Lavabit defies FBI order, stands up to national security state

The malign influence of the overblown security state is now spilling over to legitimate businesses and their innocent customers. Photo: AP

WASHINGTON, August 12, 2013 — We would all like our online communications to be secure. There’s a substantial market for secure, encrypted email services, mostly composed of legitimate business users. Up until Thursday, Texas-based Lavabit LLC had provided those services to almost 400,000 users for a decade. One of those users was Edward Snowden.

On Thursday, the FBI served Lavabit with an order demanding access to Snowden’s secure email account, presumably with a National Security Letter authorized under the USA PATRIOT Act. The National Security Letters are one of the most controversial aspects of the act, essentially blanket search warrants requiring little probable cause. They give law enforcement such broad powers that the threat of their use has bullied many Internet Service Providers into preemptively taking websites offline and turning over private emails to avoid further consequences. Some may have even cooperated by installing government spyware on their systems, allowing the NSA to monitor all of their customers’ private online communications.

SEE RELATED: NSA spying illegal, even under the unconstitutional Patriot Act

When faced with this threat, Lavabit’s owner, Ladar Levison, did not comply and denied the government the access they demanded. Placing his guarantee of security for his customers as his highest priority, he chose to shut down his entire company rather than turn over any emails. In a strongly worded statement which is now the only thing on Lavabit’s website, Levison wrote:

“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 of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations.”

He also reveals that he has been placed under a gagged order forbidding him from even talking about the action taken against him by the government, a power provided to accompany the use of National Security Letters and a clear violation of the First Amendment to the Constitution. He is apparently pursuing a legal response with the Fourth Circuit Court of Appeals. He closes with a powerful indictment of the United States government:

“This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would strongly recommend against anyone trusting their private data to a company with physical ties to the United States.”

SEE RELATED: The NSA: True lies in the national security state

Others are listening to Levison’s warning. The following day, Silent Circle, another secure online communication company, shut down its encrypted email service in anticipation of similar government persecution. It seems likely that this is just the beginning of a trend which will see this entire industry seeking offshore havens where they can safely provide the security which their customers demand. Most of these customers are technology companies, not spies or criminals. They want protection from industrial espionage in an era of increased cyber-spying from many sources.

The situation with Lavabit adds a new dimension to the Edward Snowden story. It offers us Ladar Levison as a hero and a champion for civil liberties against the out of control growth of the security state. It also reminds us that the victims of the degradation of our rights are not just idealistic whistleblowers or even real terrorists. The negative consequences are now spilling over to legitimate businesses and their innocent customers whose personal property — and emails are personal property — is now at risk through no fault of their own.

Other countries are now issuing warnings to their citizens not to take their internet services business to companies based in the United States. German Interior Minister Hans-Peter Friedrich recommended that “whoever fears their communication is being intercepted in any way should use services that don’t go through American servers.” The Technology and Innovation Foundation has estimated that the chilling effect of heightened cyber-snooping and corporate cooperation with the NSA in the U.S. could be a loss of as much of $35 billion in annual business in the cloud computing industry alone.

Edward Snowden summarized the situation well in a statement on the Lavabit shutdown:

“The President, Congress, and the Courts have forgotten that the costs of bad policy are always borne by ordinary citizens, and it is our job to remind them that there are limits to what we will pay. America cannot succeed as a country where individuals like Mr. Levison have to relocate their businesses abroad to be successful. Employees and leaders at Google, Facebook, Microsoft, Yahoo, Apple, and the rest of our internet titans must ask themselves why they aren’t fighting for our interests the same way small businesses are.”

During the congressional recess this issue ought to be the prime topic at townhalls around the country. We should ask our legislators whether they are going to continue to come up short, as they did on the vote for the Conyers-Amash amendment to put some common sense limits on the NSA, or whether they will stand up for the privacy and free speech rights that every citizen in this nation is inherently entitled to and guaranteed by the Bill of Rights.

We have come to the point where we have to decide which America we are going to live in: the one founded on the principles of Washington, Jefferson, Adams and Madison; or the one born of unreasoning fear. Ben Franklin warned of that second America when he wrote these famous words: “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”

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Dave Nalle

Dave Nalle has been writing political analysis since the 1980s for newspapers, magazines and now online journals. He is currently Execitive Director of the Center for Foreign Policy Priorities, is on the board of the Coalition to Reduce Spending, and served four years as National Chairman of the Republican Liberty Caucus.

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