendment; imposed an (2) general sought undue burden warrant immaterial on Lavabit's business. In merely response, the "re-state[d] Government contended and clarif[ied] that the Lavabit's obligations under the Pen-Trap Act to provide that same information." The Government including Lavabit the to noted that Pen/Trap produce the four Order different and warrant the encryption June keys. legal 28 (J.A. 86.) obligations, Order, Lavabit's required motion to quash, however, did not mention either the Pen/Trap Order or the June 28 Order. On August 1, over a month after the Pen/Trap Order first issued, the district court held its second hearing.^" remarked that "[t]he information [didn't] government's 108.) difficulty reason, entitled to the district quash the Government's "very narrow, 108.) found The court the ease in obtaining the have anything to do with whether or not the lawfully For that or The court also it that information." court denied the motion specific" reasonable {J.A. that warrant. the to {J.A. Government Nothing in the record indicates why the hearing, originally set for July 26, 2013, was delayed to August 1. Appeal: Case 13-4625 Doc: 66 Fifed: 04/16/2014 Pg; 02/24/16 17 of 41 Page 17 of 41 PageID# 1019 1:13-sw-00522-CMH Document 36-33 Filed redacted would not collect all users' data, even if the encryption keys would practically enable the Government to access all that data. The district court then entered an order (the "August 1 Order") directing Lavabit to turn over its encryption keys. The order further instructed Lavabit to provide the Government "any other 'information, facilities, and technical assistance necessary to accomplish the installation and use of the pen/trap device' as required by the July 16, 2013 seizure warrant and the [Pen/Trap Order]." (J.A. 118-19.) The August 1 Order directed Lavabit and Levison to turn over the encryption keys by 5:00 pm on August 2, 2013. Despite Lavabit the dallied unequivocal and August 2 deadline, did keys. type, comply. for instance, an 11-page printout 4-point not language containing which he of Just the August before 1 the Order, 5:00 pm Levison provided the FBI with largely represented to illegible characters be Lavabit's in encryption The Government instructed Lavabit to provide the keys in an industry-standard electronic format by the morning of August 5. Lavabit did not respond. On August 5, nearly six weeks after the Government first obtained the Pen/Trap Order, the Government moved for sanctions against for Levison and Lavabit their continuing "failure to Appeal; Case 13-4625 Doc: 66 Filed: 04/16/2014 Pg; 02/24/16 18 ot 41 Page 18 of 41 PageID# 1020 1:13-sw-00522-CMH Document 36-33 Filed comply with The [the] Government provided the Court's order entered August 1." sought penalties encryption keys of to $5,000 the a {J.A. day until Government. The 120.) Lavabit district court granted the motion for sanctions that day. Two days Government. later, By that Levison time, six provided the keys weeks data regarding of to the the target had been lost.^^ Lavabit and Levison jurisdiction under Myers, 593 F.3d 28 338, timely U.S.C. 344 § appealed, 1291. n.9 (4th See Cir. and United 2010) we have States ("[A] v. civil- contempt order may be immediately appealed by a non[-] party [to the underlying action]."); Md. , 913 F.2d 113, 133 see also Buffington v. (4th Cir. 1990) Bait. (explaining that Cnty., civil contempt includes "a fine that would be payable to the court . . when the [contemnor] can avoid paying the fine simply . by performing the affirmative act required by the court's order"). We further note that the appeal presents a live controversy even After Levison provided the keys to the Government, he also shut Lavabit down entirely. In a public statement, Levison did not reveal the specific reasons behind his decision to close Lavabit. He did post, however, a statement on the Lavabit website explaining that he would not "become complicit in crimes against the American people." (last visited Mar 3, 2014). Lavabit, http://www.lavabit.com Appeal: Case 13-4625 Doc: 66 Filed: 04/16/2014 Pg: 02/24/16 19 of 41 Page 19 of 41 PageID# 1021 1:13-sw-00522-CMH Document 36-33 Filed though Lavabit has now complied with the underlying orders, as Lavabit on their and conduct orders. 195 Levison See face in refusing In (4th Cir. still re Grand to potential assessments comply with Jury Subpoena the based district (T-112) , 597 court's F.3d 189, 2010). As a party appealing from a civil contempt order, Lavabit^^ may ask us challenge "earlier Myers, to "the order appellate 593 ultimate consider Grand F.3d at decision Jury alleged review 344. as abuse of discretion, re "whether V. 723 Peoples, was to the and may violated" United contempt we was unless States v. review the proper for the underlying legal questions de novo. F.3d 581, F.3d criminal contempt). proper" been available." whether Subpoena, 698 have was In the ordinary case, 597 findings for clear error. Sebelius, to contempt F.3d at 195, and any In factual Oaks of Mid City Resident Council v. 584 185, {5th Cir. 2013); 189 Cir. (4th Lavabit failed, cf. 2012) however, United States (same as to to raise most of For simplicity's sake, we refer only to "Lavabit" for the remainder of the opinion. That term, however, includes Lavabit and Levison unless the context reflects otherwise. both Appeal: Case 13-4625 Doc: 66 Filed: 04/16/2014 Pg: 02/24/16 20 ot 41 Page 20 of 41 PageID# 1022 1:13-sw-00522-CMH Document 36-33 Filed its present arguments before the district court; that failure significantly alters the standard of review. In the district court, Lavabit failed to challenge the statutory authority for the Pen/Trap Order, or the order itself, in any way. Yet on appeal, Lavabit suggests that the district court's demand for the encryption keys required more assistance from it than the Pen/Trap Statute mentioned or alluded to the authority district fact, with court's the the possible directed at the district court's requires. Pen/Trap Statute below, to act exception of seizure Lavabit warrant, authority to under much less statute. In an undue burden argument Lavabit act that never under never challenged either the the Pen/Trap Statute or the SCA. "The matter of what questions may be taken up and resolved for the first discretion facts 121 of of the (1976). In on of cases." this ... we time on appeal." 242 is one appeals, Singleton circuit, Our settled rule circumstances, 560 F.3d 235, appeal courts individual sparingly. first time we is do not to v. consider 2009); be primarily to the exercised on the Wulff, exercise simple: Robinson v. (4th Cir. left 428 that U.S. 106, discretion "[a]bsent exceptional issues raised Equifax Info. see also Agra, for Servs., the LLC, Gill & Duffus, Appeal: Case 13-4625 Doc; 66 Filed: 04/16/2014 Pg: 02/24/16 21 ot 41 Page 21 of 41 PageID# 1023 1:13-sw-00522-CMH Document 36-33 Filed Inc. V. not Benson, accept 920 on F.2d appeal 1173, 1176 theories that (4th Cir. were 1990) not ("We raised will in the district court except under unusual circumstances."). When a party in a civil case fails to raise an argument in the lower court and instead raises it for the first time us, we may reverse only if the newly raised argument establishes "fundamental error" or a denial of fundamental justice. V. Hall, error" 770 F.2d 1267, 1271 Cir. 1985). Stewart "Fundamental is "more limited" than the "plain error" standard that we apply in criminal cases. A1 (4th before Fine, Ltd., Id.; accord Shcherbakovskiy v. Da Capo 490 P.3d 130, 142 (2d Cir. 2007) ("To meet this [fundamental error] standard, a party must demonstrate even more than is necessary to meet the plain error standard in a criminal trial."). So, when a plain-error standard, party in a F.3d 619, plain-error 631 case fails error. (4th standard as Cir. a See, e.g., 1997) "minimum" In re Celotex Corp., (describing standard before undertaking discretionary review of a a to meet the we can say with confidence that he has not established fundamental 124 civil the that criminal must be waived argument met in civil case) . Two things might explain the higher standard that applies in civil 52(b) cases. First, "Federal Rule of Criminal Procedure affords federal appellate courts the discretion to correct certain forfeited civil context (Continued) errors in the criminal context," (excepting jury instructions), but in the "such discretion is Appeal: Case 13-4625 Doc: 66 Filed: 04/16/2014 Pg: 02/24/16 22 ot 41 Page 22 of 41 PageID# 1024 1:13-sw-00522-CMH Document 36-33 Filed REDACTED Thus, we may use the criminal, articulated by United States v. plain-error Olano, 507 U.S. -- as something of an intermediate step in a e.g., Brickwood F.3d 385, case). 396 Contractors, (4th Cir. Under that 2004) familiar party fails to establish: is plain; court (3) . . needed should be." Datanet standard, "(l) or 730 (1993) civil case. See, Eng'g, we cannot for Inc., reverse there is an error; the error public 124 — 369 (applying Olano standard in civil that Celotex, circumscribed, 2011) . integrity proceedings." showing v. 705, (2) the error affects substantial rights; determines fairness, Inc. standard reputation F.3d at "[p]lain seriously 630-31. error and meeting all four prongs United States v. Byers, and (4) the affects the judicial Even the is 213 lesser strictly is difficult, 649 F.3d 197, the the error of review if as it (4th Cir. (quotation marks and alteration omitted). We employ these rules not to trap unwary litigants, advance several important and Wicomico Cnty., Md., judicially created." 1997) . As a 390 F.3d 328, Celotex, judicial "obvious" 335 purposes. (4th Cir. 124 F.3d 619, construction, it Wheatley v. 2004). 630 n.6 should but to be Among (4th Cir. narrowly construed. Cf. In re ESA Envtl. Specialists, Inc., 70 F.3d 388, 394 n.5 (4th Cir. 2013) (stating that a "judicially created exception" to a rule should be "narrowly construed"). Second, plain-error review arose in the criminal context to protect the defendant's "substantial liberty interests," but "[s]uch interests normally are not at stake in civil litigation." Deppe V. Tripp, 863 F.2d 1356, 1364 (7th Cir. 1988). Appeal: Case 13-4625 Doc: 66 Filed: 04/16/2014 Pg: 02/24/16 23 ot 41 Page 23 of 41 PageID# 1025 1:13-sw-00522-CMH Document 36-33 Filed other things, forfeiture and waiver rules offer "respect for the [integrity of the] other party, lower court, and [avoid] [acknowledge] litigation and conservation of unfair surprise to the the need for finality judicial resources." in Holly Hill Farm, 447 F.3d at 267. Our sister circuits have suggested other reasons beyond waiver develop the Liab. necessary Litiq., parties these: from 706 evidence F.3d getting rules 217, two ensure below. 226 (3d bites at In re Cir. the that Diet apple (7th Cir. 2012); 667 F.3d 1270, see also HTC Corp. 1282 (Fed. Cir. 2012) v. and by Co., parties Drugs 2013), distinct arguments," Fleishman v. Cont'l Cas. 608 the Prod. "prevent raising two 698 F.3d 598, iPCom GmbH & Co., (collecting cases). KG, The Supreme Court has likewise warned us not to lightly dismiss the many interests underlying preservation requirements. Wood V. the Milyard, trial court's consideration Shipping 132 S. Co. 1826, processes appellate v. Ct. Baker, and courts 554 1834 time should U.S. 471, (2012) See, e.g., ("Due regard for investment is not overlook."),- 487 n.6 (2008) also a Exxon ("[T]he complexity of a case does not eliminate the value of waiver and forfeiture rules, which ensure an issue is out of the case, that parties can determine when and that litigation remains, to the extent possible, an orderly progression."). Forfeiture and waiver principles apply with equal force to contempt proceedings. See, e.g.. In re Gates, 600 F.3d 333, 337 Appeal: Case 13-4625 Doc: 66 Filed: 04/16/2014 Pg: 02/24/16 24 of 41 Page 24 of 41 PageID# 1026 1:13-sw-00522-CMH Document 36-33 Filed redacted (4th Cir. 2010) (applying plain-error standard to claim of error in criminal contempt proceedings); V. Neal, 101 F.3d 993, "[t]he axiom consider that issues 996 an (4th Cir. 1996) appellate raised for the first will time F.2d After 98, all, 100 (1st Cir. "[d]enying the 1976) court ordinarily on appeal (internal of If anything, not added significance in the context of contempt." 542 United States (same). court unpreserved which takes on In re Bianchi, citation [a party] omitted). stands in contempt the opportunity to consider the objection or remedy is in itself a contempt of obstruction of its processes." [that Id. court's] authority and an (quotation marks omitted). Lavabit argues that it preserved an appellate challenge to the Pen/Trap Order when Levison objected to turning encryption keys at the initial show cause hearing. over the We disagree. In making his statement against turning over the encryption keys to remark: the Government, Levison offered a one-sentence "I have only ever objected to turning over the SSL keys because that would compromise all of in only and traffic." out of (J.A. my network, 42.) This the secure communications including statement my -- own administrative which we recite here verbatim -- constituted the sum total of the only objection that Lavabit ever raised to the turnover of the keys under the Appeal; 13-4625 Doc: 66 Filed: 04/16/2014 Pg: 02/24/16 25 of 41 Page 25 of 41 PageID# 1027 Case 1:13-sw-00522-CMH Document 36-33 Filed Pen/Trap Order. We cannot refashion this vague statement of personal preference into anything remotely close to the argument that Lavabit challenge to now the raises district on appeal: court's a statutory-text-based fundamental authority under the Pen/Trap Statute. Levison's statement to the district court simply personal reflected Pen/Trap his Order, not his angst over present complying appellate with the argument that questions whether the district court possessed the authority to act at a l l . Arguments raised in a line with appeal, those trial court must be specific and in raised on appeal. an objection tor argument] grounds on which it is based." V. Cohen, that 996 F.2d 702, 707 "To preserve issue for must be timely and state the Kollsman, a Div. of Sequa Corp. (4th Cir. 1993). It follows then "an objection on one ground does not preserve objections based on different grounds." United States v. F.3d 337, 342 n.2 (4th Cir. 2009)." go an far enough by raising a Massenburg, Similarly, a party does not non-specific objection or We have emphasized this point many times before. e.g., United States v. Zayyad, 741 F.3d 452, 459 (4th Cir. ("To preserve an argument on appeal, 564 the claim. See, 2014) [party] must object on the same basis below as he contends is error on appeal."); Laber V. Harvey, 438 F.3d 404, 429 n.24 (4th Cir. 2006) ("These are different arguments entirely, and making the one does not preserve the other."); United States v. Banisadr Bldg. Venture, 65 F.3d 374, 379 (4th Cir. 1995) raised at trial cannot be raised on appeal."). ("[A] Joint theory not Appeal: 13-4625 Doc: 66 Filed: 04/16/2014 Pg: 26 ot 41 Page 26 of 41 PageID# 1028 Case 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 "[I]f a party wishes to preserve an argument for appeal, the party must press and not merely intimate the argument during the proceedings L.P. V. before the Prospect district Energy court." Corp., 733 Dallas F.3d 2013); see also United States v. Bennett, 148, Gas Partners, 157 {5th 698 F.3d 194, Cir. 199 (4th Cir. 2012) {finding defendant waived argument where his argument below "too was general to alert the district court to the specific [objection]"). In arguing that it can still pursue the issue despite its failure to raise any specific argument challenging the Pen/Trap Order City below, of that, make Lavabit Escondido, gives 503 far U.S. too 519, broad 534 a reading (1992). Yee " [o]nee a federal claim is properly presented, any argument in support of that claim; We, plainly too, Co., Volvo by 604 Yet neither Lavabit issues for this case and Yee before premised the the the Constr. 386 F.3d 581, these v. a party can are 503 U.S. not at have recognized our need to "consider any theory encompassed litigation." Yee explained parties limited to the precise arguments they made below." 534. to submissions Equip. (4th Cir. "plainly" district on physical court the underlying v. CLM Ecruip. "properly" identified Am., Inc. 2004). nor court, illustrates why. district N. in a occupation. and a In Yee, Fifth 503 comparison between the parties Amendment U.S. at takings 534-35. raised claim Before Filed; 04/16/2014 Pg; 27 of 41 Page 27 of 41 PageID# 1029 Appeal: 13-4625 Doc: 66 Case 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 redacted the Supreme Court, by regulation. because same the however, Id. they argued that the taking occurred The difference in forrn there was immaterial appealing party asked fundamental question: constituted a taking. the the In other words, difference courts whether in Yee raised two variations of contrast, both in the the to evaluate challenged the acts the appellant/petitioner same basic case at bar argument. is marked In and material: Lavabit never challenged the statutory validity of the Pen/Trap Order below or the court's authority to act. contrary, damage Lavabit's that only point compliance could below cause alluded to its to the To the potential chosen business model. Neither the district court nor the Government therefore had any signal from Lavabit that it contested the district court's authority under the Pen/Trap Statute to enter the Pen/Trap Order or the June 28th Order. In fact, by conceding at the August 1 hearing "that the [G] ovemment [was] information," likely the it exactly the opposite. led (J.A. 108.) entitled to the district court Accordingly, [requested] to believe Lavabit failed to preserve any issue for appeal related to the Pen/Trap Statute or the district court's authority to act under it. See Nelson We might characterize this argument as some type of undue burden challenge. But, on appeal, Lavabit does not raise any undue burden argument as to the Pen/Trap Order. limits its burden arguments to the seizure warrant. Instead, it Filed: 04/16/2014 Pg:28ot41 Appeal: Case 13-4625 Doc: 66 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 Page 28 of 41 PageID# 1030 redacted V. Adams rule USA, that Inc., issues 529 must U.S. be 460, raised 469 in (2000) lower {"[T]he courts in general order to preserved as potential grounds of decision in higher courts . requires that the lower court be fairly put on notice as be . . to the substance of the issue."). Lavabit cognizable court, that, objection to even the if it Pen/Trap failed Order in its present challenges. "invited" "induced" exception forfeiture and waiver principles. Lavabit any for other such an exception, to that permits us to United States, 724 F.3d 915, to cast aside 918 traditional has not identified than its subjective But that is not the well-understood interests underlying our preservation requirements. V. a district induced i t the belief that it is now in an "unfair" position. an argument raise We know of no case recognizing waiver basis or to the then the Government and the district court forfeit an contends (7th Cir. Cf. Hawkins 2013) ("Finality is an institutional value and it is tempting to subordinate such a value dangers, to the equities especially if the touchstone."). of the individual so vague a term as case. But 'fairness' there are is to be Appeal: 13-4625 Doc: 66 Filed: 04/16/2014 Pg: 29 of 41 Page 29 of 41 PageID# 1031 Case 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 ^^DACTED In any event, as neither the we disagree with Lavabit's Government nor the district factual premise, court induced or invited Lavabit to waive anything. The Government Pen/Trap Order did was not lead somehow Lavabit to irrelevant. believe To be that sure, the the Government focused more on the seizure warrant than the Pen/Trap Order at certain hearing, times for example, in the proceedings. At the August 1 the Government concentrated on the seizure warrant and the later-withdrawn grand jury subpoena because the motion under consideration -- Lavabit's motion to quash -addressed those two objects. The Government, stopped contending that the Pen/Trap Order, also required Lavabit example, to turn over the however, only never in and of itself, encryption keys. For the Government specifically invoked the Pen/Trap Order in its written response to Lavabit's motion to quash by noting that "four provide the June separate legal obligations" its encryption keys, 28 Order. (J.A. required including the 86.) If Lavabit Lavabit to Pen/Trap Order and truly believed the Pen/Trap Order to be an invalid request for the encryption keys, then the Government's continuing reliance on that order should have spurred Lavabit to challenge it. The that the district Pen/Trap court's Order actions implicated also put Lavabit's The June 28 Order referred to encryption, Lavabit on encryption notice keys. and the August 1 order Filed: 04/16/2014 Pg: 02/24/16 30 of 41 Page 30 of 41 PageID# 1032 Appeal; Case 13-4625 Doc: 66 1:13-sw-00522-CMH Document 36-33 Filed compelling Lavabit independent warrant and {emphasis the the turn of authority: June added).) unequivocal that sources to 28, The citation over 2013 the keys relied "the July 16, [Pen/Trap August to its 1 Pen/Trap 2013 Order]." Order, with Order, upon its seizure (J.A. 119 plain and informed Lavabit the Pen/Trap Order needed to be addressed because cited authority for the turnover of the two encryption it was keys. Even if the district court had earlier equivocated about whether the Pen/Trap Order reached Lavabit's encryption keys, doubts were dispelled once the August 1 Order issued.^® the terms of a opinion or Volkswagen, judgment conflict with either a observation, Inc. v. (4th Cir. 1984); judgments, not chance during, First by opinions, or absolute minimum, or after judgment Nat'l see also id. observations before the Bank must of those "When written or oral govern." S.C., 741 Murdaugh F.2d 41, 44 ("Courts must speak by orders and whether written expressed intentions trial, during or if Lavabit believed that keys was invalid under the Pen/Trap Order, or oral, made by argument."). the or by courts At turnover of an the then it should have Similarly, if Lavabit believed that the district court mistakenly relied upon the Pen/Trap Order in its August 1 Order, then it should have moved the district court to order. See Segars. v. Atl. Coast Line R.R. Co., 770 (4th Cir. 1961) (finding that party waived written order did not conform with trial revise its 286 F.2d 767, argument that court's findings, where party did not move to revise order below). actual Appeal: 13-4625 Doc: 66 Filed: 04/16/2014 Pg: 31 ot 41 Page 31 of 41 PageID# 1033 Case 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 REDACTED acted once the district court's August 1 order issued. It did not. Lavabit tenders other reasons why we should exercise our discretion to hear its Pen/Trap Statute argument, but we find no merit in those arguments. We doubt that Lavabit's listed factors could ever justify de novo review of an argument raised for the first time on appeal in a civil case in this circuit. Many years ago, requirements before we of [the plain-error may exercise raised below in a {emphasis this circuit held that, added). It standard] our discretion to civil case." makes no In re (Reply Br. some the of 6) , below, case to be one of "public concern" legal" one. Statute's At or "pure would not alone an error not 124 then supposedly F.3d at that the But 631 Lavabit's "pure question that Lavabit believes we do not agree that the issue is a very least, third-party-assistance law." Celotex, satisfied even if this (Reply Br. 6). interpreting provision consider technological questions of with be the or that Lavabit was unrepresented during proceedings At the outset, a must correct difference Pen/Trap Statute argument presents of law" "at a minimum, the justify our review. fact would the "purely Pen/Trap require us to that have little to do question were legal, that Though some circuits will Appeal: 13-4625 Doc: 65 Filed: 04/16/2014 Pg: 32 of 41 Page 32 of 41 PageID# 1034 Case 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 sometimes presents put aside this sort the of plain-error question, see, framework e.g., Villas City of Farmers Branch, Cir. our precedents do not embrace that approach. contrary, the F.3d 524, at Partners v. 2013), 726 when we have taken a more structured view, forfeiture rule "is a salutary rule Comm' r, 114 Ernest Grp., (rejecting legal" F.2d a 760, Inc., 634 party's issue could 766 (4th F.3d Cir. 1123, contention be 1940); that considered a {5th To the the ground Legg's Estate v. (10th forfeited outside Parkside recognizing that accord 1128-30 case 582 n.26 even where urged for reversal is a pure question of law." a the Richison v. Cir. but 2011) "purely plain-error framework). Nor does it matter that Lavabit and Levison were unrepresented by counsel during parts of the proceedings below. As a limited liability company, Lavabit likely should not have been permitted to proceed pro se at all. "It has been the law for the better part of two centuries, for example, that a corporation may appear in the federal courts only through licensed counsel. As the courts have recognized, the rationale for that rule applies equally to all artificial entities. Thus, save in a few aberrant cases, the lower courts have uniformly held that 28 U.S.C. § 1654, providing that 'parties may plead and conduct their own cases personally or by counsel, ' does not allow corporations, partnerships, or associations to appear in federal court otherwise than through a licensed attorney." Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 202 (1993) (footnote omitted); see also, e.g.. United States v. Hagearman, 545 F.3d 579, 581-82 (7th Cir. 2008) (holding that LLCs rel • Mergent Servs. (Continued) may not proceed pro se) ; United States ex v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008) Filed: 04/16/2014 Pg: 33 of 41 Page 33 of 41 PageID# 1035 Appeal; 13-4625 Doc; 66 Case 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 REDACTED "Although pro se complaints construed, the failure [and arguments] are to be liberally to first present claims to the district court generally forecloses our consideration of these matters on appeal." United States v. Ferguson, 1990); cf_^ Williams v. 2013) ("We long consideration Ozmint, have of the 716 F.3d 801, recognized pleadings that, of appellate courts should not permit preserve questions Supreme Court on has 918 F.2d 627, 630 {6th Cir. appeal."). ever despite pro . . se . (4th Cir. our expansive litigants, fleeting references to Neither "suggested 810-11 that this Court procedural nor rules the in ordinary civil litigation should be interpreted so as to excuse mistakes United by those States, Lavabit's who 508 proceed U.S. 106, on-again-off-again without 113 counsel." (1993). relationship McNeil Especially with various v. given legal counsel, no reason exists to do so here.^® Finally, Lavabit proposes that we hear its challenge to the Pen/Trap Order because Lavabit "immense public concern." perhaps "public greater (explaining partnerships, that lay views (Reply Br. interest persons the case 6.) Yet in bringing cannot as a matter there exists a litigation represent of to an corporations, or limited liability companies). Litigating this case did not evidently present any particular financial hardship, as Lavabit and Levison have never claimed a lack of funds as a reason for their sometimes-pro-se status. Filed: 04/16/2014 Pg: 02/24/16 34 of 41 Page 34 of 41 PageID# 1036 Appeal; 13-4625 Doc: 66 Case 1:13-sw-00522-CMH Document 36-33 Filed redacted end after issues 157, fair of law and 159 involve opportunity fact." (1936). matters difficulties. concern" of exhuming one — See, is a e.g., afforded v. forfeited concern" thing, "non-public consideration been United States "public For and standards. And has tricky task Tony A. Advoc. 179, problems with a 280-87 governed Weigand, (2012) Rulings: an Opportunity to Be Heard, (2002) ("[W]hat is an will be unimportant difficult For to another of a from by "public any other Raise or Lose: Appellate 17 Suffolk J. Courts public to another. they objective Trial & and other Barry A. Deprive 39 San Diego L. important when no approach); When U.S. practical (describing vagueness "public importance" Sua Sponte Appellate cases all 297 present divorced Discretion and Principled Decision-Making, App. Atkinson, would -- present arguments identifying concern" to Miller, Litigants Rev. 1253, interest to of 1306-07 one court The line will be particularly draw and will often appear nakedly political."). thing, issue is public concern, that concern is likely more reason to avoid deciding it from a less- than-fully Park Civic 2003) ("The Ass'n v. litigated Williams, issue presented, complexity posture."); 1983) if to an record. 348 F.3d however, counsel Carducci v. See, 1033, of e.g., 1039 Kingman (D.C. Cir. is of sufficient public importance and strongly Regan, against 714 F.2d deciding 171, 177 it in this (D.C. Cir. (refusing to excuse procedural waiver where case involved Filed: 04/16/2014 Pg: 35 ot 41 Page 35 of 41 PageID# 1037 Appeal: 13-4625 Doc: 66 Case 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 "important questions Accordingly, of far-reaching significance"). we decline to hear Lavabit's new arguments merely because Lavabit believes them to be important. In sum, Lavabit's assorted reasons to exercise any discretionary review authority do not convince us to review its Pen/Trap Statute arguments de novo. If Lavabit is to succeed on its Pen/Trap Statute claim, it must at least show plain error. III. The Pen/Trap Statute to obtain court orders trap/trace devices. onerous requires to law enforcement install and than the requirements transfer "content" of that fields, login information. registers and that apply to Government requests but only content. as pen/trap devices do not information As to pen/trap devices collect only metadata, and "From:" pen The requirements for these orders are less for the "content" of communications, collect use authorities associated internet the communications, such as an email's "To:" the date and time of transmissions, See 18 U.S.C. with § 3127(3), (4) and user (forbidding pen For example, in the more historically common use of a pen/trap device on a landline telephone, the only information collected would be information such as the telephone numbers of incoming and outgoing calls. Filed; 04/16/2014 Pg; 36 ot 41 Page 36 of 41 PageID# 1038 Appeal; 13-4625 Doc; 66 Case 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 REDACTED registers and trap/trace devices from collecting "the contents of any communication"). The Pen/Register Statute also includes provisions requiring third parties to provide technical assistance to the Government in connection (b). Under with the those devices. See 18 pen-register provision, for U.S.C. §§ instance, 3124(a), Lavabit must provide: all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place. Id. § 3124(a). Similarly, under the trap/trace provision, Lavabit must furnish: all additional information, facilities and technical assistance including installation and operation of the device unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place, if such installation and assistance is directed by a court order as provided in section 3123(b)(2) of this title. Id. § 3124(b) Thus, identical. information § 3124(a), (emphasis added). Sections The 3124(a) and pen-register "necessary to (b) are provision accomplish the similar, but refers only installation," not to id. while the trap/trace provision references information "including installation and operation," id. § 3124(b). Filed: 04/15/2014 Pg: 37 ot 41 Page 37 of 41 PageID# 1039 Appeal: 13-4625 Doc; 66 Case 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 redacted Lavabit provisions SSL found keys. It assistance not now argues in Sections reads those to attach the any assistance effective. that the 3124(a) third-party-assistance and provisions (b) to pen/trap device require to necessary to make the Lavabit contends that Further, do not reach only Lavabit's device it enough system, operationally needed to only enough help to make the installation unobtrusive. insists that Government the more Congress the never broad power general language could have to ask found intended for in encryption the the to offer And it grant keys the through third-party-assistance provisions. All these new arguments notwithstanding, make its most oral essential argument: it argument never anywhere contended that Lavabit failed to in its the briefs or at district court fundamentally or even plainly erred in relying on the Pen/Trap Statute bears to compel Lavabit the burden of United States (noting, v. to showing, Carthorne, produce "at a 726 in criminal context, 713 F.3d 538, context bears that the the burden 553 n.l2 party of that showing keys. minimum," F.3d 503, Yet Lavabit plain error. 510 (4th Cir. Cf. 2013) that the appealing defendant bears the burden of showing plain error); Wandes, its see also, (lOth Cir. failed plain to e.g., 2003) (noting in civil preserve error). Abernathy v. And his "[a] argument party's Filed: 04/16/2014 Pg: 38 of 41 Page 38 of 41 PageID# 1040 Appeal: Case 13-4625 Doc; 66 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 REDACTED failure to raise or discuss deemed an abandonment for Stock 2012); F.3d Car Auto of that Racing, 308 assignments (4th of Cir. error us to one in issue." 2003) v. his brief Mayfleld v. 674 Inc. F.3d 369, ("Failure to conclusion: (4th present constitutes a these two principles Lavabit's "failure see 2010) (rejecting party's plain error argument where, among other Pen/Trap justice" reason, Parker, 627 Richison, F.3d 634, 634 640 not F.3d at (7th Cir. not made an attempt -- either in his briefs or — to abandoned plainly erred, Lavabit v. reversal show that the elements for plain error been satisfied"). Lavabit the Jackson argument review ha[d] the district court." for . surely 1131; oral argument . to presented to at [its] argue first he "ha[d] for or 335 the things, road Cir. marks also the be Nat'l Ass'n argue for plain error and its application on appeal . end of to Roche Diagnostics GmbH, Taken together, inevitable is 377 in opening appellate briefs waiver of those issues."). carry issue Inc., see also IGEN Int'l, 303, an fails that much Order any less to argument that fundamentally find Lavabit erred, in to identify any potential would justify further the district in court relying upon contempt. Moreover, "denial of fundamental review. For the then, Lavabit has abandoned that argument as well. same Filed: 04/16/2014 Pg: 39 of 41 Page 39 of 41 PageID# 1041 Appeal: Case 13-4625 Doc: 66 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 redacted We reiterate that our review is circumscribed by arguments that Lavabit raised below and in this Court. this narrow course freestanding open because forum hypothetical questions. of Educ. , not sit 489 to F.2d for 967 (4th Cir. the court discussion We take is of not a esoteric Charlotte-Mecklenburg Bd. (4th Cir. render decisions actually raised. appellate See Swann v. 966, advisory opinions."}. 654 an the 1974) on abstract ("[The] legal Court does propositions or Rather, we adjudicate the legal arguments See Erilin Co. 2006) S.A. v. Johnson, (observing that our 440 F.3d 648, "system of justice" is one "in which the parties are obliged to present facts and legal arguments before a neutral maker") . Our conclusion, and then, as the actual order on appeal, relatively passive decision- must tie back to the contempt, and the proceedings below, as the record that constrains us. Lavabit warrant, but also we arguments. The turn its over raises need district the court's should court's encryption independent grounds: Thus, not, several keys challenges not, and orders do to not the seizure reach those compelling Lavabit relied on two, to separate the Pen/Trap Order and the seizure warrant. later finding of contempt found that Lavabit Filed; 04/16/2014 Pg: 40 ot 41 Page 40 of 41 PageID# 1042 Appeal: 13-4625 Doc: 66 Case 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 REDACTED violated both the two prior orders. support a to find district court's contempt order, that Coal Co. 831-32 V. one of {4th Cir. 1982) bases for properly affirmed). general court must judgment Floridian Ins. (declining contempt Furthermore, appropriate. to address order him "[t]o on convince Co., was is enough for us See United Mineworkers of Am., that, based against bases it where obtain multiple, us that second first is incorrect." 739 F.3d 678, some of 680 implicate constitutional concerns. basis was of district a grounds, ground Sapuppo (11th Cir. Lavabit's two from independent stated of flows reversal every Consol. 683 F.2d 827, This contempt-specific rule maxim judgment appellant those Local 1702, independent more When two independent bases for v. avoid rendering absolutely necessary." Alexandria, 608 F.3d 150, 2014). additional V. Tenn. Valley Auth., concurring)) ; Cnty., avoid Md.. see 212 deciding essential to the 288, also Bell Atl. 865 S. arguments (4th Cir. constitutional disposition of Co. Inc. 2000) case."). v. unless City of {citing Ashwander (1936) questions a rulings 2010) 347 Md. , "The . requires the federal Ry. (4th Cir. 297 U.S. F.3d 863, . constitutional Norfolk 157 the Those concerns provide even principle of constitutional avoidance . to an Allstate more reason to avoid addressing Lavabit's new arguments. courts the v. (Brandeis, Prince J., George's {" [C] ourts should unless So, we they are "will not Filed: 04/15/2014 Pg:41or41 1:13-sw-00522-CMH Document 36-33 Filed 02/24/16 Page 41 of 41 PageID# 1043 Appeal: Case 13-4625 Doc: 66 REDACTED decide a constitutional constitutional question, of the controversy." Cir. 2002). question, The if particularly another ground Strawser v. Atkins, a complicated adequately 290 F.3d 720, disposes 730 {4th long-established constitutional-avoidance rule applies squarely to this case. In view of Lavabit's waiver of its appellate arguments by failing to raise them in the district court, raise the issue of fundamental and its failure to or plain error review, there is no cognizable basis upon which to challenge the Pen/Trap Order. The district Levison in court contempt did not once err, they then, in finding admittedly violated Lavaibit that and order. The judgment of the district court is therefore AFFIRMED. Total Pages:(l ot 4) Filed: 04/16/2014 Pg: 02/24/16 1 ot 2 Appeal: 13-4625 Doc: 67-1 Case 1:13-sw-00522-CMH Document 36-34 Filed Page 1 of 4 PageID# 1044 FILED: April 16,2014 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ^Dacted No. 13-4625 (L) (l:13-sw-00522-CMH-l) (l:13-dm-00022-CMH-l) In re: UNDER SEAL UNITED STATES OF AMERICA Plaintiff - Appellee LAVABIT, LLC.; LADAR LEVISON Parties-in-Interest - Appellants AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA; EMPEOPLED, LLC.; ELECTRONIC FRONTIER FOUNDATION Amici Supporting Appellant No. 13-4626 (l:I3-dm-00022-CMH-l) (l:13-sw-00522-CMH-l) Filed: 04/16/2014 Pg; 02/24/16 2 of 2 Appeal; 13-4625 Doc; 67-1 Total Pages:(2 ot 4) Case 1:13-sw-00522-CMH Document 36-34 Filed Page 2 of 4 PageID# 1045 In re: GRAND JURY PROCEEDINGS ^Dacted UNITED STATES OF AMERICA Plaintiff - Appellee LAVABIT, LLC.; LADAR LEVISON Parties-in-Interest - Appellants AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA; EMPEOPLED, LLC.; ELECTRONIC FRONTIER FOUNDATION Amici Supporting Appellant JUDGMENT In accordance with the decision of this court, the judgment of the district court is affuTTied. This judgment shall take effect upon issuance of this court's mandate in accordance with Fed. R. App. P. 41. /s/ PATRICIA S. CONNOR. CLERK Filed; 04/16/2014 Pg; 02/24/16 1 of 2 Total Pages;(3 ot 4) Appeal; 13-4625 Doc; 67-2 Case 1:13-sw-00522-CMH Document 36-34 Filed Page 3 of 4 PageID# 1046 FILED: April 16, 2014 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4625 (L), In re: Under Seal 1:13-SW-00522-CMH-1,1:13-dm-00022-CMH-1 NOTICE OF JUDGMENT Judgment was entered on this date in accordance with Fed. R. App. P. 36. Please be advised of the following time periods: PETITION FOR WRIT OF CERTIORARI: To be timely, a petition for certiorari must be filed in the United States Supreme Court within 90 days of this court's entry ofjudgment. The time does not run from issuance of the mandate. If a petition for panel or en banc rehearing is timely filed, the time runs from denial of that petition. Review on writ of ceiliorari is not a matter of right, but ofjudicial discretion, and will be granted only for compelling reasons. (www.supremecourtus.gov') VOUCHERS FOR PAYMENT OF APPOINTED OR ASSIGNED COUNSEL: Vouchers are sent to counsel appointed or assigned by the court in a separate transmission at the time judgment is entered. CJA 30 vouchers are sent to counsel in capital cases. CJA 20 vouchers are sent to counsel in criminal, postjudgment, habeas, and § 2255 cases. Assigned counsel vouchers are sent to counsel in civil, civil rights, and agency cases. Vouchers should be completed and returned within 60 days of the later of entry ofjudgment, denial of a petition for rehearing, or the grant or denial of a petition for writ of certiorari. If counsel appointed or assigned by the court did not receive a voucher, forms and instructions are available from the court's web site, ww\v.ca4.uscourts.gov, or from the clerk's office. BILL OF COSTS: A party to whom costs are allowable, who desires taxation of costs, shall file a Bill of Costs within 14 calendar days of entry of iudament. (FRAP 39, Loc. R. 39(b)). Filed: 04/16/2014 Pg: 02/24/16 2 of 2 Total Pages:{4 of 4) Appeal; 13-4625 Doc: 67-2 Case 1:13-sw-00522-CMH Document 36-34 Filed Page 4 of 4 PageID# 1047 REDACTED PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC: A petition for rehearing must be filed within 14 calendar days after entry of judgment, except that in civil cases in which the United States or its officer or agency is a party, the petition must be filed within 45 days after entry ofjudgment. A petition for rehearing en banc must be filed within the same time limits and in the same document as the petition for rehearing and must be clearly identified in the title. The only grounds for an extension of time to file a petition for rehearing are the death or serious illness of counsel or a family member (or of a party or family member in pro se cases) or an extraordinary circumstance wholly beyond the control of counsel or a party proceeding without counsel. Each case number to which the petition applies must be listed on the petition to identify the cases to which the petition applies and to avoid companion cases proceeding to mandate during the pendency of a petition for rehearing in the lead case. A timely filed petition for rehearing or petition for rehearing en banc stays the mandate and tolls the running of time for filing a petition for writ of certiorari. A petition for rehearing must contain an introduction stating that, in counsel's judgment, one or more of the following situations exist: (1) a material factual or legal matter was overlooked; (2) a change in the law occurred after submission of the case and was overlooked; (3) the opinion conflicts with a decision of the U.S. Supreme Court, this court, or another court of appeals, and the conflict was not addressed; or (4) the case involves one or more questions of exceptional importance. A petition for rehearing, with or without a petition for rehearing en banc, may not exceed 15 pages. Copies are not required unless requested by the court. (FRAP 35 & 40, Loc. R. 40(c)). MANDATE: In original proceedings before this court, there is no mandate. Unless the court shortens or extends the time, in all other cases, the mandate issues 7 days after the expiration of the time for filing a petition for rehearing. A timely petition for rehearing, petition for rehearing en banc, or motion to stay the mandate will stay issuance of the mandate. If the petition or motion is denied, the mandate will issue 7 days later. A motion to stay the mandate will ordinarily be denied, unless the motion presents a substantial question or otherwise sets forth good or probable cause for a stay. (FRAP 41, Loc. R. 41). Filed: 05/08/2014 Pg: 1 02/24/16 of 2 Appeal: 13-4625 Doc: 68 Case 1:13-sw-00522-CMH Document 36-35 Filed Page 1 of 2 PageID# 1048 REDACTED FILED: May 8, 2014 UNITED STATES COURT OF APPEALS FOR TI-IE FOURTH CIRCUIT No. 13-4625 (L) (l:13-sw-00522-CMH-l) (l:13-dm-00022-CMH-l) In re: UNDER SEAL UNITED STATES OF AMERICA Plaintiff - Appellee LAV ABIT, LLC.; LADAR LEVISON Panies-in-Interest - Appellants AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA; EMPEOPLED, LLC.; ELECTRONIC FRONTIER FOUNDATION Amici Supporting Appellant Appeal; 13-4625 Doc; 68 Filed; 05/08/2014 Case 1:13-sw-00522-CMH Document 36-35 Pg:2ot2 Filed 02/24/16 Page 2 of 2 PageID# 1049 redacted No. 13-4626 (l:13-dm-00022-CMH-l) (l:13-sw-00522-CMH-l) In re: GRAND JURY PROCEEDINGS UNITED STATES OF AMERICA Plaintiff - Appellee LAVABIT, LLC.; LADAR LEVISON Parties-in-Interest - Appellants AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA; EMPEOPLED, LLC.; ELECTRONIC FRONTIER FOUNDATION Amici Supporting Appellant MANDATE The judgment ofthis court, entered April 16,2014, takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) ofthe Federal Rules of Appellate Procedure. /s/Patricia S. Connor. Clerk Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 1 of 26 PageID# 1050 redacted FILED IN THE UNITED STATES DISTEUCT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria •lauivision Division IN THE MATTER OF THE APPLICATION OF THE UNITED mi jgij , j p 3: 30 CLERK US DISTRICT COURT FILED UNDER SEALALEXAflDRIA, VIRGINIA STATES AUTHORIZING THE USE OF A PEN REGISTER/TRAP No. 1:13EC297 AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT IN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION ASSOCIATED WITH No. l;i3SW522 m^^^^^^^^BTHAT IS STORED AND CONTROLLED AT PREMISES CONTROLLED BY LAVABIT LLC In re Grand Jury No. 13-1 MOTION TO UNSEAL RECORDS AND VACATED NON-DISCLOSURE ORDERS AND MEMORANDUM OF LAW IN SUPPORT OF MOTION Lavabit, LLC ("Lavabit") and Mr. Ladar Levison ("Mr. Levison") (collectively "Movants") move this Court to fully unseal records and vacate non disclosure orders that are over two years old. While these records have been partially unsesiled, Mr. Levison is still prevented from disclosing the target of the subpoenas, specifically the named individual and the email address(es) searched, and the non-disclosure orders are still in effect. The account holder at issue is Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 2 of 26 PageID# 1051 redacted The Pacts Mr. Levison, a resident of Texas, formed Lavabit in 2004 as a secure and encrypted email service provider. At its peak, Lavabit provided email service to approximately 410,000 users worldwide. In the spring of 2013, the United States launched a criminal investigation into the activities of! I. As part of this investigation, the federal government (1) subpoenaed Lavabit for billing and subscriber information; related to email account with Lavabit, (2) obtained an order requiring Lavabit to install a pen-trap device to intercept all electronic communications involving iccount, and (3) issued a search warrant to Lavabit for all information necessary to access their encrypted data, Exhibit A through C. The latter involved a request for Lavabit's private encryption keys' which would allow the government to access the plain-text for all the tralBc traversing the Lavabit network, including emails and customer passwords. After exhausting its options in court, and subsequendy finding itself the subject of a contempt charge, Lavabit surrendered its private encryption key. Concurrently Mr. Levison chose to suspend the operation of Lavabit's email service. ^ Lavabit employed an industry standard to provide transport layer security ("TLS"), sometimes called a secure socket layer ("SSL"), to ensure the privacy and security of communications between Lavabit and its users. TLS makes use of two "keys", one public, and the other private, which work together to verify the identity of Lavabit's servers and setup an encrypted network connection. This encryption protects the data sent between the server and a user's email client, or web browser. Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 3 of 26 PageID# 1052 redacted the subject of the investigation, which led to the government demanding unfettered access to the private communications for all of Lavabit's customers, foreseeable future. the United States filed a criminal complaint against in the District Court for the Eastern District of Virginia, charging him -A-ctT-T-hough-initially-Filed-undeF-seal^the-United-States-unsealed-the-complain Lavabit and Mr. Levison challenged the validity and constitutionality of the search warrant and orders. This Court denied Lavabit's request to quash the search warrant and grand jury subpoena, and twice denied the movants' motion to unseal court records. Lavabit appealed the decision, to the Fourth Circuit Court of Appeals, and while the appeal was pending, this Court partially unsealed portions of the record, Exhibit D. The Court continued to redact the target's name and email addresses. Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 4 of 26 PageID# 1053 redacted Two years later, a lifetime, in today's media cycle, the search warrant, grand jury subpoena, and other pleadings and orders remain partially sealed, and Mr. Levison is still subject to the non-disclosure orders of June 10, 28 and July 16, 2013 ("the non-disclosure orders"). As such, he may never disclose mail accounts are what spawned the government's request and led to the subsequent legal proceedings. I. THE NON-DISCLOSURE ORDERS ARE INVALID BECAUSE THEY VIOLATE MR. LEVISON'S FIRST AMENDMENT RIGHT TO FREE SPEECH All three non-disclosure orders were issued by the Court pursuant to the Stored Communications Act ("SCA") at 18 U.S.C. § 2705(b). These orders constitute notice preclusion authorized by the SCA. Such an order is "a type of gag order." In re Sealing & Non-Disclosure ofPen/Trap/2703(d) Orders, 562 F. Supp. 2d 876, 879-80 (S.D. Tex. 2008). A restriction on speech survives judicial scrutiny only 'if it 'is necessary to serve a compelling state interest and is narrowly drawn to achieve that end." IOTA XI Chapter of Sigma Chi Fraternity v. George Mason Uniu., 993 F.2d 386, 394 {4th Cir. 1993) (Mumaghan, J., concurring) (quoting Simon & Schuster, Inc. v. New York Crime Victims Board, 502 U.S. 105, 118(1991)). By requesting a gag order, the government's purpose is to preclude Mr. Levison from speaking about an entire topic, namely, the object of the search and seizure warrants to Lavabit and the underlying criminal investigation of See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (opining Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 5 of 26 PageID# 1054 REDACTED that "the government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral..."). In fact, the non-disclosure orders prohibit Mr. Levison from disclosing the link between the federal government's, now public, investigation of^^^^m and his email accounts with Lavabit. Such restrictions qualify as content-based regulation of speech.^ See Bartnicki v. Vopper, 532 U.S. 514, 526 (2001). The Supreme Court has held that content-based regulation of speech is "presumptively invalid." R.A.V. v. City of St. Paul, 505 U.S. 377, 38182 (1992) (noting that the "First Amendment generally prevents government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed."). Within First Amendment jurisprudence, government action in the form of an administrative or judicial order forbidding certain speech has been described as a "prior restraint." Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting M. Nimmer, Nimmeron Freedom of Speech § 4.03, p. 4-14 (1984)) ("The term 'prior restraint' is used 'to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur."). "Temporary restraining 2 Although the government action at issue in this case does not involve a law in the ordinary sense, the Supreme Court has held that a government investigation is nonetheless subject to First Amendment scrutiny. Watkins v. United States, 354 U.S. 178, 197 (1957) ("While it is true that there is no statute to be reviewed, and that an investigation is not a law, nevertheless an investigation is part of law-making. It is justified solely as an adjunct to the legislative process. The First Amendment may be invoked against infringement of the protected freedoms by law or by lawmaking"). Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 6 of 26 PageID# 1055 redacted orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints." Nimmer, at 4-16. See, e.g.. New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam) (striking down injunctions barring the New York Times and Washington Post from publishing excerpts from the "Pentagon Papers"). The gag order issued in this case is also a speech restrictive injunction and, thus, an example of prior restraint that is "constitutionally disfavored in this nation nearly to the point of extinction." In re Sealing & Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876, 882 (S.D. Tex. 2008) (quoting United States v. Brown, 250 F.3d 907, 915 {5th Cir. 2001)). Moreover, "[a)ny prior restraint on expression [arrives in court] with a 'heavy presumption' against its constitutional validity," with the government having the burden of proving that such a restriction is justified. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 558-59 (1976) (quoting Organizationfor a Better Austin y. Keefe, 402 U.S. 415, 418-20 (1971). In Nebraska Press, the Supreme Court noted that a prior restraint is an immediate and irreversible sanction because it "freezes" speech, which is "the most serious and the least tolerable infringement on First Amendment rights." Id. at 559. Applying this reasoning, other courts have held that the Stored Communications Act and federal pen/trap statute do not permit gag orders of indefinite duration. See, e.g. In re Sealing & Non-Disclosure ofPen/Trap/2703(d) Orders, 562 F. Supp. 2d 876, 895 (S.D. Tex. 2008) (holding that a 180-day period is "most reasonable as a default setting for sealing and non-disclosure" orders); Matter Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 7 of 26 PageID# 1056 redacted of Grand Jury Subpoena for: [Redactedj@yahoo.com, No. 5:15-CR'90096-PSC, 2015 WL 604267, at *1 (N.D. Cal. Feb. 5, 2015) (denying government's motion to gag Yahoo!, pursuant to 18 U.S.C. 2705(b), "until further order of the In this case, the federal government has prohibited Mr. Levison from disclosing the target in the Lavabit proceedings, and freely discussing the underlying investigation concerning This specific prohibition of aan entire topic is a content-based restriction of Mr. Levison's speech under the First Amendment. For such a gag order to be constitutional, it must be narrowly tailored to serve a compelling government interest. IOTA XI, 993 F.2d at 394. In addition, the gag order in this case applies to Mr. Levison "until otherwise authorized" by the Court. Indeed, even in the very serious context of national security, the Supreme Court has found that a prior restraint is permissible only if the speech will "surely result in direct, immediate, and irreparable harm to our Nation or its people." New York Times u. United States {Pentagon Papers), 403 U.S. 713, 730 (1971) (per curium) (Stewart &White, JJ., concurring] 3 The Stewart-White concurrence is the holding of the case because, of the six Justices who concurred in the judgment. Justices Stewart and White concurred on the narrowest grounds. See Marks v. United States, 430 U.S. 188, 193 (1977) ("[wjhen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds") (internal quotation omitted); accord, City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 764 n. 9 (1988). In New York Times v. United States, Justices Black and Douglas would clearly have refused to enjoin publication even if the Government had Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 8 of 26 PageID# 1057 redacted 18 U.S.C. § 2705(b) authorizes notice preclusion, but only if the court has reason to believe that notification will result in: (1) endangering the life or physical safety of an individual; (2) flight from prosecution; (3) destruction or tampering with evidence; (4) intimidating of potential witnesses; or (5) otherwise seriously jeopardizing an investigation or unduly delaying a trial. §2705(b)(l)-(5). First, there is no evidence or insinuation in the government's filings to suggest that a disclosure by Mr. Levison or Lavabit of the sealed information would somehow endanger somebody's life or safety. Second, there is no risk will flee from prosecution, as a result of such disclosure, because he has already fled from prosecution. Third, there is no risk that I^^^Hwill tamper with his Lavabit accounts or otherwise alter his behavior if Mr. Levison were to disclose the information under seal because Lavabit is no met Stewart's test. See, e.g., New York Times, 403 U.S. at 730 (Black, J., concurring) (Black 86 Douglas, JJ., concurring) (no evidence that disclosure would cause "direct, immediate, and irreparable damage...") Justice Brennan also would likely have held more broadly. "[T]he First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result. . . . [0}nly governmental . . . proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order. In no event may mere conclusions be sufiicient: for if the Executive Branch seeks judicial aid in preventing publication, it must inevitably submit the basis upon which that aid is sought to scrutiny by the judiciary." Id. at 725-27 (Brennan, J., concurring). Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 9 of 26 PageID# 1058 redacted longer operating its email service. This makes it impossible to access, let alone tamper with his accounts. The investigation is already two years old, so any compelling interest the government may have had, as defined in 18 U.S.C. § 2705(b), has long since expired. Without a compelling government interest, the continued suppression of Mr. Levison's speech cannot pass constitutional muster. See United States v. O'Brien, 391 U.S. 367, 376-77 (1968).** "(The GovemmentJ must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994) (internal quotation marks and citations omitted). The government cannot meet this burden here because it cannot demonstrate that any actual harm will occur as a result of fully unsealing these documents. Indeed, its recited harms are now two years old, and any urgency to their claims, if it existed, has vanished with the passage of time. Even if the government had a compelling interest when the gag order was issued, the passage of time has tipped the scales and now favors the movsint's First Amendment right to free speech. The Southern District of Texas recognizcd as much when it held that a 180-day period is "reasonable as a default setting for sealing and non- In United States v. O'Brien, the Supreme Court held that the government may regulate speech if: (1) the regulation is within the government's constitutional power; (2) the regulation furthers an important or substantial government interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restricdon on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 10 of 26 PageID# 1059 redacted disclosure" orders. In re Sealing & Non-Disclosure ofPen/Trap/2703(d) Orders, 562 F. Supp. 2d 876, 895 (S.D. Tex. 2008). The gag order in this case, which prohibits Mr. Levison from speaking freely, has already eclipsed this "reasonable" period, as cited in In re Sealing & Non-Disclosure, by a factor of Fourth, the gag order does not relate to other witnesses; it simply prohibits Mr. Levison from confirming that the linvestigation led to the Lavabit proceedings, and discussing the investigation in its proper context. was the target, Mr. Despite Levison has been required to tread carefully, and discuss them separately; an act of verbal contortion. He is perpetually in fear that a misstep will result in this Court holding him in contempt for violating its gag orders. Fifth, there is no risk that a disclosure would jeopardize the investigation is public because the government's investigation of knowledge. The that the government actually sought to search Lavabit for evidence related to The government's prohibitions on speech do not protect the secrecy of, or otherwise imperil a government investigation, but rather prevent Mr. Levison from fully engaging in the public discourse involving and the subsequent government investigation. See In re A 18 U.S.C, § 2703 Order Issued to Google on June 10, 2011, 2012 U.S. Dist. LEXIS 25770, at *2 (E.D. Va. 2012) {Jones, Jr., J.) (stating that the government's concern of confidentiality is moot, because the use of the government's tools in this matter have been widely publicized). See, Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 11 of 26 PageID# 1060 redacted The gag orders preventing the release of information that this motion seeks to unseal are not narrowly tailored or designed to achieve a specific and important purpose. Instead, they are a prior restraint on Mr. Levison's speech, of unlimited duration, which have greatly aiTected Mr. Levison and Lavabit, while doing nothing to further the government investigation. As such, the gag orders represent a violation of the movants First Amendment's right to free speech. 11. THE LAW SUPPORTS THE RIGHT OF PUBLIC ACCESS TO THE SEALED DOCUMENTS Despite the lack of statutory authority, the 2703(d) search warrant and other related documents, along with the 2705(b) Order, remain partially under seal and the subject of non-disclosure, or "gag" orders. The sealing of judicial records imposes a limit on the public's right of access, which derives from two sources, the First Amendment and the common law. Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 575 (4lJi Cir. 2004) (citing Stone v. University ofMd. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988)); see Richmond Newspapers, Inc. V. Virginia, 448 U.S. 555, 580 (1980) (the press and public have a First Amendment right to attend a criminal trial); Press-Enterprise Co. v. Superior ®The title of this article was chosen by' not Mr. Levison. Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 12 of 26 PageID# 1061 ^Dacted Court, 478 U.S. 1, 2 (1986) (the public has a First Amendment right of access to preliminary hearing and transcript). a. The Common Law Right Of Access Attaches To The Search Warrant "For a right of access to exist under the First Amendment or common law, the document must be a 'judicial record." United States v. Applebaum, 707 F.3d 283, 290 (4th Cir. 2013) (citing Baltimore Sun Co. v. Goetz, 886 F.2d 60, 63-64 (4th Cir. 1989)). In Applebaum^ the Fourth Circuit held that § 2703(d) orders and subsequent orders issued by the court are judicial records because they are judicially created. Id. at 290. The Court also held that the common law presumption of access attaches to such documents. Id. at 291. In this case, the 2705(b) Order was issued pursuant to 18 U.S.C. § 2703(d), therefore it is a judicial record and a presumption of access attaches to it. To overcome the common law presumption of access, a court must find that there is a "significant countervailing interest" in support of sealing that outweighs the public's interest in openness. Id. at 293. Under the common law, the decision to seal or grant access to warrant papers lies within the discretion of the judicial officer who issued the warrant. Media Gen. Operations, Inc. v. Buchanan, 417 F.3d 424, 429 (4th Cir. 2005). If a judicial officer determines that full public access is not appropriate, he or she "must consider alternatives to sealing the documents," including granting some public access or releasing a redacted version of the documents. Id. (quoting Baltimore Sun, 886 F.2d at 66). In the present case, now, two years later, there is no longer a need for such Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 13 of 26 PageID# 1062 REDACTED partial redactions because the government's investigation ofmHimis well known and widely publicized. b. There Is No Statutory Authority To Seal The g 270S(d) Documents There are no provisions in the SCA to seal orders or other documents. By contrast, the Pen/Trap Statute authorizes electronic surveillance and directs that pen/trap orders be sealed "until otherwise ordered by the court". 18 U.S.C. §§ 3123. Similarly, the Wiretap Act, another surveillance statute, "expressly directs that applications and orders granted under its provisions be sealed. 18 U.S.C. § 2518(8)(b). Thus, Congress has specifically provided for sealing provisions when it has so desired. Additionally, where Congress includes particular language in one section of a statute but omits it in another, it is assumed that Congress acted intentionally. Keene Corp. v. United States, 508 U.S. 200, 208 (1993). Therefore, Congress has provided no statutory basis for sealing an application or order under the SCA that would overcome the common law right to access. c. The First Amendment Right To Petition The Government For Redress Of Grievances Demands Public Access The Petition Clause of the First Amendment protects the public's right to petition the government for redress of grievances. Borough ofDuryea, Pa. v. Guamieri, 131 S.Ct. 2488, 2494 (2011). "It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights... to petition for redress of grievances." Id. at 2495 (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945)). Free speech allows the Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 14 of 26 PageID# 1063 redacted public to state its grievances and the right to petition ensures that it can communicate those grievances to the government. Id. The non-disclosure orders in this case deny Mr. Levison these fundamental rights and forbid him from discussing portions of his experience with the world freely and without fear. The non-disclosure orders prohibit Mr. Levison from disclosing any information regarding the target of the underlying investigation. A representative democracy depends upon the people being afforded the opportunity to air their grievances to their representatives. Mr. Levison has been and continues to be denied the ability to petition the government for redress. These orders are the hallmark of an extremely unsettling expansion of government power that jeopardizes the privacy of thousands to aid the investigation of an individual. Even a partial concealment of these proceedings undermines Mr. Levison right to voice his political opinions and threatens the free formation of opinions on a matter of public miport. Conclusion For the foregoing reasons, Lavabit and Ladar Levison respectfully move this Court to lift fully the non-disclosure orders issued to Mr. Levison. LAVABIT LLC By Counsel J^/e R. BMnallLA^SB## 79292 iseT. ditch€va, VSB# 86200 rey 8s airmail, PLLC 17 King Street, Suite 300 Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 15 of 26 PageID# 1064 REDACTED Alexandria, Virginia 22314 (703) 888-1943 Telephone (703) 888-1930- Facsimile jbinnall@harveybinnall.com lgitcheva@harveybinnail.com Counsel for Lavabit LLC Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 16 of 26 PageID# 1065 REDACTED Certificate of Service I certify that on. this 11th day of December, 2015, this Motion to Unseal Records and Vacate Non-Disclosure Orders and Memorandum of Law in Support of Motion was hand delivered to the person at the addresses listed below: James L. Trump Senior Litigation Counsel United States Attorney's Office Eastern District of Virginia 2100 Jamieson Avenue Alexandria, VA 22314 jim.trump@usdoj.gov esse R. Binn Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 17 of 26 PageID# 1066 REDACTED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VTRGINIA Alexandria Division IN THE NIATTER OF THE FILED UNDER SEAL APPLICATION OF THE UNITED STATES OF A]vIERICA FOR AN ORDER AUTHORIZING THE USE OF A PEN REGISTERyTR,^P AND TRACE DEVICE No. 1:13EC297 ON AN ELECTRONIC MAIL ACCOUNT IN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION ASSOC^g^m^^ No. 1:I3SW522 STORED AT PREMISES CONTROLLED BY LAVABIT LLC In re Grand Jury No. 13-1 SEALING ORDER Upon the motion of the United States, good cause having been shown, it is hereby ORDERED that: The grand jury subpoena issued to Ladar Norman Levison for an appearance on July 16, 2013, shall be placed under seal until further order of this Court; It is further ORDERED that the government shall serve Mr. Levison with a copy of this Order along with a copy of its motion to seal; and It is further ORDERED that the government's motion to seal the grand jury subpoena and this Order shall be placed under seal. Alexandria, Virginia Claude M. Hilton JuJy /•(• .2013 United Stales District Judge EXHIBIT Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 18 of 26 PageID# 1067 THE UNITED STATES DISTRICT COURT FOR THE REDACTED EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING THE INSTALLATION AND USE OF A PEN REGISTERmiAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT (Under Sea]^ l:13ECa^n ORDER This matter having come before the Court pursuant to an Application under 18 U.S.C. § 3122, by Andrew Peterson, Assistant United States Attorney, an attorney for theGovernment as defined by Fed. R. Crim. P. 1(b)(1), requesting anOrder under 18 U.S.C. § 3123, authorizing the installation and use of a pen register and the use of a trap and trace device or process ("pen/trap device") on all electronic communications being sent from or sent to the account associated wi at registered to subscriber^^^^^^^^l at Lavabit, LLC (hereinafter referred to as the "SUBJECT ELECTRONIC MAIL ACCOUNT"). The Court finds that the applicant has certified that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation into possible violation(s) of 18 §§ rr APPEARING that the information likely to be obtained by the pen/trap device is relevant to an ongoing criminal investigation of the specified offense; IT IS ORDERED, pursuant to 18 U.S.C. § 3123, that a pen/trap device may be installed and used by Lavabit and the Federal Bureau of Investigation to capture all non-content dialing, routing, addressing, and signaling information (as described and limited inthe Application), sent from or sent to the SUBJECT ELECTRONIC MAIL ACCOUNT, to record the date and time of the initiation and receipt of such transmissions, to record Che duration of the transmissions, and to record user log-in data (date, time, duration, and Internet Protocol address of all log-ins) on the EXHIBIT Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 19 of 26 PageID# 1068 redacted SUBJECT ELECTRONIC MAIL ACCOUNT, ail for a period of sixty (60) days from the date of such Order or the date the monitoring equipment becomes operational, whichever occure later; IT IS FURTHERORDERED, pursuant to 18 U.S.C. § 3123(b)(2), that Lavabit shall furnish agents from the Federal Bureau of Investigation, forthwith, all Information, facilities, and technical assistance necessary to accomplish the installationand use of ttte pen/trapdevice unobtrusively and with minimum Interference to the services that are accorded persons with respect to whom the installation and use is to take place; IT IS FURTHER ORDERED that the United States take reasonable steps to ensure that the monitoring equipment is not used to capture any "Subject:" portion of anelectronic mail message, which could possibly containcontent; IT IS FURTHER ORDERED that Lavabit shall be compensated by the Federal Bureau of Investigation for reasonable expenses Incurred inproviding technical assistance; IT IS FURTHER ORDERED that, in the event that the implementing investigative agency seeks to install and use its own pen/trap device on a packet-switched data network ofa public provider, the United States shall ensure that a record is maintained which will identify; (a) any ofRcerCs) who installed the device and any officer(s) who accessed the device to obtain information from the network; (b) the date and time the device was installed, the date and lime the device was uninstalled, and the date, time, and duration of each time the device Isaccessed to obtain information; (c) theconfiguration of the device at thetime of its installation and any subsequent modification thereof; and (d) any information which has been collected by the device. To the extent that the pen/trap device can be set to automatically record this information electronically, the record shall bemaintained electronically throughout the installation and use of the pen/trap device. Pursuant to 18 U.S.C. § 3123(a)(3)(B), as amended, such record(s) shall be provided ex parte and under seal to this Court within 30 days of the termination of this Order, including any extensions thereof; IT IS FURTHER ORDERED, pursuant to 18 U.S.C. § 3123(d), that this Order and the Application be sealed until otherwise ordered by the Court, and that copies ofsuch Order may be Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 20 of 26 PageID# 1069 REDACTED ftimished to the Federal Bureau of Investigation, the United Stales Attorney's Office, and Lavabit; IT IS FURTHER ORDERED that Lavabit shall not disclose the existence of the pen/trap device, or the existence of the investigation to any person, except as necessary to effectuate this Order, unless or until otherwise ordered by the Court. SO ORDERED: Tk^esa CartoU Buclianan States Magistrate Judge Hon. Theresa C. Buchanan United Statep Magistrate Judge Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 21 of 26 PageID# 1070 UNITED STATES DISTRICT COURT Ti FOR THE EASTERN DISTRICT OF VIRGINIA '•! j I 020 L_. Cif-n< ij : ..."t;, IN RE APPLICATION OF THE UNITED STATES OF ANIERICA FOR AN ORDER PURSUANT TO MISC. NO. 1:13 EC 18 U.S.C.§ 2703(d) Filed Under Seal ORDER The United States has submitted an application pursuant to 18 U.S.C. § 2703(d). requesting that the Court issue an Order requiring Lavabit LLC, an electronic conimunlcations service provider and/or a remote computing service located in Dallas, TX. to disclose the records and other information described in Attachment A to this Order. The Court finds that the United States has offered specific and articulablc facts showing that there are reasonable grounds to believe that the records or other information sought are relevant and material to an ongoing criminal investigation. The Court deteraiines that there is reason to believe that notification of the existence of this Order vvill seriouslyjeopardize the ongoing investigation, including by giving targets an opportunity to flee or continue flight from prosecution, destroy or tamper with evidence, change patterns of behavior, or notify confederates. See 18 U.S.C. § 2705(b)(2), (3), (5). IT IS THEREFORE ORDERED, pursuant to 18 U.S.C. § 2703(d). that Lavabit LLC shall, within ten days of the date of this Order, disclose to the United States the records and other information described in Attachment A to this Order. IT IS FURTHER ORDERED that Lavabit LLC shall not disclose the existence of the application of the United States, or the existence of this Order of the Court, to the subscribers of the accoum(s) listed in Attachment A, or to any other person, unless and until otherwise EXHIBIT Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 22 of 26 PageID# 1071 ^'iACTED authorized to do so by the Court, except that Lavabit LLC may disclose this Order to an attorney for Lavabit LLC for the purpose of receiving legal advice. IT IS FURTHER ORDERED that the application and this Order aresealed until otherwise ordered by the Court. United States Magistrate Judge _A Tpi.-'":. ccpv. Tllsir:: -c-nK, U.C. DiS n-'-wT CO^J^J Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 23 of 26 PageID# 1072 ATTACHMENT A I. The Account(s) The Order applies lo certain records and information associated with the following email account(s): II. Records and Other Information to Be Disclosed Lavabit LLC is required to disclose the following records and other information, if available, to die United States for each account or identifier listed in Part I of this Attachment ("Account"), for the time period from inception to the present: A. The following information about the customers or subscribers of the Account: 1. 2. Names (including subscriber names, user names, and screen names); Addresses (including mailing addresses, residential addresses, business addresses, and e-mail addresses); 3. 4. Local and long distance telephone connection records; Records of session limes and durations, and the temporarily assigned network addresses (such as Internet Protocol ("IP") addresses) associated with those sessions; 5. 6. 7. 8. B. Length of service (including start date) and types of service utilized; Telephone or instrument numbers (including MAC addresses); Other subscriber numbers or identities (including the registration Internet Protocol ("IP") address); and Means and source of payment for such service (including any credit card or bank account number) and billing records. Ail records and other information (not including the contents of communications) relating to the Account, including: 1. Records of user activity for each connection made to or from the Account, including log files; messaging logs; the date, time, length, and method of connections; data transfer volume; user names; and source and destination Internet Protocol addresses; 2. Information about each communication sent or received by the Account, including the date and time of the communication, the method of communication, and the source and destination of the communication (such as source and destination email addresses, IP addresses, and telephone numbers). Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 24 of 26 PageID# 1073 ^Dacted CERTIFICATE OF AUTHENTICITY OF DOMESTIC BUSINESS RECORDS PURSUANT TO FEDERAL RULE OF EVIDENCE 902(11) attest, under penalties of perjuiyunderthe laws of the United States ofAmerica pursuant to28 U.S.C. § 1746, that the information contained in this declaration is true and correct. I am employed by Lavabit LLC, and my official 1 am a custodian of records for Lavabit LLC. I stale title is that each of the records attached hereto is the original record ora true duplicate of the original record in the custody of Lavabit LLC, and that I am the custodian of the attached records consisting of. a. (pages/CDs/kilobytes). I further state that: ali records attached to this certificate were made at or near the time of the occurrence of the matter set forth, by, or from information transmitted by, a person with knowledge of those matters; b. such records were kept in the ordinary courseof a regularly conducted business activity of Lavabit LLC; and c. such records were made by Lavabit LLC as a regular practice. (further state that this certification is intended to satisfy Rule 902(11) of the Federal Rules of Evidence. Signature Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 25 of 26 PageID# 1074 [N THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGrNIA ALEXANDRIA DIVISION « I E OCT -1 ZQt3 cufK.us oismici cou^ii AlW«iOR!4.V:aGiru_ IN THE MATTER OF THE APPLICATION OF THE UNITED NO. 1:13 EC 297 STATES AUTHORIZING THE USE OF A PEN IIEGISTERTR.A.P AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT [N THE MATTER OF THE SEARCH AND SEIZURE OF INF0R^•1AT10N NO. 1:13 SW 522 ASSOCIATED WITH THAT IS STORED AND CONTROLLED AT PREMISES CONTROLLED BY LAVABIT LLC IN RE GRAND JURY SUBPOENA NO. I3-I UNDER SEAL ORDER The United States has proposed partially unsealing records in this mancr due lo public disclosures made by Ladar Levison and Lavabit, LLC and for ihe purpose ofcrcaiing a public record for Mr. Levison's appeal. The Court has considered the original sealing orders, the motions in support of the original sealing orders, the government's ex parte motion lo unseal certain documents, and the prior pleadings of Mr. Levison, and hereby finds that: (1) the govemment has a compelling interest in keeping certain Information in the documents sealed, and the government has proposed redacted version.s of the documents ihai minimizes the information under seal: (2) the government's interest in keeping the redacted material scaled outweighs any public interest in disclosure; and EXHIBIT Case 1:13-sw-00522-CMH Document 36-36 Filed 02/24/16 Page 26 of 26 PageID# 1075 ^Dacted (3) having considered alternatives to the proposed redactions none wtU adequately protect that interest; it is hereby ORDERED that the redacted versions of certain records filed in the above captioned matter are partially unsealed. The unsealed records are attached to this Order. To the extent any such record is covered by a non-disclosure Order issued pursuant to 18 U.S.C. § 2705(b), the non-disclosure obligation docs not apply to the unsealed, redacted version of thedocument. The Clerk of the Court may publicly release the redacted version of any of the records attached to this Order. Any record not attached to this Order, aswell as the iinredacted copies ofany record filed in the above-captioned matter, including the government's exparte, sealed Motion to Unseal and Statement of Reasons will remain sealed until further Order of the Court. The Honorable Claude M. Hilton United States District Judge Date: CXsf 2-, AlexMdria, VA Case 1:13-sw-00522-CMH Document 36-37 Filed 02/24/16 Page 1 of 1 PageID# 1076 redacted IN THE TOUTED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division DEC I \d 2015 IN THE MATTER OF THE APPLICATION OF THE UNITED STATES AUTHORIZING THE USE OF A PEN REGISTER/TRAP AND TRACE DEVICE ON AN ELECTRONIC NIAIL UNDER SEAL Criminal No. 1:13EC297 Criminal No. 1:13SW522 Criminal No. 1:13-1 ACCOUNT IN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION ASSOCIATED WITH THAT IS STORED AND CONTROLLED AT PREMISES CONTROLLED BY LAVABIT, IN RE: LLC. GRAND JURY ORDER This matter comes before the Court on Lavabit, LLC and Mr. Ladar Levinson's ("Movants") Motion to Unseal Records and Vacate Non-Disclosure Orders. It is hereby ORDERED that the Government shall have until January 6, 2016 to file a response to the Movants' Motion. CLAUDE M. HILTON UNITED STATES DISTRCT JUDGE Alexandria, Virginia December , 2015 Case 1:13-sw-00522-CMH Document 36-38 Filed 02/24/16 Page 1 of 6 PageID# 1077 IN THE UNITED STATES DISTRICT COURT FOR THE FILED EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING THE USE OF A PEN REGISTER/TRAP AND TRACE DEVICE ON AN ELECTRONIC No, 1:I3EC297 im M-l A 9=45 CIER;: US DISTRICT COURT ALEX/j:nRI>\, VIRGINIA MAIL ACCOUNT FN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION No. 1:13SW522 ASSOCIATED WITH [REDACTED] THAT IS STORED AT PREMISES CONTROLLED BY LAVABIT LLC In re Grand Jury No. 13-1 RESPONSE OF THE UNITED STATES TO MOTION TO UNSEAL RECORDS AND VACATE NON-DISCLOSURE ORDERS Lavabit LLC and Ladar Levison have moved this Court for an order authorizing the public disclosure ofall information currently under seal in the referenced dockets. The United States opposes Lavabit's motion and asks that the Court instead enter the attached Protective Order. The history of these proceedings is well-documented. See In re Under Seat, 749 F.3d 276, 279 (4ih Cir. 2014). And while this Court's sealing and non-disclosure orders remain in effect, the only information not publicly disclosed is the identity of the target of the investigation and that person's email address. See In re Under Seal, Fourth Circuit Appeal 13-4625, Joint Appendix Volume I, Docket Entry 27, filed October 10, 10, 2013. Thegovernment opposes the Case 1:13-sw-00522-CMH Document 36-38 Filed 02/24/16 Page 2 of 6 PageID# 1078 "^CTEti public disclosure of the identity of the target of the investigation and thetarget's email address, as such disclosure would reveal a matter occurring before the grand jury, which is prohibited under Rule 6(e)(2) of the Federal Rules of Criminal Procedure. Lavabit, on the other hand, seeks an order requiring the government to reveal that information so that Ladar Levison can "freelydiscuss the underlying investigation" involving this one subscriber. The question before this Court is whether the inforraalion at issue, the identity of a target of a grand jury investigation, which is contained in pleadings and orders under both the PeoTrap Statute, 18 U.S.C. §§ 3123-27, and the Stored Communications Act, 18 U.S.C. §§ 2701-12, is subject to a public right of access under the First Amendment and/or common law. The First Amendment analysis is frequently called the "experience and logic" test. Courts ask (1) whether the place and process have historically been open to the press and general public, and (2) whether public access plays a significant positive role in the functioning of the particular proccss in question. See Baltimore Sun v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989), quoting Press Enterprises Co. V. Superior Cowl, 478 U.S. 1, 8-1- )1988). The common law right of access, on the other hand, involves a balancing of interests whereby a court must consider whetherthe public's right to accessis outweighed by a significantcountervailing interest in continued sealing. See UnderSeal V. Under Seal, 326 F.3d 479, 486 (4th Cir. 2003). The information Lavabit wants to unseal (Lavabit's subscriber and the subscriber's email address) is revealed in the un-redacted pleadings and orders that are a part of the pre-indictment investigation of the case. See Application ofthe United Stales ofAmericafor an Order Pursuant to 18 U.S.C Seciion 2703(d), 707 F.3d 283, 292 and 295 (4th Cir. 2013) (finding that §2703(d) orders, pen registers, and wiretaps are pre-indictment investigative matters akin to grand jury Case 1:13-sw-00522-CMH Document 36-38 Filed 02/24/16 Page 3 of 6 PageID# 1079 redacted investigations). As noted above, the government is barred by Rule 6(e)(2) ofthe Federal Rules of Criminal Procedure from disclosing publicly the identity of a target of a grand jury investigation, an investigation that is not closed but ongoing. In this context, the Fourth Circuit has said that public access does not play a significant role in the functioning of investigations involving §2703(d) orders, and there is, accordingly, no First Amendment right to access them. Id. at 292, quoting In re Sealed Case, 199 F.3d 522, 526 (D.C.Cir. 2000). The Fourth Circuit reasoned: Section 2703(d) proceedings can be likened to grand jury proceedings. In fact, they arc a step removed from grand juryproceedings, and are perhaps even more sacrosanct. Proceedings for the issuance of § 2703(d) orders are also like proceedings for the issuance ofsearch warrants, which we have noted are not open. See Goelz. 886 F.2d at 64 (observing that the Supreme Court has twice "recognized diat proceedings for the issuance ofsearch warrants are not open"). Because secrecy is necessary for the proper functioning ofthe criminal investigations at this § 2703(d) phase, openness will frustrate the government's operations. Because § 2703(d) orders and proceedings fail the logic prong, we hold that there is no First Amendment right to access them. 707 F.3d at 292 (footnote omitted). As to whether there is a common law right of access to the identity of Lavabit's subscriber, Lavabit explains very little about the public's interest in this matter other than to say that Lavabit has been precluded from "freely discussing the underiying investigation." To the contrary, Lavabit can - and has - discussed the underlying investigation publicly in the context of its appeal to Fourth Circuit, resulting ina lengthy published opinion. In addition, a cursory internet search reveals tliat Ladar Levison has spoken out publicly on numerous other occasions about the case, his appeal, and internet privacy and encrypted email topics generally. Whether the government should be able to compel Lavabit - or any other service provider - to turn over unencrypted email account information for users of encrypted email service is certainly an issue Case 1:13-sw-00522-CMH Document 36-38 Filed 02/24/16 Page 4 of 6 PageID# 1080 redacted that can be debated and discussed in public forums without identifying a specitlc subscriber. Indeed, if Ladar Levison is to be believed (based on what he has said in a number ofarticles and videotaped interviews), he fought the government's demands on principle for all ofhis encrypted email customers, Revealing the name of the particular subscriber at issue in this case does not change the nature ofthe dialogue in which Levison plans to engage. Moreover, whether or not this isa high-profile investigation does not justify public access to the target's identity and should play no role in the Court's analysis. Id. at 293-94. The government concedes that Lavabit should be able to notify its subscriber of the existence ofthe proposed orders and underlying pleadings in this case. The subscriber, of course, much like the grand jury witness, is under no obligation of secrecy with regard to any of the underlying sealed information. The United States proposes that the Court enter theattached Protective Order. The protective order would allow Lavabit to notify its subscriber and would give the public access to all of the pleadings and orders in these several dockets with only the identity ofthe target and the target's email account information redacted from the public record. The proposed order would Case 1:13-sw-00522-CMH Document 36-38 Filed 02/24/16 Page 5 of 6 PageID# 1081 ^DACTED also require the government to move to unseal the protected information promptly once the grand jury investigation is completed. Respectfully submitted, Dana J. Boente United States Attorney James L. Trump Assistant United States Attorney 2100 Jamieson Avenue Alexandria. Virginia 22314 Phone; 703-299-3700 Email; jim.trump@usdoj.gov Case 1:13-sw-00522-CMH Document 36-38 Filed 02/24/16 Page 6 of 6 PageID# 1082 redacted CERTIFICATE OF SERVICE I hereby cerlify lhat on the 6'*^ day ofJanuary, 2016,1 electronically filed the. foregoing Response ofthe United Slates to Motion to Unseal Records and Vacate Non-Disclosure Orders with the Clerk of Court using the CM/ECF system, which will send a notification ofsuch filing (NEF) to the following; Jesse R. Binnall Harvey & Binnall, PLLC 717 King street, suite 300 Alexandria, Virginia 22314 ibinnall@harvevbinnall.com James L. Trump Assistant United States Attorney 2100 Jamieson Avenue Alexandria, Virginia 22314 (703)299-3726 jim.trump@usdoj.gov Case 1:13-sw-00522-CMH Document 36-39 Filed 02/24/16 Page 1 of 2 PageID# 1083 ^DACTED IN THE UNITED STA TES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division IN THE MATTER OF THE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING THE USE OF A PEN REGlSTER/fRAP AND TRACE DEVICE ON AN ELECTRONIC No. l;13EC297 CliRK.US- DlSrHICT COURT AlEWKDfiU,VmcihlA MAIL ACCOUNT IN THE MA'H'ER OF THE SEARCH AND No. I:!3SW522 SEIZURE OF INFORMATION ASSOCIATED WITH [REDACTED] THAT IS STORED AT PREMISES CONTROLLED BY LAVABIT LLC in re Grand Jury No. 13-1 PUOTECTIVE ORDER Lavabil LLC and Ladar Levison have moved (his Courl for an order direciing tlic unsealing of all information in these proceedings. The United Stmes opposes this motion. Based on the reason.s set forth in the government's response, good cause having been shown, It is hereby ORDERED that the Motion to Unseal Records and Vacate Non-Disclosure Orders is denied; It is further ORDERED that Lavabit LLC or Ladar Levison may disclose to its subscriber the nature of these proceedings and the underlying un-redacted pleadings and orders; It is further ORDERED that (he United States shall file on the public docket copies of all of the previously filed pleadings, transcripts, and orders wilh redactions for only the identity of the subscriber and the subscriber's email address; and Case 1:13-sw-00522-CMH Document 36-39 Filed 02/24/16 Page 2 of 2 PageID# 1084 ^OACTED It is further ORDERED that the United States shall, upon completion of the grand jury investigation, promptly move to unseal any information remaining under seal in these matters. Entered in Alexandria, Virginia, this y^av of January, 2016. Claude M. Hilton Senior United States DistrictJudge Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 1 of 27 PageID# 1085 REDACTED en cn IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA, ALEXANDRIA DIVISION IN THE MATTER OF THE APPLICATION OF THE UNITED !' ! - NO. 1:13 EC 297 STATES AUTHORIZING THE USE OF A PEN REGISTER/TRAP AND TRACE DEVICE ON AN ELECTRONIC MAIL ACCOUNT IN THE MATTER OF THE SEARCH AND SEIZURE OF INFORMATION NO. 1:13 SW 522 ASSOCIATED WITH THAT IS STORED AND CONTROLLED AT PREMISES CONTROLLED BY LAVABIT LLC IN RE GRAND JURY SUBPOENA NO. 13-1 UNDER SEAL RESPONSE OF THE UNITED STATES IN OPPOSITION TO LAVABIT'S MOTION TO QUASH SUBPOENA AND MOTION TO FOR UNSEALING OF SEALED COURT RECORDS INTRODUCTION This Court has ordered Lavabit, LLC to provide the government with the technical assistance necessary to implementand use a pen register and trap and trace device ("pen-trap device"). A full month after that order, and after an order to compel compliancc, a grand jury subpoena, and a search warrant for that technical assistance, Lavabit has still not complied. Repeated efforts to seek that technical assistance from Lavabit's owner have failed. While the government continues to work toward a mutually acceptable solution, at present there does not appear to be a way to implement this Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 2 of 27 PageID# 1086 ^DACTEd Court's order, as well as to comply wih the subpoena and search warrant, without requiring Lavabit to disclose an encryption key to the goveininent. This Court's orders, search warrant, and the grand jury subpoena all compel that result, and they are all lawfiil. Accordingly, Lavabit's motion to quash the search wwrant and subpoena should be denied. Lavabit and its owner have also moved to unseal all records in this matter and lift the order issued by the Courtpreventing them from disclosing a search warrant issued in this case. Because publicdiscussion of these records would alert the targetand jeopardize an active criminal investigation, the government's compelling interest in maintaining the secrecy and integrity of that investigation outweighs any public rightof access to, or interest in publicly discussing, those records, and this motion should also be denied. TECHNICAL BACKGROUND Pen registers and trap and trace devices To investigate Internet communications, Congress has permitted lawenforcement to employ two surveillance techniques—the pen register and thetrap and trace device— that permit law enforcement to learn information about anindividual's communications, See 18 U.S.C. §§ 3121-27 ("Pen-Trap Act"), These techniques, collectively known as a "pen-trap," permit law enforcement to learn facts about e-mailsand other communications as they are sent—but not to obtain their content. See, e.g.. United Slates V. Forrester. 512 F.3d 500, 509-13 (9th Cir. 2008) (upholding government's use of a pentrap that "enabled the government to learn the to/from addresses of Alba's e-mail Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 3 of 27 PageID# 1087 redacted messages, the IP addresses of the websites thatAlbavisited and the total volume of information sent to or from his account"). The Pen-Trap Act "unambiguously authori2:e[s] the use of pen registers and trap and trace devices on e-mail accounts." In Matter ofApplication ofU,S. For an Order Authorizing the Installation & Use ofa Pen Register & a Trap <& Trace Device on E-Mail Account, 416 F, Supp. 2d 13,14 (D.D.C. 2006) (Hogan, J.) ("Hogan Order"). It authorizes both the installation of a "device," meaning, a separate computer attached to the provider's network, and also a "process," meaning, a software program run on the provider. H at 16; 18 U.S.C. § 3127. Secure SocketLayer (SSL) or Transport LayerSecurity (TLS) Encryption Encrypting communications sent across the Internet is a way to ensure that only the sender and receiver of a communication can read it. Among the most common methods of encrypting Web and e-mail traffic is Secure Socket Layer (SSL), which is also called Transport Layer Security (TLS) encryption. "The Secure SocketLayer ('SSL') is one method for providing some security for Internet communications. SSL provides security by establishing a secure channel for communications between a web browser and the web server; that is, SSL ensures that the messages passed between the client web browser and the web server are encrypted." Disney Enterprises, Inc. v. Rea, No. l:12-CV-687. 2013 WL 1619686 *9 (E.D.Va. Apr. 11,2013); see also Stambler v, RSA Sec.. Inc., 2003 WL 22749855 *2-3 (D. Del. 2003) (describing SSL's technical operation). As with most forms of encryption, SSL relies on the use of large nxunbers known as "keys." Keys are parameters used to encrypt or decrypt data. Specifically, SSL Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 4 of 27 PageID# 1088 REDACTED encryption employs public-key cryptography, in which both the sender and receiver each have two mathematically linked keys: a "public" key and a "private" key. "Public" keys are published, but "private" keys are not, Sending anencrypted message to someone requires knowing his or her public key; decrypting that message requires knowing his or her private key. When Internet traffic is encrypted with SSL, capturing non-content information on e-mail communication from a pen-trap device is possible only after the traffic is decrypted, Because Internet conununications closely intermingle content with noncontent, pen-trap devices by necessity scan network traffic but exclude from any report to law enforcement officers all information relating to the subject line and body of the communication. See 18U.S.C. § 3127; Hogon Order, 416 F. Supp. 2d at 17-18. A pen- trap device, by definition, cannot expose to law enforcement officers the content ofany communication. See id FACTS The information at issue before the court is relevant to an ongoing criminal investigation of for violations of numerous federal statutes, including 18 U.S.C. 18 U.S.C. and 18 U.S.C. criminal complaint was filed charging fugitive. \vith these offenses. 'remains a Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 5 of 27 PageID# 1089 A. Section 2703(d) Order The criminal investigation has revealed thal las utilized and continues obtained through Lavabit, an to utilize an e-mail account, electronic communications service provider. On or about June 8,2013, a grand jury subpoena was served on Lavabit for billing and subscriber information Lavabit e-mail account, Lavabit provided that information, which showed that the On June 10, 2013, the subject e-mail account is registered to' United States obtained an order pursuant to 18 U.S.C. § 2703(d) directing Lavabit to provide, within tendays, additional records and information abou< e-mail account. Lavabit'sownerand operator, Mr. Ladar Levison, provided very little of the information sought by the June 10, 2013 order. B. Pen-Trap Order On June 28,2013, the Honorable Theresa C. Buchanan entered an Orderpursuant to 18 U.S.C. § 3123 authorizing the install^ion anduse of pen-trap device on al! electronic communications being sent from or sentto the electronic mail account -Trap Order")- The Pen-Trap Orderauthorized the government to capture ail (i) "non-content" dialing, routing, addressing, and signaling information sent to or from and (ii) to record the date and time of the initiation and receipt of such transmissions, to record the duration of the transmissions, and to record user log-in data on the ill for a period of sixty days. Judge Buchanan further ordered Lavabit to furnish agents of the { Federal Bureau of Investigation ("FBI"), "forthwith, ail information, facilities, and technical assistance necessary to accomplish the installation and use of the pen-trap Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 6 of 27 PageID# 1090 device." Pen-Trap Order at 2. The governmentwas also ordered to "take reasonable steps to ensure that the monitoring equipment is notused to capture any" content-related information. Id. Pursuant to ISU.S.C. § 3123(d), Judge Buchanan ordered that the Pen- Trap Order and accompanying application be sealed. Id. Later on June 28,2013, two FBI Special Agents served a copy of the Pen-Trap Order on Mr. Levison. Mr. Levison informedthe FBI Special Agents that emails were encrypted as they were transmitted to and from the Lavabit server as well as when they were stored on the Lavabit server. In addition, decryption keys would be necessary to access any e-mails. Mr. Levison did not provide the keys to the Agents in that meeting. In an email to Mr. Levison on July 6, 2013, a FBI Special Agentre-affirmed the nature of the information requested in the pen-trap order. In a response on the same day, Levison claimed "we don't record this data". C. Compliance Order Mr, Levison did not comply with the Pen-Trap Order. Accordingly, in the evening of June 28, 2013, the government obtained an Order Compelling Compliance Forthwith from U.S. Magistrate Judge Theresa C, Buchanan ("Compliance Order"). The Compliance Order directed Lavabit to comply with the Pen-Trap Order and to "provide the Federal Bureau of Investigationwith unencrypted data purstxant to the Order." Lavabit was further ordered to provide "any information, facilities, or technical assistance are under the control of Lavabit [that] are needed lo provide the FBI with the unencrypted data." Compliance Order at 2. The Compliance Order indicated that failing to comply would subject Lavabit to any penalty in the power of the court, "including the possibility of criminal contempt of Court." Jd Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 7 of 27 PageID# 1091 redacted D. Order to Show Cause Mr. Levison did not comply with the Compliance Order, On July 9. 2013, this Court ordered Mr. Levison to appear on July 16, 2013, to show cause why Lavabithas failed to comply with the Pen-Trap Order and Compliance Order. The following day, on July 10,2013, the United States Attorney's Office arranged a conference call involving the United Slates Attorney's Office, the FBI, Mr. Levison and Mr. Levison's attorney at the time, Marcia Hofmann. During this call, the parties discussed implementing the pen-trap device in lightof the encryption in place on the target e-mail account. The FBI explained, and Mr, Levison appeared to agree, thatto install the pen-trap device andto obtain the unencrypted data stream necessary for the device's operation the FBI would require (i)access to Lavabit's server and (ii) encryption E. Grand Jury Subpoena On July 11, 2013, theUnited States Anomey's Office issued a grand jury subpoena for Mr. Levison to testify in fi^nt ofthe grand jury on July 16,2013. The subpoena instructed Mr. Levison to bring to the grand jury his encryption keys and any other information necessary to accomplish the installation and use of the pen-trap device pursuant to the Pen-Trap Order.' The FBI attempted to serve the subpoena on Mr. Levison at his residence. Afterknocking on his door, the FBI Special Agents wimessed Mr. Levison exit his apartment from a back door, get in his car, and drive away, Later in the evening, the FBI successfully served Mr, Levison with the subpoena. ' The grandjury subpoena was subsequently sealed on July 16,2013, Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 8 of 27 PageID# 1092 ^i) On July 13, 2013, Mr. Levison sent an e-mail to Assistant United States Attorney Andrew Peterson stating, in part: In light of the conference call on July 10th and after subsequently reviewing the requirements of the June 28th order I now believe it would be possible to capture the required data ourselves and provide it to the FBI, Specifically the information we'd collect is the login and subsequent logout date and time, the IP address used to connect to ihe subject email account and the following non-content headers (if present) from any ftiture emails sent or received using the subject account. The headers I currently plan to collect are: To, Co, From, Date, Reply-To, Sender, Received, Return-Path, Apparently-To and Alteraate-Recipient. Note that additional header fields could be captured if provided in advance of my implementation effort. S2,000 in compensation would be required to cover the cost of the development time and equipment ncccssary to implement my solution. The data would then be collected manually and provided at the conclusion of the 60 day period required by the Order. I may be able to provide the collected data intermittently during the collecdon period butonly as my schedule allows. If the FBI would like to receive the collected information more frequently I would require an additional $1,500 in compensation. The additional money would be needed to cover the costs associated with automating the log collection from different servers and uploading it to an an FBI server via "scp" on a daily basis. The money would also cover the cost ofadding the process to oiu- automated monitoring system so that I would notified automatically if any problems appeared. The e-mail again confirmed that Lavabit is capablc of providing the means for the FBI to install the pen-trap device and obtain the requested information in an unencrypted form. AUSA Peterson replied to Mr. Levison's e-mail that same day, explaining that the proposal was inadequate because, among other things, it did not provide for real-time transmission of results, and it was not clear that Mr. Levison's request for money constituted the "reasonable expenses" authorized by the statute. F. Search Warrant & 2705(b) Non-Disclosure Order On July 16,2013, this Court issueda search warrant to Lavabit for(i) "[alll information necessary to decrypt communications sent to or from the Lavabit e-mail account ' including encryption keys and SSL keys" and (ii) Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 9 of 27 PageID# 1093 ^DACTED '[a]l! infonnation necessary to decrypt data stored in or otherwise associated with the Lavabit account Pursuantto 18 U.S.C. § 2705(b), the Court ordered Lavabit to not disclose the existence of the search warrant upon determining that "there is reason to believe that notification of the existence of the ... warrant will seriously jeopardize the investigation, including by giving target an opportunity to flee or continue flight from prosecution, destroy or tamper with evidence, change patterns of behavior, ornolify confederates." July 16,2013 Order ("Non-Disclosure Order") at 1. G. Rule 49 Sealing Order The search warrant and accompanying materials were further sealed by the Court on July 16,2013, pursuant to a Local Rule 49(B) ("Rule 49 Order"). In the Rule 49 Order, the Court found that "revealing the material sought to be sealed would jeopardize an ongoing criminal investigadon." The sealing order was further justified by the Court's consideration of "available alternatives that are less drastic than sealing, and finding none would suffice to protect the government's legitimate interest in concluding the investigation; and having found that this legitimate goverrmient interest outweighs at this time any interest in the disclosure of the material." Rule 49 Order at 1. H. Show Cause Hearing At the Show Cause Hearing on July 16,2013, Mr. Levison made an oral motion to unseal the proceedings and related filings. The government objected since unsealing the proceedings would jeopardize theongoing criminal investigation The Court denied Mr. Levison's motion. Mr. Levison subsequently indicated to the Court that he would permit the FBI to place a pen-trap device on his server. The government requested that the Court further order Mr. Levison to provide his SSL keys since placing Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 10 of 27 PageID# 1094 ^Dacted a pen-trap device on Lavabit's server would only provide encrypted information that would not yield the information required under the Pen-Trap Order. The government noted that Lavabit was also required to provide the SSL keys pursuant to the search warrant and grand jury subpoena. The Court determined that the government's request for the SSL keys was premature given that Mr. Levison had offered to place the pen-trap device on his server and the Court's order for a show cause hearing was only based on the failure to comply with the Pen-Trap Order. Accordingly, the Co\m scheduled a hearing for July 26,2013, to determine whether Lavabit was in compliance with the Pen- Trap Order aftera pen-trap device was installed. I. Motion to Unseal and Lift Non-Disclosure Order On July 25,2013, Mr. Levison filed two motions—a Motion for Unsealing of Sealed Court Records ("Motion toUnseal") and a Motion to Quash Subpoena and Search Warrant ("Motion to Quash"). Inthe motions, Mr. Levison confirms that providing the SSL keys to the government would provide the data required under the Pen-Trap Order in an unencrypted form. Nevertheless, he refuses to provide the SSL keys. In order to provide the government with sufficient time to respond, the hearing was rescheduled for August 1, 2013. On a later date, and after discussions widi Mr. Levison, the FBI installed a pen- trap device on Lavabit's Internet service provider, which would capture the same information as if a pen-trap device was installed on Lavabit's server. Based on the government's ongoing invesdgation, it is clear that due to Lavabit's encryption services the pen-trap device is failing to capture data related to all of the e-mails sentto and from the account as well as other information required under the Pen-Trap Order. During Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 11 of 27 PageID# 1095 ^Dacted Lavabit's over one month of noncompHance with this Court's Pen-Trap Order, ARGXJMENT I. THE SEARCH WARRANT AND THE GRAND JURY SUBPOENA ARE LAWUL AND REQUIRE LAVABIT TO PRODUCE THE SSL KEYS A. The search warrant and grandjury subpoena are valid because they merely re-state Lavabit's pre-existing legal duly, imposed by the Pen-Trap Order, to produce information necessary to accomplish installation ofthe pen-trap device. The motion of Lavabit and Mr. Levison (collectively "Lavabit") to quash both the grandjury subpoena and the searchwarrant should be deniedbecause the subpoena and warrant merely re-state and clarify Lavabit's obligation under the Pen-Trap Act to provide that same information. In total, four separate legal obligations currently compel Lavabit to produce the SSL keys; 1. The Pen-Trap Order pursuant to the Pen Register and Trap and Trace Device Act (18 U.S.C. §§ 3121-27); 2. The Compliance Order compelling compliance forthwith with the PenTrap Order; 3. The July 16,2013, grandjury subpoena; and 4. The July 16,2013, search warrant, issued by this Court under the Electronic Communications Privacy Act ("ECPA"). The Pen-Trap Act authorizes courts to order providers such as Lavabit to disclose "information" that is "necessary" to accomplish the implementation or use of a pen-trap. See 18 U.S.C. §§ 3123(b)(2); 3124(a); 3124(b). Judge Buchanan, acting under that authority, specifically required in the Pen-Trap Order that: "IT IS FURTHER Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 12 of 27 PageID# 1096 redacted ORDERED, pursuant to 18 U.S.C. § 3123Cb)(2), that Lavabit shall ftimish agents from the Federal Bureau of Investigation, forthwith, all information, facilities, and technical assistance necessary to accomplish the installation and use of the pen/trap device unobtrusively and with minimum interference." Pen-Trap Order at 2. In this case, the SSL keys are "information... necessary to accomplish the installation and use of the [pen-trap]" because al! other options for installing the pen-trap have failed. In a typical case, a provider is capable of implementing a pen-trap by using its own software or device, or by using a technical solution provided by the investigating agency; when such a solution is possible, a provider need not disclose itskey. E.g., Inre Application ofthe U.S. for an Order Authorizing the Use ofa Pen Register and Trap On [XXX] Internet Serv, Account/User Name fxxxxxxxx@xxx.com]. 396 F. Supp. 2d 45,49 (D. Mass. 2005) (suggesting language in a pen-trap order "to impose upon the internet service providers the necessity ofmaking sure that they configure their softw^ insuch a manner as to disclose only that which hasbeen authorized")- In this case, given Lavabit's use of SSL encryption and Lavabit's lack of a software solution to implement the pen-trap on behalf the government, neither thegovernment nor Mr. Levison have been able to identify such a solution. Because the search warrant and grand jury subpoena require nothing thatthe Pen- Trap Act does not already require, they are not unreasonably burdensome. Moreover, a court's constitutional authority to require a telecommunications provider to assist the government in implementing a pen-trap device is well-established. See United States v. New York Tel. Co.. 434 U.S. 159, 168-69 (1977) (in apre-Pen-Trap Act cas6, holding that district court had the authority Co order a phone company to assist in the installation of a Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 13 of 27 PageID# 1097 redacted pen-trap, and "no claim is made that it was in any way inconsistent with the Fourth Amendmenl."). B. Lavabii's motion to quash the search •warrant must he denied because there is no statutory authorityfor such motions, and the search warrant is lawful in any event. 1. Lavabit lacks authority to move to suppress a search warrant. Lavabit lacks authority to ask this Court to "quash" a search warrant before it is executed. The search warrant was issued under Title II of ECPA, 18 U.S.C. §§ 2701- 2712. ECPA allows providers such as Lavabit to move to quash court orders, but does notcreate an equivalent procedure to move to quash search warrants. 18 U.S.C. § 2703(d). The lack of a corresponding motion to quash or modify a search warrant means that there is no statutory authority for such motions. See 18 U.S.C. § 2708 ("[t]he remedies and sanctions described in this chapterare the only judicial remedies and sanctions for nonconstitutional violations of this chapter."); cf In re Application ofthe U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp, 2d 114,128-29 (E.D. Va. 2011) (holding that the lack ofa specific provision in ECPA permitting users to move 10 quash court orders requires 'the Court [to] infer that Congress deliberately declined to permit [such] challenges."). 2. The search warrant complies with the Fourth Amendment and is not general. The Fourth Amendment requires that a search warrant "particularly describe[e] the place to be searched, and the persons or things to be seized." U.S. Const. Am. IV. This "particularity requirement is ftilfilled when the warrant identifies the items to be seized by their relation to designated crimes and when the description of the itemsleaves Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 14 of 27 PageID# 1098 redacted nothing to the discretion of the officer executing the warrant." United Stales v. fViUiams, 592 F.3d5n,519(4th Cir. 2010). The July 16,2013, search warrant's specification easily meets this standard, and therefore is not impermissibiy general. It calls for only: a. All information necessary to decrypt communications sent to or from the Lavabit e-mail account including encryption keys and SSL keys; b. All information necessary to decrypt data stored in or otherwise associated with the Lavabit account That specification leaves nothing to discretion; it calls for encryption and SSLkeys and nothing else. Acknowledging this specificity, Lavabit nonetheless argues that the warrant "operates as a general warrant by giving the Government access to every Lavabit user's communications and data." Mot. to Quash at 3. To the contrary, the warrant does not grant the goverrmient the legal authority to access any Lavabit user's communications or data. After Lavabit produces its keys to the government, Federal statutes, such as the Wiretap Act and the Pen-Trap Act, will continue to limit sharply the government's authority to collect any data on any Lavabit user—except for the one Lavabit user whose account is currently the subject of the Pen-Trap Order. See 18 U.S.C. § 2511(1) (punishing as a felony the unauthorized interception of communications); § 3121 (criminalizing the use of pen-trap devices without a court order). It cannot be that a search warrant is "general"merely because it gives the government a tool that, if abused conirary lo law, could constitute a general search. Compelling the owner of an apartment building to unlock the building's front door so that agents can search one apartment is not Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 15 of 27 PageID# 1099 redacted a "general search" of the entire apartment building—even if the building owner imagines that undisciplined agents will illegally kick down the doors to apartments not described in the warrant. C, Lcrvabit's motion to quash the subpoena must be denied because compliance would not be unreasonable or oppressive A grand jury subpoena "may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates," but the court "may quash or modify the subpoena if compliance would be unreasonable or oppressive." Fed. R. Crira. P. 17(c)Cl) &(2); seeIn re GrandJury, John Doe No. G.J.2005-2. 478 F.3d 581, 585 (4th Cir. 2007) (recognizing courts may quash subpoenas that are "abusive or harassing").^ Lavabit argues the subpoena should be quashed because it "grant[s] the Government unlimited access to every one of its user's accounts." Mot, to Quash at 7. As explained above, the subpoena does no such thing: It merely reaffirms Lavabit's existing obligation to provide information necessary to implement this Court's Pen-Trap Order on a single Lavabit customer's e-mail account. The Pen-Trap Order further restricts the government's access by preventing the government from collecting the content of that Lavabit customer's e-mail communications. Lavabit also argues that it will lose customers' trust and business if it they learn that Lavabit provided the SSL keys to the government. But Lavabit finds itself in the position ofhaving to produce those keys only because, more than a month after the PenTrap Order. Lavabit has failed to assist the government to implement the pen-trap device. ' Lavobil dies 18 U.S.C. § 2703(d) as authority for its motion toquash, but that section by its terms only permits motions toquash court orders issued under that same section. Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 16 of 27 PageID# 1100 Any resulting loss of customer "trust" is not an "unreasonable" burden if Lavabit's customers trusted that Lavabit would refuse to comply with lawful court ordere. AH providersare statutorily required to assist the government in the implementation of pentraps, see 18 U.S.C. § 3124(a), (b), and requiring providers to comply with that statute is neither "unreasonable" nor "oppressive." In any event, Lavabit's privacy policy tells its customers that "Lavabit will not release any information related to an individual user unless legally compelled to do so." See http://lavabit.com/privacv policv.htmJ (emphasis added). I Finally, once court-ordered surveillance is comple'tc, Lavabit will be free to change its SSLkeys. Vendors sell new SSL certificates for approximately SI00. See, e.g.. GoDaddy LLC, SSLCertificates, https://www.godaddv.com/ssl/ssl-ccrtificates.aspx. Moreover, Lavabit is entitled to compensation "for such reasonable expenses incurredin providing" assistance in implementing a pen-trap device. 18 U.S.C. § 3124(c). IL THE NON-DISCLOSUUE ORDER IS CONSISTENT WITH THE FIRST AMENDMENT BECAUSE IT IS NARROWLY TAILORED TO SERVE WHAT ALL PARTIES AGREE IS A COMPELLING GOVERNMENT INTEREST Lavabit has asked the Court to unseal all of the records scaled by this Court's Order to Seal, and to lift the Court's Order dated July 16, 2013, directing Lavabit not to disclose the existence of the search warrant the Court signed that day (''Non-Disclosure Order"). Motion forUnsealing of Sealed Court Records and Removal of NonDisclosure Order ("Mot. to Unseal") at 1-2. Lavabit, however, has not identified (and cannot) any compelling reason sufficient to overcomewhat even Lavabit concedes is the government's compelling interest in maintaining the secrecy and integrity of its active investigation of Moreover, the restrictions are narrowly tailored to restrict Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 17 of 27 PageID# 1101 REDACTED Lavabit from discussing only a limiTed set of information disclosed to them as part of this investigation. Because there is no reason to jeopardize the criminal investigation, this motion must be denied. A. Tie Non-Disclosure Order survives even strict scrutiny revievj by imposing necessary but limited secrecy obligations on Lavabit The United States does not concede that strict scrutiny must be applied in reviewing the Non-Disclosure Order. There is no need to decide this issue, however, because the Non-Disclosure Order is narrowly tailored to advice a compelling government interest, and therefore easily satisfiesstrict scrutiny. The Government has a compelling interest in protecting the integrity of on-going criminal investigations. Virginia Dep't ofState Police v. Wash. Post,3S6?.3d567,579 (4th Cir. 2004) ("We note initially our complete agreement with the genera! principle that a compelling governmental interest exists in protecting the integrity of an ongoing law enforcement investigation");Branzburg v. Hayes, 408 U.S. 665, 700 (1972) ("requirements ... that a State's interest must be 'compelling'- ...are also methere. As we have indicated, the investigation of crime by the grand jury implements a fundamental governmental role of securing the safety of the person and property of the citizen ...."). Indeed, it is "obvio\;s and unarguable that no government interest is more compelling than the security of the Nation." Haigv. Agee, 453 U.S. 280, 307 (1981) (internal quotation marks omitted); see also Dep't ofthe Navy v. Egan, 484 U.S. 518,527 (1988) ("This Court has recognized the Government's 'compelling interest' in withholding national security information from unauthorized persons in the course of executive business")- Likevrise, here, the United States clearly has a compelling interest in ensuring that the target of lawftil surveillance is not aware that he is being monitored. Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 18 of 27 PageID# 1102 redacted UniiedSlates v. Aguilar, 515 U.S. 593, 606 (1995) (holding that a statute prohibiting disclosure of a wiretap was permissible under the First Amendment, in part because "[w]e think the Government's interest is quite sufficientto justify the construction of the statute as written, without any artificial narrowing because of First Amendment concerns"). As the Non-Disclosure Order makes clear, publicizing "the existence of the [search] warrant will seriously jeopardize the investigation, including by giving targets an opportunity to flee or continue flight from prosecution, destroy or tamper v/ith evidence, change patterns of behavior, or notify confederates." Lavabit acknowledges that "the government has a compelling interest in maintaining the integrity of its criminal investigation \ Mot. to Unseal at 4; id. at 6 ("the government has a legitimate interest in tracking'' account); id. at 8 ("the secrecy of [Stored Communications Act] investigations is a compelling government interest"). In spite ofthis recognition, Lavabit states it intends to disclose the search warrant and order should the Court grant the Motion to Unseal. Id. at 5("Mr. Levinson needs some ability to voice his concerns [and] gamer support for his cause"); id. at 6. Disclosure ofelectronic surveillance process before [he electronic surveillance hasfinished, would beunprecedented and defeat thevery purpose of the surveillance. Such disclosure would ensure that would learn of the monitoring o along with the public, e-mail account and take action to frustrate the legitimate monitoring of that account. The Non-Disclosure Order is narrowly tailored to serve the government's compelling interest of protecting the integrity of its investigation. The scope of information that Lavabit may not disclose could hardly be more narrowly drawn: "the Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 19 of 27 PageID# 1103 redacted existence of the attached search warrant" and the Non-Disclosure Order itself Restrictions on a party's disclosure of information obtained through participation in confidential proceedings stand on a different andfirmer constitutional footing from restrictions on the disclosure of information obtained by independent means. Seattle Times Co. v. Rhinehart, 467 U.S. 20,33 (1984) (order prohibiting disclosure of information learned throughjudicial proceeding "is not the kind of classic prior restraint thatrequires exacting First Amendment scrutiny"); Butterworth v, Smith, 494 U.S. 624, 632 (1990) (distinguishing between a witness' "right to divulge information of which he was in possession before he testified before the grand jury" with "information which he may have obtained as aresult ofhis participation in the proceedings ofthe grand jury"); see also Hofiman-Pugh V. Keenan, 338 F.3d 1136,1140(10thCir. 2003) (finding prohibition on disclosing information leamed through grand jury process, as opposed to information person already knew, docs not violate First Amendment). In Rhinehart, the Court found that "control over [disclosure of] the discovered information does not raise the same specter ofgovernment censorship that such control might suggest in other situations." 467 U.S. at 32. Further, the Non-Disclosure Order is temporary. The nondisclosure obligation will last only so long as necessary to protect the government's ongoing investigation. B. The Order neitherforecloses discussion ofan "entire topic" nor constitutes an unconstitutional prior restraint onspeech The limitation imposed here does not close offfrom discussion an"entire topic," as articulated in Consolidated Edison. Mot. to Unseal at 4. At issue in that casewasthe constitutionality ofa state commission's order prohibiting a regulated utility from including inserts in monthly bills that discussed any controversial issue ofpublic policy, Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 20 of 27 PageID# 1104 REDACTED such as nuclear power. Consolidated Edison Co. ofNew York v. Pub. Serv. Comm 'n of New York, 447 U.S. 530, 532 (1980). The Non-Disclosure Order, by contrast, precludes a single individual, Mr. Levison, from discussing a narrow set of information he did not know before this proceeding commenced, in order to protect the integrity of anongoing criminal investigation. Cf. Doe v. Mukasey, 549 F.3d 861, 876 (2d Cir. 2009) ("although the nondisclosure requirement is triggered by the content of a category of information, that category, consisting of the fact of receipt of [a National Security Letter] and some related details, is far more limited than the broad categories of information that have been at issue with respect to typical content-based restrictions."). Mr. Levison may still discuss everything he could discuss before the Non-Disclosure Order was issued. Lavabit's argument that the Non-Disclosure Order, and by extension all § 2705(b) orders, are unconstitutional prior restraints is likewise unavailing. Mot, To Unseal at 5-6. As argued above, the Non-Disclosure Order is nanowly tailored to serve compelling government interests, and satisfies strict scrutiny. See supra, PartII.A, Regardless, the Non-Disclosure Order does not fit within the two general categories of prior restraint that can run afoul of the First Amendment: licensing regimes in which an individual's right to speak is conditioned upon prior approval from thegoverrunent, see Ciiy ofLakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757 (1988), and injunctions restraining certain speechand related activities, suchas publishing defamatory or scandalous articles, showing obscene movies, and distributing leaflets,see Alexander v. United States, 509 U.S. 544, 550 (1993). A prior restraint denies a person the ability to express viewpoints or ideas they could have possessed without any government involvement. Section 2705(b) orders, by contrast, restrict a recipient's ability to disclose limited Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 21 of 27 PageID# 1105 REDACTED information that the recipient only learned from the government's need to effectuatea legitimate, judicially sanctioned form of monitoring. Such a narrow limitation on information acquired only by virtue of an official investigation does not raise the same concerns as other injunctions on speech, Cf. Rhineharl, 467 U.S. at 32, Doe v. Mukasey, 549 F.3d at 877 ("[t]he non-disclosure requirement" imposed by the national security letter statute "is not a typical prior restraint or a typical content-based restriction warranting the most rigorous First Amendment scrutiny"). m. NO VALID BASIS EXISTS TO UNSEAL DOCUIVIENTS THAT, IF MADE PUBLIC PRE-MATURELY, WOULD JEOPARDIZE AN ON-GOING CRIMINAL INVESTIGATION A. Any common law right ofaccess is outweighed by the need to protect the integrity ofthe investigation. Lavabit asserts that the common law right of access necessitates reversing this Court's decision to seal the search warrant and supporting doctaments. Mot. to Unseal at 7-10. The presumption of public access to judicial records, however, is "qualified," Bait. Sm Co. v. Goetz, 886 F.2d60, 65 (4th Cir. 1989), and rebuttable upon a showing that the "public's right of access is outweighed by competing interests," In re Application ofthe U.S. for an Order Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d 283,290 (4th Cir. 2013) (^'Twitter"). In addition to considering substantive interests, a judge must also consider procedural alternatives to sealing judicial records. Twitter, 707 F.3d at 294. "Adherence to this procedure serves to ensure that the decision to seal materials will not be made iightly and that it will be subject to meaningful appellate review." Va. Dep'/ of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004). This standard is met easily Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 22 of 27 PageID# 1106 redacted "[Tjhe common law does not afford as much substantive protection to the Interests of the press and the public as does the First Amendment." Twitter, 707 F.3d at 290 (internal quotation marks omitted). With respect to the substantive equities at stake, the United States' interest in maintaining the secrecy of a criminal investigation to prevent the target of the surveillance from being alerted and altering behavior to thwart the surveillance clearly outweighs any public interest in learning about specific actsof surveillance. Id at 294 (rejecting common law right of access because, inter alia, the sealed documents "set forth sensitive non-public facts, including the identity of targets and witnesses in an ongoing criminal investigation"). "Because secrecy is necessary for the proper functioning ofthe criminal investigation" prior to indictment, "openness will frustrate the government's operations." Id. at292. Lavabit concedes that ensuring "the secrecy of [Stored Communications Act] investigations," like this, "is a compelling government interest." Mot. to Unsea! at 8(emphasis added). Lavabit does not, however, identify any compelling interests to the contrary. Far from presenting "a seriously concerning expansion of grand j\u7 subpoena power," asLavabit's contents, id., ajudge issued the Pen-Trap Order, which did not authorize monitoring of any Lavabit e-mail account other tha In addition, the Court satisfied the procedural prong. It "considered the available alternatives that are less drastic than sealing, and [fotmd] none would suffice to protect the government's legitimate interest in concluding the investigation." Rule 49 Order. The Fourth Circuit's decision in Twitter is instructive. That case arose from the Wikileaks investigation of Army Pfc. Bradley Manning. Specifically, the govemmeni obtained an order pursuant to 18 U.S.C. § 2703(d) directing Twitter to disclose electronic Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 23 of 27 PageID# 1107 redacted communications and account and usage information pertaining to tliree subscribers. When apprised of this, the subscribers asserted that a common law right of access required unsealing records related to the § 2703(d) order. The Fourth Circuit rejected this claim, finding that the public's interest in the Wikileaks investigation and the government's electronic surveillance of internet activities did not outweigh ''the Government's interests in maintaining the secrecy of its investigation, preventing potential suspects from being tipped off, or altering behavior to thwart the Government's ongoing investigation." 707 F.3d at 293. "Themere fact that a case is high profile in nature," the Fourth Circuit observed, "does notnecessarily justifypublic access." Id. at 294. Though Twitter involved a § 2703(d) order, rather than a § 2705(b) order, theCourt indicated this is a distinction without a difference. Id. at 294 (acknowledging that the concerns about unsealing records "accord" with § 2705(b)). Given the similarities between Twiiterand the instant case—most notably the compelling need to protect otherwise confidential information fi-om public disclosure and the national attention to the matter—there is no compelling rationale currently before the Court necessitating finding that a common lawright of access exists here. B. Courts have inherent authority to seal ECPA process Lavabit asserts that this Court must unseal the Non-Disclosure Order because 18 U.S.C. § 2705(b) does not explicitly reference thesealing ofnon-disclosure orders issued pursuant to that section. Mot. to Unseal at9-10. As an initial matter, the Court has inherent authority to seal documents before it. In re Knight Pub. Co., 743 F.2d 231,235 (4th Cir. 1984) ("[t]he trial court has supervisory power over its own records and may, in its discretion, seal documents if the public's right of access is outweighed by competing Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 24 of 27 PageID# 1108 redacted interests"); see also Media General Operations, Inc. v. Buchanan, 417 F3d. 424, 430 (4th Cir. 2005); UnitedStates v. U.S. Dist. Court, 407 U.S. 297, 321 (1972) ("a warrant application involves no public or adversary proceedings: it is an ex parte request before a magistrate or judge."). In addition, the Courthere exercised its ^thority to seal pursuant to Local Rule 49(B), the validity of which Lavabit does not contest. Even if the Court did not have this authority, Lavabit's reading of § 2705(b) must be rejected, because it would gut the essential function of non-disclosure orders and thereby disregard Congress' clearintent in passing § 2705. The Section allows courts to delay notification pursuant to § 2705(a) or issue a non-disclosure order pursuant to § 2705(b) upon finding that disclosure would risk enumerated harms, namely danger to a person's life or safety, flight from prosecution, destruction ofevidence, intimidation of witnesses, or seriously jeopardizing an investigation. 18 U.S.C. §§ 2705(a)(2)(A)-(E), (b)(I)-(5). It would make no sense for Congress to purposefully authorize courts to limit disclosure of sensitive information while simultaneously intending to allow the same information to be publicly accessible in an unsealed court document. Finally, the implications Lavabit attempts to draw from the mandatory sealing requirements of 18 U.S.C. §§ 2518(8)(b) and 3123(a)(3)(B) are mistaken. While Lavabit characterizes those statutes as granting courts the authority to seal Wiretap Act and pen- trap orders, courts already had that authority. Those statutes have another effect: they removed discretion from courts by requiring that courts seal Wiretap Act orders and pen- trap orders. See 18 U.S.C. § 2518(8)(b) ("Applications made and orders granted under this chapter be sealed by the]ndg^") (emphasis added); id § 3123(a)(3)(B) ("The record maintained under subparagraph (A) shall be provided ex parte and under seal to Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 25 of 27 PageID# 1109 redacted the court") (emphasis added). Congress' decision to leave that discretion in place in other situations does not mean that Congress believed that only Wiretap Act and pen-trap orders may be sealed. C. Supposedprivacy concerns do not compela common law right ofaccess to the sealed documents. Lavabit's brief ends with an argxmient that privacy interests require a common taw rightof access. Mot. to Unseal at 10-11. Lavabit, however, offers no legal basis for this Court to adopt such a novel argument, nordo the putative policy considerations Lavabit references outweigh the government's compelling interest in preserving the secrecy ofitsongoing criminal investigation. Indeed, the most compelling interest currently before the Court is ensuring that the Court's orders requiring that Mr. Levison and Lavabit comply with legitimate monitoring be implemented forthwith and without additional delay, evasion, or resistance by Mr. Levison and Lavabit. Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 26 of 27 PageID# 1110 redacted CONCLUSION For the foregoing reasons, Lavabit's motions should be denied. Furthermore, the Court should enforce the Pen-Tr^ Order, Compliance Order, search warrant, and grand jury subpoena by imposing sanctions until Lavabit complies. Respectfully Submitted, NEIL H. MACBRJDE United Attorney Andrew Peterson Assistant United States Attorney United States Attorney's Office 2100 Jamieson Ave. Alexandria, VA 22314 Andy.peterson@usdoj.gov 703-299-3700 Case 1:13-sw-00522-CMH Document 36-40 Filed 02/24/16 Page 27 of 27 PageID# 1111 redacted CERTIFICATE OF SERVICE. I hereby certify that on July 31,2013,1 e-mailed a copy of the foregoing document to Lavabit's Counsel of Record: Jesse R. Binnall Bronley & Binnall, PLLC 10387 Main Street, Suite 201 Fairfax, VA 22030 jbinnall@bbllawonline.com Andrew Peterson Assistant United States Attorney United States Attorney's Office 2100 Jamieson Ave. Alexandria, VA 22314 Andy.peterson@usdoj.gov 703-299-3700 rage i oid *_ivi/c,v.,r - vacu Case 1:13-sw-00522-CMH Document 36-41 Filed 02/24/16 Page 1 of 5 PageID# 1112 U.S. District Court Eastern District of Virginia - (Alexandria) CRIMINAL DOCKET FOR CASE #: l:13-sw-00522-CMH-l ^SEALED* Internal Use Only Case title: USA v. In Re: Information Associated with Date Filed: 07/16/2013 Date Terminated: 03/24/2015 Assigned to: District Judge Claude M. Hilton Appeals court case number: 13-4625 Defendant (1) Id Re: Information Associated with TERMINATED: 02/24/2015 Pending Counts Disposition None Highest Offense Level (Qpenint None Terminated Counts Disposition None Highest Offense Level (Terminated) None Complaints Disposition None Interested Par Ladar Levinson TERMINATED: 03/24/2015 doing business as Lavabit LLC TERMINATED: 03/24/2015 represented by Jesse R. Binnall Harvey & Binnall PLLC 717 King Street Suite 300 Alexandria, VA 22314 703-888-1943 Fax: 703-888-1930 https://ecf.vaed.circ4.dcn/cgi-bin/DktRpt.pl7ll4312601732449-L_l_0-l 01/12/2016 Page 2 of 5 CM/ECF - vaed Case 1:13-sw-00522-CMH Document 36-41 Filed 02/24/16 Page 2 of 5 PageID# 1113 redacted Email; jbinnall@harveybinnall.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained Plaintiff represented by James L. Trump United States Attomey's Office 2100 Jamieson Ave Alexandria, VA 22314 (703)299-3700 Emaihjim.trump@usdoj.gov LEAD ATTORNEY A TTORNEY TO BE NOTICED Michael Ben'Ary US Attomey's Office (Alexandria-NA) 2100 Jamieson Avenue Alexandria, VA 22314 ♦*NA** 703-299-3700 Email; michael.ben'ary2@usdoj.gov LEAD ATTORNEY A TTORNEY TO BE NOTICED Date Filed 07/16/2013 Docket Text i Application and AftldaviHoi^^earcl^'^ant as to In Re: Information Associated \vithHH HH^H ^^HSigned by District Judge »ed: 08/16^013) 08/16/2013) Claude M. Hiltoi^rw/lo/li^Krob^KUered: 07/16/2013 Search Warrant Issued in case as to In Re; Information Associated with ) (Entered; 08/16/2013) 07/16/2013 MOTION to Seal Case by USA as to In Re; Information Associated with (krob,) (Entered; 08/16/2013) 07/16/2013 ORDER granting 3 Motion to Seal Case as to In Re: Information Associated with Signed by District Judge Claude M. Hilton on 7/16/13. (krob,) (Entered; 08/16/2013) 07/16/2013 APPLICATION for Order Comnianding Lavabit not to Notify any Person of the Existence of SWby USA as to In Re; Information Associated with ) Modified on 8/16/2013 (krob,). (Entered; 08/16/2013) 07/16/2013 ORDER granting 5 APPLICATION for Order Commanding Lavabit not to Notify any Person of the Existence of SW by USA as to In Re: https;//ecf.vaed.circ4.dcn/cgi-bin/DktRpt.pl?l 14312601732449-L_l_0-l Page 3 of 5 CM/ECF - vaed Case 1:13-sw-00522-CMH Document 36-41 Filed 02/24/16 Page 3 of 5 PageID# 1114 REDACTED Infonnation Associated with Signed by District Judge Claude M. Hilton on 7/16/13, (krob,) (Entered: 08/16/2013) 07/25/2013 7 WAIVER of Personal Appearance by Ladar Levinson as to In Re: Information Associated with^^^^^^^^^^^^^H(krob,) (Entered: 08/16/2013) 07/25/2013 8 MOTION to Unseal the court records concerning the United States govenunent's attempt to obtain certain encryption keys and lift the nondisclosure order issued to Mr. Levinson by In Re: Infonnation Associated with^^^^^^^^^^^^H(krob,) (Entered: 08/16/2013) 07/25/2013 9 MOTION to Qnasj^ubpoem^n^earc^Varrant by In Re: Infonnation Associated 08/16/2013) 08/01/2013 (krob,) (Entered: ORDER denying 8 Motion to Unseal Case as to In Re: Information Associated denying 9 Motion to Ouasj^^^r^e^Infonna^^ Associated with 1). Signed by District Judge Claude M. Hmoi^in/lTTj^Krob^Entered: 08/16/2013) 08/01/2013 Minute Entry: for proceedings held before District Judge Claude M. Hilton: Motion Hearing as to In Re: Information Associated with ^miB^imiUPield on 8/1/2013. Lavabit's Motion to Quash Denied, Mr. Levison Ordered to turn over the encryption keys. Respondent's request for 5 days to do so Denied, Respondant given 24 hours. Lavabit's Motion to Unseal - Denied. (Court Reporter: Westfall) (tarm). (Entered: 08/16/2013) 08/05/2013 MOTION for Sanctions by USA as to In Re: Information Associated with (krob,) (Entered: 08/16/2013) 08/05/2013 ORDER granting 12 Motion for Sanctions; It is further ORDERED that, if the encryption keys necessary to implement the pen register and trap and trace device are not provided to the FBI in PEM or equivalent electronic format by noon (CDT) on August 5,2013, a fine of five thousand dollars ($5,000.00) shall be imposed on Lavabit LLC and Mr. Levison;and It is further ORDERED that, if the encryption keys necessary to implement the pen register and trap and trace device are not provided to the FBI in PEM or equivalent electronic format by noon (CDT) each day thereafter beginning August 6,2013, a fine of five thousand dollars ($5,000.00) shall be imposed on Lavabit LLC and Mr. Levison for each day of non- comDlianc^^^i^e^nformation Associated with m ^^^^^ (l). Signed by District Judge Claude M. Hilton on 8/5/13. (krob,) (Entered: 08/16/2013) 08/15/2013 NOTICE OF APPEAL by Ladar Levinson as to In Re: Information Associated with II Order on Motion for Sanctions 10 Order on Motion to Unseal Case and Order on Motion to https://ecfvaed.circ4.dcn/cgi-bin/DktRpt.pl7114312601732449-L_l_0-l Page 4 of 5 Case 1:13-sw-00522-CMH Document 36-41 Filed 02/24/16 Page 4 of 5 PageID# 1115 CM/ECF - vaed redacted Quash. Filing fee $ 455. (Attachments: # i Receipt)(krob,) (Main Document 14 replaced on 8/16/2013) (krob, ). (Entered: 08/16/2013) 08/16/2013 15 Transmission of Notice of Appeal to 4CCA as to In Re: Information Notice of Appeal, (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (krob,) (Entered: 08/16/2013) 08/21/2013 16 UNDER SEAL Transcript of Proceedings from 8/1/2013 before District Judge Claude M. Hilton, (rban,) (Entered: 08/21/2013) 08/29/2013 11 USCA Case Number 13-4625. Case Manager; RJ Warren for 14 Notice of Appeal filed by Ladar Levinson. (krob,) (Entered: 08/29/2013) ORDER of USCA (certified copy) consolidating Case No. 13-4625 and Case No. 13-4626. Entry of appearance forms and disclosure statements filed by counsel and parties to the lead case are deemed filed in the secondary case as to In Re: Information Associated with 08/29/2013 ^^••i^^^^H(krob,) (Entered: 08/29/2013) UNDER SEAL EX PARTE MOTION by USA as to In Re: Information 09/20/2013 Associated with mm^^^^^^^ (Attachments; # 1. Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5,U6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # iO Exhibit 10, # U. Exhibit 11,# 12 Exhibit 12,# 13 Exhibit 13, # H Exhibit 14, # 15 Exhibit 15,#i6 Exhibit 16, # 12 Exhibit 17, # 18 Exhibit 18, # 12 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # ^Exhibit 26)(rban,) (Entered: 10/02/2013) 10/02/2013 Sealed Order re 19 UNDER SEAL EX PARTE MOTION by USA as to In Re: Information Associated with Signed by District Judge Claude M. Hilton on 10/2/2013. (Attachments: # l_ Exhibit I, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, ^ H Exhibit II, #12 Exhibit 12, ^ H Exhibit 13, #J4 Exhibit 14, # 15 Exhibit 15,# 16 Exhibit 16, # 17 Exhibit 17.# 18 Exhibit 18, # 19 Exhibit 19. # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23) (rban,) (Entered: 10/02/2013) 10/02/2013 Redacted version of M Sealed Order, (rban,) (Entered: 10/02/2013) 10/02/2013 (Cour^nly^**Motion^ei^^ as to In Re: Information Associated 19 MOTION filed by USA. (rban,) (Entered: 10/02/2013) PUBLISHED OPINION of the USCA, decided 4/16/2014, re 14 Notice of Appeal as to H Order on Motion for Sanctions and 10 Order on Motion to Unseal Case and Order on Motion to Quash, Affirmed, (rban,) (Entered: 04/16/2014) 04/16/2014 04/16/2014 23 JUDGMENT of the USCA re 14 Notice of Appeal. In accordance with the https://ecf.vaed.circ4.dcn/cgi-bin/DktRpt.pl7114312601732449-L_l_0-l 01/12/2016 Page 5 of 5 CM/ECF - vaed Case 1:13-sw-00522-CMH Document 36-41 Filed 02/24/16 Page 5 of 5 PageID# 1116 redacted decision of this court, the judgment of the district court is affirmed. This judgment shall take effect upon issuance of this court's mandate in accordance with FRAP 41. (rban,) (Entered: 04/16/2014) 05/08/2014 24 USCA Mandate re ^4 Notice of Appeal. The judgment of this court, entered April 16, 2014, takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure, (nhall) (Entered: 05/12/2014) (Cou^onlyV***TemTii^^ 03/24/2015 In Re: Information Associated with Ladar Levinson, pending deadlines, and motions, (rban,) (Entered: 03/24/2015) 12/14/2015 -I 25 MOTION to Unseal Case by LavabiLLL^n^lrLada^e^son as to In Re: Information Associated (Entered: 12/15/2015) 12/16/2015 26 (krob,) ORDER to Respond re 25 MOTION to Unseal Case filed by Ladar Levinson. ORDERED that the Government shall have until January 6, 2016 to file a response to the Movants' Motion as to In Re: Infonnation Associated withHH H by District Judge Claude M. Hiltor^02/lD/20o^c/s)(lD^ ) Modified on 12/17/2015 (Ibru,). (Entered: 12/17/2015) 01/07/2016 27 R^pl^^lotioi^^US^^ to In Re: Information Associated with Hjjjjjl^llljj^^ 25 MOTION to Unseal Case (krob,) (Entered: 01/07/2016) 01/07/2016 28 Protective Order as to In Re: Information Associated with IlllHllllimilll^^^ Signed by District Judge Claude M. Hilton on 1/7/16. (c/s) (krob,) (Entered: 01/07/2016) https://ecfvaed.circ4.dcn/cgi-bin/DktRpt.pl?! 14312601732449-L_1_0-1 01/12/2016