The U.S. Attorney wanted to know if Levison was going to comply with the wiretap order, but Judge Hilton wouldn't ask and Levison wouldn't say. Or rather, Levison said he had always been ready and willing to comply with installation of the wiretap, but he was reluctant to give up the encryption codes, which would give the FBI access to all 400,000 of his subscribers even though the court order named only one. "There was never an explicit demand that I turn over those keys," Levison said.
The U.S. Attorney argued that Judge Buchanan had effectively if not specifically ordered Levison to turn over the encryption keys. Judge Hilton wasn't touching that: "I'm not sure I ought to be enforcing Judge Buchanan's order." Judge Hilton said that his order was to install the wiretap and Levison had said he'd do that, so -- "You're trying to get me to deal with a contempt before there's any contempt, and I have a problem with that."
Levison moved to unseal all but the sensitive information in the proceedings. Judge Holton denied the motion, based on the underlying criminal investigation. Levison asked the judge to order "some sort of external audit to ensure that your oders are followed to the letter" as to FBI data collection. The judge refused. Levison moved to continue the hearing to allow him to retain counsel. Judge Hilton granted the continuance.
Levison and Lavabit get legal representation from a Virginia firm
Levison's new attorney is Jesse Binnall of Bronley & Binnall PLLC in Fairfax, Virginia. Binnall, 34, was a communication major at George Mason University and graduated from the Law School there in 2009. Binnall and Levison would later be among the first guests on the New Ron Paul Channel in mid-August.
On July 25, Binnall filed under seal a "Motion to quash" the outstanding grand jury subpoena and the search warrant against Lavabit. The motion requested "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 are required to produce the Master Key, that they be reimbursed for its costs which were directly incurred in producing the Master Key"."
In support of his motion, Binnall made a number of arguments against the actions of the government, which had not faced serious legal opposition up to this point.
Binnall pointed out that giving the government access to Lavabit's Master Key is tantamount to giving the government access to all of Lavabit's 400,000 users. That amounts to a general warrant that is unconstitutional, Binnall wrote, and:
"It is axiomatic that the Fourth Amendment prohibits general warrants [with Supreme Court cases cited]". The Fourth Amendment's particularity requirement is meant to "prevent the seizure of one thing under a warrant describing another' [citation omitted]. 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 "place,' "person [and] thing' on Lavabit's network". Additionally, the Government has no probable cause to gain access to the other users accounts."
The government seemed unconcerned about Levison's business survival
Bindall also argued that the court should quash the subpoena and search warrant as creating an "undue burden" on Lavabit as defined by law [U.S. Code Title 18, sec. 2703]:
"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."
Also on July 25, Binnall filed a motion to unseal court records and to lift the gag order on his client, since the "gag order infringes upon freedom of speech under the First Amendment, and should he subjected to constitutional case law. "
Unsurprisingly, the U.S. Attorney filed a motion in opposition.
At the motion hearing on August 1, Judge Hilton engaged in lengthy colloquy with attorney Binnall. Before the 25-minute hearing was half over, the judge had denied both motions and the U.S. Attorney had said little more than "Good morning." Judge Hilton gave Levison and Lavabit until 5 p.m. Dallas time on August 2 to comply.
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