Judge Hilton decides a hearing with the parties present might help
Judge Claude Hilton issued the show cause order the same day, including a summons for Lavabit to appear at a hearing a week later. Judge Hilton is a secrecy case veteran, having served on the secretive FISA (Foreign Intelligence Surveillance Act) court from 2000 to 2007. The Judge continued to keep the Lavabit case under seal, but reinstated Lavabit's exception to the gag rule when consulting with an attorney.
The next day, Levison went to the FBI field office in Dallas for a meeting/conference call that included prosecutors and FBI agents in Washington and his attorney in San Francisco, convened "to discuss Mr. Levison's questions and concerns" [that] focused primarily on how the pen register device would be installed on the Lavabit LLC system, what data would be captured by the device, what data would be viewed and preserved by the government... [and] whether Mr. Levison would be able to provide "keys' for encrypted information."
The parties did not reach an agreement at the meeting and the next day, July 11, Levison's attorney informed the FBI that she no longer represented Levison or Lavabit. The same day, Levison "indicated that he would not come to court [for the July 16 show cause hearing] unless the government paid for his travel," according to a government filing.
Rather than engage in a dispute over travel expenses, the FBI served Levison with a subpoena to appear before a Fourth Circuit grand jury, also on July 16. The government is responsible for the travel arrangements of grand jury witnesses, and the FBI so advised Levison by email. The grand jury subpoena left little wriggle room in its effort to force Lavabit to surrender the encryption keys that were essential to its business:
"In addition to your personal appearance, you are directed to bring to the grand jury the public and private encryption keys used by lavabit.com in any SSL (Secure Socket Layer) or TLS (Transport Security Layer) sessions, including HTTPS sessions with clients using lavabit.com website and encrypted SMTP communications (or Internet communications using other protocols) with mail servers;
"Any other information necessary to accomplish the installation and use of the pen/trap device ordered by Judge Buchanan on June 28"."
"I don't trust you, but you should trust me" and vice-versa
Levison responded on July 13 with an email to the U.S. Attorney's office, offering an alternative to the FBI-operated wiretap. Levison proposed that he would collect the court-designated data himself. While he didn't state it in the email, this would address one of Levison's primary concerns, that there was no effective oversight to prevent the FBI from gathering more data than the court had allowed. Levison proposed to design and implement the solution, gather the data manually, and provide it to the FBI at the end of the 60-day court order -- for a price of $2,000. For another $1,500, he offered to provide data "more frequently," which would require implementing an automated system.
The U.S. Attorney chose not to explore the offer. In a brusque and internally contradictory reply email the same day, an assistant U.S. Attorney explained "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." The government later admitted to the court that it was "unclear" as to precise details of the proposal. The clear implication of Levison's proposal is a willingness to provide real-time transmission for reasonable compensation. But that would leave Levison in control. The government didn't consider that a useful compromise.
On July 15, Levison flew to Washington for his show cause hearing at 10 the next morning, although he thought it was set for 10:30 and arrived late. He was appearing pro se, representing himself without an attorney.
Even a federal court hearing can be a comedy of errors
The government goal for the July 16 hearing remained unchanged: "Lavabit LLC may comply with the pen register order by simply allowing the FBI to install the pen register devise and provide the FBI with the encryption keys." Lacking compliance, the government asked the court to impose a civil contempt sanction of $1,000 a day until Lavabit complied.
The government also requested a search warrant for the encryption keys. Judge Hilton granted the search warrant before the hearing began.
As it turned out, the 20-minute hearing resulted in no change in the legal standing of the parties, but did produce a transcript with moments of unintentional hilarity.
Present in the courtroom were Judge Hilton and the court staff. U.S. Attorney James Trump represented the government, along with three other lawyers and an FBI agent. Levison was alone.
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