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Snowden email provider loses appeal

A federal appeals court has rejected an appeal of contempt of court findings against a now-defunct email firm that reportedly provided services to National Security Agency leaker Edward Snowden.

In a ruling issued Wednesday, the U.S. Court of Appeals for the 4th Circuit said email provider Lavabit LLC and owner Ladar Levison failed to present to a district court their key arguments against the government's tactics seeking encryption keys and information about one of the firm's customers. That customer is not identified in public court papers but is believed to be Snowden.

Judge G. Steven Agee said that if Lavabit and Levison believed the requirement to turn over encryption keys exceeded the government's authority under so-called "pen register" and "trap and trace" statutes, they needed to make that claim before the district judge who held them in contempt last year.

"Lavabit neither 'plainly' nor 'properly' identified these issues for the district court," Agee wrote in an opinion joined by Judges Paul Niemeyer and Roger Gregory. "We decline to hear Lavabit’s new arguments merely because Lavabit believes them to be important."

Lavabit argued that requiring the firm to turn over its encryption keys effectively destroyed its business model, which promised customers strong security for their messages and data. The firm also said the law didn't require Internet providers to provide the degree of assistance to the government that prosecutors and the FBI had sought.

The opinion (posted here) stressed that the court wasn't ruling on those arguments but setting them aside.

"We reiterate that our review is circumscribed by the arguments that Lavabit raised below and in this Court. We take this narrow course because an appellate court is not a freestanding open forum for the discussion of esoteric hypothetical questions," Agee wrote.

Levison shut down Lavabit last year after ultimately turning over his encryption keys to the government. It does not appear investigators ever received any usable information from their efforts to tap into Lavabit's data.

An attorney for Levison and Lavabit said the court's ruling was disappointing, but didn't bless the government's actions in the case.

"This is not a decision that says the government's surveillance theories in this case are correct. It's really a story about an unrepresented litigant in closed proceedings happening at warp speed about 1,000 miles from his house understandably not raising the issues the way counsel" would have, said Ian Samuel of Jones Day.

Samuel said there had been no decision on whether to ask the full bench of the 4th Circuit to rehear the case or ask the Supreme Court to take up the issue. The attorney did say it's likely that at some point in the near future some other firm or individual will be faced with the same kind of demand from the government for encryption keys.

"It does seem like it’s likely to recur," the attorney said. "Hopefully, we’ve laid out a road map or at least one road map for why the government's surveillance theories in a case like this are not correct. That may make it easier for the next person in a case like this to prevail."

A Justice Department spokesman did not respond to a request for comment on the ruling.

UPDATE (Wednesday, 2:56 P.M.): This post has been updated with comments from Samuel.