Last time we checked in on Lavabit and Ladar Levison, the Department of Justice was explaining in a 60-page appellate brief that Levison’s lawyer was doing it all wrong. That lawyer, Jesse Binnall (with assistance from three other lawyers), fired off his response to the feds on Friday. It’s a pretty tight read, at 34 pages. The upshot is that Binnall takes issue with the DOJ’s assertion that many of his arguments shouldn’t be considered because he didn’t raise them in the lower court, and he says the warrant used by the government to get Levison’s encryption keys was bunk. Rather than get too deep into the ins and outs of the brief, I’ll just hit you with some of its better rhetorical flourishes. To me, they make it sound like Binnall et al. are rolling up their sleeves and ready to trade punches.
[T]he government’s statutory argument is worse than strange; it is wrong.
The government’s novel reimagining of the word “installed” is so avant-garde that not even the government can remember to stick to it.
The government also argues (at 32–33) that information may “pertain” to a subscriber even if that information is not known to the subscriber, as Lavabit’s private encryption keys are not. That is true, and quite irrelevant.
Perhaps realizing this, the government attempts something of a purposivist Hail Mary: Applebaum, says the government, described the statute as being designed to “protect legitimate law enforcement needs.” That is not an argument; it is a rhetorical meat cleaver designed to cut off debate. And even if a free-floating assessment of purpose had greater dignity than the statutory text (which it does not), the government has truncated the quotation; in full, it takes on a rather different character: “As one Senator remarked, the SCA was designed to protect legitimate law enforcement needs while minimizing intrusions on the privacy of system users as well as the business needs of electronic communications system providers.”
Lavabit proposed to develop custom software to protect its users’ privacy while giving the government the information it was authorized to collect, for the princely sum of $2,000. App. 83. It has probably cost the government more to print its briefs in this appeal. At any rate, on the curve of public contracting, Lavabit’s offer may qualify as the deal of the century. Cf. Robert Pear, “Health Website Official Tells of White House Briefings,” The New York Times, at A20 (Nov. 13, 2013) (estimating the cost of one government website at $600 million).
This is thin gruel. And it is the best the government has. The government cannot find more authority for its claimed power because it does not exist.
[E]xamining the communications of hundreds of thousands of innocent people absent any suspicion is an unreasonable search. In response, the government concedes (at 43) that the communications data will all be examined—but, we are told, only “momentarily,” and only by its surveillance device; the government promises that the communications of innocent people will not “reach any human eye.”
For this argument to be successful, the government would need two things, neither of which it has. First, it would need some evidence for the factual premise—some reason to believe, in other words, that its description of its device is accurate. Perhaps it is, but the government points to no evidence of it. That is troubling, because as has now become well known, the government (1) maintains a variety of private, exotic theories about when it is lawful for it to capture and retain electronic communications, and (2) does not always observe even court-ordered limits on its surveillance, as Judge Bates has observed in his capacity of as a FISA court judge.