In re: Under Seal

Filing 38

AMICUS CURIAE/INTERVENOR BRIEF by Empeopled, LLC in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 10/25/2013. [999226270] [13-4625, 13-4626] Mahesha Subbaraman

Nos. 13-4625, 13-4626

In the United States Court of Appeals
for the Fourth Circuit
In re: GRAND JURY PROCEEDINGS
___________________________________________
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
UNDER SEAL,
Party-in-Interest – Appellants.

On Appeal from the United States District Court
for the Eastern District of Virginia

BRIEF OF AMICUS CURIAE EMPEOPLED, LLC
in Support of the Appellants and Reversal of the Judgment Below
Richard M. Martinez
Mahesha P. Subbaraman
ROBINS, KAPLAN,
MILLER & CIRESI, L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
[phone]
Counsel for Amicus Curiae
Empeopled, LLC

Table of Contents
Table of Authorities ............................................................................................... ii
Amicus Identity, Interest, & Authority to File.................................................... 1
Summary of the Argument .................................................................................... 6
Argument ................................................................................................................. 7
1.

Political Privacy Is Vital to Democratic Self-Governance
and Thus Protected by the Constitution ......................................... 7

2.

Governmental Intrusions Upon Political Privacy Must
Survive the Test of Strict Scrutiny.................................................. 11

3.

By Protecting Political Privacy, Online Service Providers
Advance Liberty and Self-Governance Worldwide .................... 15

4.

The Government’s Demand for Lavabit’s Keys Has
Chilled the Privacy Efforts of Online Service Providers ............ 21

5.

The Government’s Demand for Lavabit’s Keys Thus
Deserves—and Cannot Survive—Strict Scrutiny ........................ 24

Conclusion.............................................................................................................. 33
Certificate of Compliance .................................................................................... 34
Certificate of Service ............................................................................................. 35

i

Table of Authorities
Page

Cases

ACLU v. Reno,
929 F. Supp. 824 (E.D. Pa. 1996) aff’d, 521 U.S 844 (1997) ........................ 3
Bland v. Roberts,
No. 12-1671, 2013 U.S. App. LEXIS 19268
(4th Cir. Sept. 18, 2013) ...................................................................16, 17, 18
Blumenthal v. Drudge,
992 F. Supp. 44 (D.D.C. 1998) .................................................................... 15
Boyd v. United States,
116 U.S. 616 (1886) ..................................................................................4, 33
Bridges v. City of Bossier,
92 F.3d 329 (5th Cir. 1996) .......................................................................... 25
Bursey v. United States,
466 F. 2d 1059, 1088 (9th Cir. 1972).....................................................31, 32
Casey v. City of Newport,
308 F.3d 106 (1st Cir. 2002) ........................................................................ 31
Citizens United v. Fed. Election Comm’n,
130 S. Ct. 876 (2010) ........................................................................12, 15, 26
Doe v. 2TheMart.com, Inc.,
140 F. Supp. 2d 1088 (W.D. Wash. 2001) ................................................. 20
Gibson v. Fla. Legislative Investigation Comm.,
372 U.S. 539, 572 (1963) ........................................................................29, 30

ii

Table of Authorities (cont’d)
Page

Cases (cont’d)

Jordan v. Hutcheson,
323 F.2d 597 (4th Cir. 1963) .......................................................................... 7
Kamen v. Kemper Fin. Servs., Inc.,
500 U.S. 90 (1991) ........................................................................................ 25
Lankford v. Gelston,
364 F.2d 197 (4th Cir. 1966) ......................................................14, 27, 28, 29
Lawrence v. Texas,
539 U.S. 558 (2003) ...................................................................................... 33
McIntyre v. Ohio Elections Comm’n,
514 U.S. 334 (1995) ..................................................................7, 9, 10, 12, 13
NAACP v. Alabama,
357 U.S. 449 (1958) ........................................................................8, 9, 12, 13
Olmstead v. United States,
277 U.S. 438, 485 (1928) ........................................................................26, 27
Poe v. Ullman,
367 U.S. 497 (1961) ...................................................................................... 11
Roman Catholic Archdiocese of N.Y. v. Sebelius,
907 F. Supp. 2d 310 (E.D.N.Y. 2012) ......................................................... 14
Smith v. Ark. State Highway Emps.,
441 U.S. 463 (1979) ........................................................................................ 7

iii

Table of Authorities (cont’d)
Page

Cases (cont’d)

Socialist Workers Party v. Hechler,
890 F.2d 1303 (4th Cir. 1989)..........................................................10, 11, 13
Sweezy v. New Hampshire,
354 U.S. 234, 267 (1957) ....................................................................7, 11, 30
United States v. Carolene Prods. Co.,
304 U.S. 144 (1938) ................................................................................11, 12
United States v. Kyllo,
37 F.3d 526 (9th Cir. 1994) .......................................................................... 26
United States v. Stevens,
130 S. Ct. 1577 (2010) .................................................................................. 14
United States v. Van Winrow,
951 F.2d 1069 (9th Cir. 1991) ...................................................................... 25
Wis. Action Coalition v. City of Kenosha,
767 F.2d 1248 (7th Cir. 1985) ...................................................................... 31
Zeran v. Am. Online, Inc.,
129 F. 3d 327 (4th Cir. 1997) ....................................................................... 15

Other Authorities
About empeopled, EMPEOPLED, http://beta.empeopled.com/about ................. 1

iv

Table of Authorities (cont’d)
Page

Other Authorities (cont’d)

Amy Davidson, Introducing Strongbox, THE NEW YORKER, May 15,
2013, http://www.newyorker.com/online/blogs/closeread/
2013/05/introducing-strongbox-anonymous-documentsharing-tool.html .......................................................................................... 20
Anjali Mullany, Privacy for the People: Wall Street Protesters Use
Social Media App Vibe to Communicate Anonymously, N.Y.
DAILY NEWS, Sept. 28, 2011, http://www.nydailynews.com/
news/wall-street-protesters-app-communicateanonymously-article-1.958432.................................................................... 20
Bill Chappell, Citing Privacy Worries, Tech & Legal Site Groklaw
Shuts Down, NAT’L PUB. RADIO (NPR) TWO-WAY BLOG (Aug.
20, 2013, 1:16 PM) http://www.npr.org/blogs/thetwoway/2013/08/20/213828634/citing-privacy-worries-techand-legal-site-groklaw-shuts-down. ...................................................23, 24
Ian Paul, U.S. VPN Provider Shuts Consumer Service In Response to
Lavabit Case, PC WORLD, Oct. 22, 2013, http://www.pcworld.
com/article/2056554/u-s-vpn-provider-shuts-consumerservice-in-response-to-lavabit-case.html .................................................. 23
INT’L TELECOMM. UNION, THE WORLD IN 2013: ICT FACTS & FIGURES
(2013), http://www.itu.int/en/ITU-D/Statistics/Documents
/facts/ICTFactsFigures2013.pdf ............................................................... 15
Jennifer O’Mahony, Turkey Protests: How Activists Stay One Step
Ahead with Social Media, TELEGRAPH (U.K.), June 4, 2013,
http://www.telegraph. co.uk/technology/internetsecurity/10098353/Turkey-protests-how-activi sts-stay-onestep-ahead-with-social-media.html........................................................... 20
v

Table of Authorities (cont’d)
Page

Other Authorities (cont’d)

Jennifer Preston, Seeking to Disrupt Protesters, Syria Cracks Down on
Social Media, N.Y. TIMES, May 22, 2011, http://www.nytimes.
com/2011/ 05/23/world/middleeast/23facebook.html ...................... 18
Jennifer Preston, YouTube Offers a Way to Blur Faces, Protecting
Identities in Videos, N.Y. TIMES MEDIA DECODER BLOG (July 18,
2012, 7:07 PM) http://mediadecoder.blogs.nytimes.com/
2012/07/18/youtube-offers-a-way-to-blur-faces-protectingidentities-in-videos/. ................................................................................... 19
Jon Callas, To Our Customers, SILENT CIRCLE BLOG (Aug. 9, 2013),
http://silentcircle.wordpress.com/2013/08/09/to-ourcustomers/ .................................................................................................... 22
Josh Chin, China Tightens Grip on Social Media, WALL ST. J., Sept. 9,
2013, http://online.wsj.com/news/articles/SB10001424127
8873245490045 79065113098846226 ........................................................... 18
Kerry McQueeney, Iran’s Government Accused of Controlling Internet
Access As It Prepares to Switch Citizens’ Networks to ‘Improve
Security’, U.K. DAILY MAIL ONLINE, Sept. 24, 2012,
http://www.dailymail.co.uk/news/ article-2207902/Iraninternet-censorship-Government-accused-restricting-citizensonline-access.html. ....................................................................................... 16
Pamela Jones, Forced Exposure, GROKLAW (Aug. 20, 2013, 2:40 AM),
http://groklaw.net/article.php?story=20130818120421175 ................. 24

vi

Table of Authorities (cont’d)
Page

Other Authorities (cont’d)

Press Release, Empeopled, empeopled Launches Social Platform to
Bring Better Conversation and Content Curation to the
Internet (Oct. 17, 2013), http://prweb.com/releases/2013/
10/prweb11244684.htm ........................................................................1, 2, 3
Ronald D. Rotunda, Original Intent, the View of the Framers, and the
Role of the Ratifiers, 41 VAND. L. REV. 507, 509-10 (1988). .......................... 7
Ryan Gallagher, The Threat of Silence, SLATE, Feb. 4, 2013,
http://www.slate.com/articles/technology/future_tense/
2013/02/silent_circle_s_latest_app_democratizes_encryption
_governments_won_t_be.html................................................................... 22
Tanja Aitamurto & Hanna Sistek, How Social Media is Keeping the
Egyptian Revolution Alive, PUB. BROAD. SERV. (PBS) MEDIASHIFT
BLOG, (Sept. 13, 2011) http://www.pbs.org/mediashift/
2011/09/how-social-media-is-keeping-the-egyptianrevolution-alive256/ .................................................................................... 16
TECHWEEK, http://techweek.com (last visited Oct. 19, 2013)........................... 2
2013 Nominees, CHICAGO INNOVATION AWARDS, http://chicago
innovationawards.com/nominations/nominate-now/ .......................... 2

vii

Amicus Identity, Interest, and Authority to File
1.

Identity of Empeopled
Empeopled, LLC (“Amicus”) is an early-stage startup company

dedicated to advancing democratic self-governance through social media.
Empeopled provides a virtual conversation platform that enables people
across the world to discover each other, organize democratically, and then
dynamically decide their own future.1 This platform is now open to the
public and may be accessed online at beta.empeopled.com.
Empeopled was founded in 2012 by Aris Michalopoulos and William
Howe. A graduate of the University of Chicago, Aris left a successful career
in finance to help found Empeopled. The company’s vision is reflected its
motto, “Better Conversation for a Better World,”2 which ultimately speaks
to what the Internet both can and does make possible.
Empeopled launched its online platform in April 2013.3 Since then,
more than 1,000 users have joined Empeopled, creating and contributing to
See Press Release, Empeopled, empeopled Launches Social Platform
to Bring Better Conversation and Content Curation to the Internet (Oct. 17,
2013), http://prweb.com/releases/2013/10/prweb11244684.htm.
2
About empeopled, EMPEOPLED, http://beta.empeopled.com/about.
3
See Press Release, supra note 1.
1

1

dozens of topical communities like “Tech World” and “The Human Rights
Society.”4 These users participate in these topical communities via written
posts and comments.5 Users then award points to each other’s written
contributions to the extent they enrich the community as a whole. Finally,
users employ crowd-voting to decide community rules and elect leaders to
enforce these rules.6 “This means that the community can administer and
govern itself to ensure high-quality, orderly conversation.”7
Empeopled thus constitutes “a long-term experiment to see what can
be achieved when social media merges with self-governance.”8 As such, it
was a nominee for a 2013 Chicago Innovation Award and recently was an
exhibitor at the 2013 Techweek Chicago Launch Exposition.9

2.

Interest of Empeopled
Empeopled is interested in this case because of what it means for the

future of free expression on the Internet and the kind of democratic
See id.
See id.
6
See id.
7
See id.
8
Id. (quoting Empeopled co-founder Aris Michalopoulos).
9
See 2013 Nominees, CHICAGO INNOVATION AWARDS, http://chicago
innovationawards.com/nominations/nominate-now/ (last visited Oct. 19,
2013); TECHWEEK, http://techweek.com (last visited Oct. 19, 2013).
4
5

2

initiative and civic participation that Empeopled hopes to foster among its
users. As Empeopled co-founder Aris Michalopoulos explains: “I imagine
Empeopled one day becoming a platform for charitable causes, grass-roots
lobbyist groups and maybe even virtual political parties.”10
Empeopled’s chances of achieving this goal, however, depend on its
ability to innovate and provide its users with new ways to empower both
themselves and each other. In this regard, Empeopled believes that just as
private membership lists and a secret ballot are vital to civic participation
in a democratic society, so too are the privacy-protecting measures that are
employed by online service providers worldwide in order to encourage
free speech and association among their users on the Internet.
That is why the outcome of this appeal matters to Empeopled. At
stake in this appeal are the future of the Internet, and the freedom of online
service providers like Empeopled to meet both the privacy and free speech
needs of their users worldwide. In this regard, “[a]s the most participatory
form of mass speech yet developed, the Internet deserves the highest
protection from governmental intrusion.” ACLU v. Reno, 929 F. Supp. 824,

10

Press Release, supra note 1 (quoting Aris Michalopoulos).
3

883 (E.D. Pa. 1996) (Dalzell, J., concurring), aff’d, 521 U.S 844 (1997). And
yet, because of the Government’s actions in this case, over 400,000 users of
Lavabit’s e-mail service have lost an important, secure, and fundamentally
private means of speaking to each other and the rest of the world.
That loss means a great deal for people worldwide who seek to share
their political beliefs and form grassroots organizations but cannot do so—
or fear doing so—absent the political privacy that online service providers
afford. In turn, online service providers like Empeopled have a significant
interest in protecting the political privacy of their users given the kinds of
conversations and collaboration that such privacy enables. For this reason,
the cost of a ruling against Lavabit in this case would be immeasurable,
sending a clear—and chilling—message to online service providers about
how much they should value the political privacy of their users.
Empeopled thus respectfully submits this amicus brief to assist this
Court in its duty “to be watchful for the constitutional rights of the citizen,
and against any stealthy encroachments thereon.” Boyd v. United States, 116
U.S. 616, 635 (1886). In doing so, Empeopled hopes this Court will give
serious consideration to what this case means for online service providers
and the millions of people they empower across the globe.
4

3.

Authority of Empeopled to File
Empeopled files this amicus brief under Fed. R. App. P. 29(a), having

received the consent of all the parties in this case. Moreover, per Fed. R.
App. P. 29(c)(5), Empeopled states that no party, nor counsel for any party,
in this case: (1) wrote this brief in part or in whole; or (2) contributed
money meant to fund the preparation or submission of this brief. Only
Empeopled, including its members and counsel, has contributed money
meant to fund the preparation and submission of this brief.

.

5

Summary of the Argument
The Government’s seizure of Appellant’s private encryption keys is a
matter of exceptional importance to online service providers. The chilling
effect of this seizure has forced such providers to reexamine their ability
and willingness to protect the political privacy of their users—users who
depend on this privacy to speak freely, advocate their political beliefs, and
organize democratically, all through the Internet.
Accordingly, this Court should apply strict scrutiny in considering
whether the Government’s demand for Appellant’s private encryption keys
was proper in this case. Such exacting judicial review is warranted given the
fundamental political rights this case implicates, and the chilling effect of
the Government’s demand. Because of this demand, the privacy of over
400,000 users of Appellant’s e-mail service was threatened in an effort by
the Government to obtain evidence on just one of these users.
This should lead the Court to find as a matter of strict scrutiny that:
(1) the Government’s investigative interest was not a compelling basis to
seize Appellant’s keys; and (2) this seizure was not, in any event, narrowly
tailored to meet this investigative interest. The judgments of the court below
allowing this seizure should thus be reversed in their entirety.
6

Argument
1.

Political Privacy Is Vital to Democratic Self-Governance
and Thus Protected by the Constitution.
“The First Amendment protects the right of an individual to speak

freely, to advocate ideas, to associate with others, and to petition his
government for redress of grievances.” Smith v. Ark. State Highway Emps.,
441 U.S. 463, 464 (1979). But it is “the right of a citizen to political privacy,
as protected by the Fourteenth Amendment” that unlocks the door to these
First Amendment rights, helping to ensure that everyone gets to participate
in deciding our nation’s future—minorities and dissidents included. Sweezy
v. New Hampshire, 354 U.S. 234, 267 (1957) (Frankfurter, J., concurring); see
also Jordan v. Hutcheson, 323 F.2d 597, 600 & n.4 (4th Cir. 1963) (quoting this
language from Justice Frankfurter’s Sweezy concurrence).
The Framers understood this as they drafted the Constitution in secret
over the summer of 1787,11 and then privately collaborated with each other
to publish anonymous editorials arguing over whether the States should
adopt the Constitution. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334,

See Ronald D. Rotunda, Original Intent, the View of the Framers, and the
Role of the Ratifiers, 41 VAND. L. REV. 507, 509-10 (1988).

11

7

360–67 (1995) (Thomas, J., concurring). And in the 226 years since then,
federal courts have defended political privacy from government intrusion,
especially in matters of association, speech, and the right to vote.
Free Association. Consider the Supreme Court’s essential defense of
political privacy during the midst of the Civil Rights Movement in NAACP
v. Alabama, 357 U.S. 449 (1958). At issue in NAACP was a “judgment of
contempt” against the NAACP for refusing “to comply fully with a court
order requiring in part the production of membership lists.” Id. at 451.
Alabama argued it needed the lists to prove that the NAACP’s activities in
Alabama violated Alabama’s business registration laws. See id. at 464.
Alabama further argued that any chilling effect that might result from its
obtaining the lists should be disregarded since it “follow[ed] not from state
action but from private community pressures.” Id. at 463.
A unanimous Supreme Court, however, rejected this view, finding
instead that “[i]n the domain of … indispensable liberties, whether of
speech, press, or association … abridgment of such rights, even though
unintended, may inevitably follow from varied forms of governmental
action.” Id. at 461. The Court consequently refused to let Alabama seize the
NAACP’s membership lists given “the vital relationship between freedom

8

to associate and privacy in one’s associations” and “the deterrent effect on
the free enjoyment of the right to associate which disclosure of [the
NAACP] membership lists is likely to have.” Id. at 462, 466.
Free Expression. Another key defense of political privacy is present in
McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). After Margaret
McIntyre distributed political leaflets opposing a school levy near a public
meeting—leaflets that were not “false, misleading, or libelous”—she was
convicted of violating Ohio election law. See id. at 337-38. Her crime?
Deciding to publish many of the leaflets without putting her name on
them. See id. at 338. Subsequently, on appeal, Ohio argued that the election
law at issue was “a reasonable regulation of the electoral process” that was
needed to “prevent[] fraudulent and libelous statements” and “provid[e]
the electorate with relevant information.” Id. at 341, 348.
The Supreme Court took a different view: “Under our Constitution,
anonymous pamphleteering is not a pernicious, fraudulent practice, but an
honorable tradition of advocacy and of dissent.” Id. at 357. The Court
thereby affirmed how political privacy and self-governance work hand in
hand: “Anonymity is a shield from the tyranny of the majority. It thus
exemplifies the purpose behind the Bill of Rights … to protect unpopular

9

individuals from retaliation….” Id. In turn, the Court observed that while
such anonymity may be abused, still, “our society accords greater weight
to the value of free speech than to the dangers of its misuse.” Id.
Right to Vote. The Supreme Court has described the “secret ballot”
as “the hard-won right to vote one’s conscience without fear of retaliation.”
McIntyre, 514 U.S. at 344. Accordingly, this Court’s decision in Socialist
Workers Party v. Hechler, 890 F.2d 1303 (4th Cir. 1989) defended both this
right and the essential way in which this right connects political privacy
with self-governance. At issue in Hechler was a constitutional challenge to
various West Virginia election laws, including a law that required persons
signing minor-party-candidate nomination petitions to also declare their
“desire to vote” for the candidate named in the petition. See id. at 1304.
West Virginia argued this law “protect[ed] the voter ... from inadvertently
signing his primary nomination vote away.” Id. at 1310.
This Court noted, however, the real effect of this law: to “discourage
people from joining unpopular or controversial parties or causes.” Id. at
1309. For this reason, this Court emphasized that “the important thing is
what the voter thinks”—and, from this perspective, the need of every voter
to keep his or her vote private was clear. Id. at 1310. The law at issue thus

10

could not pass muster, as it “discourage[d] citizens from participation in
the electoral process simply because they do not wish people to know how
they will vote.” Id. at 1309 (quotation and citation omitted).
Private membership lists. Anonymous political speech. Secret ballots.
These are “not a series of isolated points pricked out” by the Constitution.
Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting). Rather, they
are part of “the full scope of … liberty guaranteed by the Due Process
Clause.” Id. And for good reason, as “[h]istory has amply proved the virtue
of political activity by minority, dissident groups, who innumerable times
have been in the vanguard of democratic thought.” Sweezy, 354 U.S. at 251.
Thus, when government conduct serves to curtail the privacy that makes
such “political activity” possible, this conduct demands the toughest form
of judicial review available under the Constitution: strict scrutiny.

2.

Governmental Intrusions Upon Political Privacy Must
Survive the Test of Strict Scrutiny .
Seventy-five years ago, the Supreme Court acknowledged the general

need for “more exacting judicial scrutiny” when laws impose “restrictions
upon the right to vote … [or] restraints upon the dissemination of
information … [or] interferences with political organization.” United States

11

v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). Since then, when state
action has intruded in a significant manner on political speech, association,
or the right to vote, the legal test for whether such an action can survive
constitutional review has almost always been “strict scrutiny.” See, e.g.,
Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 898 (2010) (“Laws that
burden political speech are ‘subject to strict scrutiny’….”).
Under the test of “strict scrutiny,” the Government must prove to the
Court that its intrusion “furthers a compelling interest and is narrowly
tailored to achieve that interest.” Id. Hence, the Supreme Court has applied
strict scrutiny not only where state action has directly restricted a core right
like free speech (e.g., a total ban on leafleting), but also where state action
has invaded a realm of political privacy that is vital to the exercise of a core
right (e.g., a ban on publishing anonymous leaflets).
For example, in NAACP v. Alabama, the Court relied on the following
premise in proceeding to find that Alabama could not demand disclosure
of the NAACP’s private membership lists: “[S]tate action which may have
the effect of curtailing the freedom to associate is subject to the closest
scrutiny.” 357 U.S. at 461. Likewise, in McIntyre v. Ohio, the Court held that
while Margaret McIntyre may not have put her name on some of her

12

political leaflets, “[w]hen a law burdens core political speech, we apply
‘exacting scrutiny.’” 514 U.S. at 348. Finally, in Hechler v. Socialist Workers
Party, this Court applied a standard tantamount to strict scrutiny in finding
that West Virginia’s stated “interest in making voters disclose their voting
preferences is neither legitimate nor strong.” 890 F.3d at 1310.
It did not matter in these cases what form the government intrusion
upon political privacy took—be it statute (McIntyre, Hechler) or court order
(NAACP). Nor did it matter in NAACP that the intrusion was justified on
non-political grounds (i.e., to enforce a state business registration law). In
each case, strict scrutiny was applied, in large part because of the chilling
effect of such intrusions on the future exercise of either political speech,
free association, or the right to vote. See NAACP, 357 U.S. at 463 (noting the
“deterrent effect” of the disclosures at issue); McIntyre, 514 U.S. at 357
(emphasizing that the First Amendment exists “to protect unpopular
individuals from retaliation”); Hechler, 890 F.3d at 1310 (rejecting “desire to
vote” disclosure rule for its “chilling effect on the voter”).
Besides concern for a “chilling effect,” two other important reasons
counsel application of “strict scrutiny” where government intrusions upon
political privacy are at issue. First, intrusions upon a law-abiding citizen’s

13

privacy generally carry a significant risk of irreparable harm. As this Court
noted in regard to a warrantless police raid of multiple private homes
during an manhunt that lasted 19 days: “The parties seeking redress have
committed no acts warranting violation of the privacy of their homes….
.... There can be little doubt that actions for money damages would not
suffice to repair the injury suffered by the victims of the police searches. ….
[T]he wrongs inflicted are not readily measurable in terms of dollars and
cents.” Lankford v. Gelston, 364 F.2d 197, 201-02 (4th Cir. 1966).
Second, government intrusions upon political privacy affect liberties
that are meant to “protect[] against the Government”—not “leave us at the
mercy of noblesse oblige.” United States v. Stevens, 130 S. Ct. 1577, 1591 (2010).
The First Amendment thus “does not require citizens to accept assurances
from the government that, if the government later determines it has made a
misstep, it will take ameliorative action. …. To the contrary, the Bill of
Rights itself, and the First Amendment in particular, reflect a degree of
skepticism towards governmental self-restraint and self-correction.” Roman
Catholic Archdiocese of N.Y. v. Sebelius, 907 F. Supp. 2d 310, 331 (E.D.N.Y.
2012). And such skepticism is critical when state action intrudes upon the

14

political privacy—and resulting capacity for self-governance—that online
service providers afford to their users across the world.

3.

By Protecting Political Privacy, Online Service Providers
Advance Liberty and Self-Governance Worldwide.
In 1997, “approximately 40 million people worldwide” were using

the Internet. Zeran v. Am. Online, Inc., 129 F. 3d 327, 328 (4th Cir. 1997).
Now, in 2013, an estimated 2.7 billion people—or almost 40% of the world’s
population—use the Internet.12 Much of this explosive growth is due to the
“new forms, and new forums, for the expression of ideas” that the Internet
makes available. Citizens United, 130 S. Ct. at 917. Indeed, “users of Internet
information are also its producers. … [E]very person who taps into the
Internet is his [or her] own journalist.” Blumenthal v. Drudge, 992 F. Supp.
44, 48 n.7 (D.D.C. 1998) (citation and quotation omitted).
This makes the Internet a vital means for enabling political speech,
association, and discourse—in short, democratic self-governance. Recent
events in Iran help make this clear: “For dissidents opposing the Islamic
Republic’s leadership, the [I]nternet has become one of the most powerful

INT’L TELECOMM. UNION, THE WORLD IN 2013: ICT FACTS & FIGURES 1
(2013), http://www.itu.int/en/ITU-D/Statistics/Documents/facts/ICTFa
ctsFigures2013.pdf.
12

15

communication tools at their disposal. Demonstrations have been
orchestrated using blogs and social networks to gather support and
increase numbers.”13 Moreover, “[a]s Iran played down events to outsiders,
dissidents used Twitter, Facebook and YouTube to tell the world what was
really happening,” including the killing of Iranian student Neda Soltan,
“whose murder at the hands of a government militiaman was captured on
a camera phone and uploaded to YouTube in [June] 2009.”14 Recent events
in both Syria and Egypt bear out a similar pattern of events.15
This Court recently encountered this political reality on a smaller
scale in Bland v. Roberts with respect to campaign speech on Facebook, “an
online social network where members develop personalized web profiles

Kerry McQueeney, Iran’s Government Accused of Controlling Internet
Access As It Prepares to Switch Citizens’ Networks to ‘Improve Security’, U.K.
DAILY MAIL ONLINE, Sept. 24, 2012, http://www.dailymail.co.uk/news/
article-2207902/Iran-internet-censorship-Government-accused-restrictingcitizens-online-access.html.
14
Id.
15
See infra note 18 and accompanying text (describing the political use
of social media in Syria); see also Tanja Aitamurto & Hanna Sistek, How
Social Media is Keeping the Egyptian Revolution Alive, PUB. BROAD. SERV. (PBS)
MEDIASHIFT BLOG, (Sept. 13, 2011) http://www.pbs.org/mediashift/2011/
09/how-social-media-is-keeping-the-egyptian-revolution-alive256/
(“As
the military has closed Tahrir Square … smaller protests are happening
elsewhere in Cairo. Facebook pages … with more than 1.6 million followers, are used for spreading the message about protests…..”).
13

16

to interact and share information with other members.” No. 12-1671, 2013
U.S. App. LEXIS 19268, at *42 (4th Cir. Sept. 18, 2013). Bland concerned
claims by six sheriff’s office employees that they were fired in violation of
the First Amendment for supporting the sitting sheriff’s electoral opponent.
Id. at *2. These retaliation claims, in turn, rested on a variety of online
speech by these employees that the sheriff allegedly monitored, including
the “liking” of a Facebook page—something the district court held was
“insufficient speech to merit constitutional protection.” Id. at *41.
This Court disagreed: “In sum, liking a political candidate’s
campaign [Facebook] page communicates the user’s approval of the
candidate and supports the campaign by associating the user with it. In this
way, it is the Internet equivalent of displaying a political sign in one's front
yard ….” Id. at *46. The Court thereby recognized the substantive nature of
the kind of political speech that takes place on the Internet—particularly as
facilitated by online service providers like Facebook. Id. at *45 (“In the
context of a political campaign’s Facebook page, the meaning that the user
approves of the candidacy whose page is being liked is unmistakable.”).
The Court further acknowledged the capacity of such speech to support a
retaliation claim: in short, such speech generated “a genuine factual issue

17

concerning whether [the employee’s] Facebook support” for the sheriff’s
opponent was what cost the employee his job. Id. at *50-51.
The facts of Bland thus reveal not only the vital political speech that
takes place on the Internet, but also the frequent need for political privacy
when engaging in such speech. And in this regard, the sheriff’s alleged
conduct in Bland is but the tip of the iceberg in terms of the risks that many
users face in speaking online. For example, the New York Times reports that
in Syria—a nation with 580,000 Facebook users—government agents have
ordered dissidents to “turn over their Facebook passwords” and have even
beaten dissidents for “regime criticisms on their Facebook pages.”16 In turn,
the Wall Street Journal reports that Chinese leaders have recently declared
that “social-media users who post comments considered to be slanderous
could face prison if the posts attract wide attention.”17

Jennifer Preston, Seeking to Disrupt Protesters, Syria Cracks Down on
Social Media, N.Y. TIMES, May 22, 2011, http://www.nytimes.com/2011/
05/23/world/middleeast/23facebook.html (further explaining how one
Syrian dissident was only able to avoid detention “because he had created
multiple Facebook accounts with fake identities”).
17
Josh Chin, China Tightens Grip on Social Media, WALL ST. J., Sept. 9,
2013, http://online.wsj.com/news/articles/SB100014241278873245490045
79065113098846226 (“In recent months, the [Chinese] government has …
detain[ed] dozens for spreading rumors and warn[ed] influential microbloggers with large numbers of followers to watch what they say.”).
16

18

Given these risks, online service providers are stepping up to find
new and better ways to protect their users’ political privacy. For instance,
as the New York Times reported in 2012: “To help protect dissidents using
video to tell their stories in countries with repressive government regimes,
YouTube [has] made available a new tool … [that] allow[s] people to
obscure faces within videos uploaded onto its platform.”18
The ultimate result of these efforts has been the civic empowerment
of millions of people worldwide. The Telegraph thus offers the following
account of a Turkish citizen under the pseudonym Damla:
[A]n activist in Ankara, [Damla] is constantly refreshing private Facebook groups for updates, posting
pictures onto Twitter, and using a popular app for
group private messaging to talk to her friends.
She will receive links to maps only visible to fellow
activists that show the location of makeshift clinics
in houses and even in restaurants’ basements, and
can watch live streams of protests on the Ustream
service if she is at home.
She told the Telegraph: “It has had a massive impact,
and if it wasn’t for social media we wouldn’t have
the right information on anything. It’s been our
Jennifer Preston, YouTube Offers a Way to Blur Faces, Protecting
Identities in Videos, N.Y. TIMES MEDIA DECODER BLOG (July 18, 2012, 7:07 PM)
http://mediadecoder.blogs.nytimes.com/2012/07/18/youtube-offers-away-to-blur-faces-protecting-identities-in-videos/.
18

19

saviour.” Damla said the use of private group
messaging meant activists could “react quickly to
check whether we’re all safe”….19
This reality also obtains here at home. Indeed, Wall Street protestors
are relying on the political privacy afforded by online service providers to
organize their protests.20 A major American magazine is now offering “an
online place where people can send documents and messages to the
magazine, and we … can offer them a reasonable amount of anonymity.”21
And Americans in general are relying on the anonymity afforded to them
by their online service providers to speak in a variety of ways.22 The

Jennifer O’Mahony, Turkey Protests: How Activists Stay One Step Ahead
with Social Media, TELEGRAPH (U.K.), June 4, 2013, http://www.telegraph.
co.uk/technology/internet-security/10098353/Turkey-protests-how-activi
sts-stay-one-step-ahead-with-social-media.html.
20
See Anjali Mullany, Privacy for the People: Wall Street Protesters Use
Social Media App Vibe to Communicate Anonymously, N.Y. DAILY NEWS, Sept.
28, 2011, http://www.nydailynews.com/news/wall-street-protesters-appcommunicate-anonymously-article-1.958432.
21
Amy Davidson, Introducing Strongbox, THE NEW YORKER, May 15,
2013, http://www.newyorker.com/online/blogs/closeread/2013/05/intr
oducing-strongbox-anonymous-document-sharing-tool.html.
22
Based on this reality, one federal court has concluded: “The free
exchange of ideas on the Internet is driven in large part by the ability of
Internet users to communicate anonymously. If Internet users could be
stripped of that anonymity by a civil subpoena enforced under the liberal
rules of civil discovery, this would have a significant chilling effect on
Internet communications and thus on basic First Amendment rights.” Doe
v. 2TheMart.com, Inc., 140 F. Supp. 2d 1088, 1093 (W.D. Wash. 2001).
19

20

privacy efforts of online service providers are thus enabling more people
than ever before to exercise basic political rights without fear. And that
progress is precisely what has been endangered by the Government’s
demand for Lavabit’s private encryption keys in this case.

4.

The Government’s Demand for Lavabit’s Keys Has Chilled
the Privacy Efforts of Online Service Providers.
On the surface, the facts of the present case appear straightforward:

“Lavabit is an e-mail service provider, and this case arises out of a criminal
investigation into one of its customers. In the course of that investigation,
Lavabit was ordered to disclose the company’s private encryption keys,
which it refused to do.” Appellant’s Br. 1. Lavabit’s refusal then subjected
Lavabit to a contempt order that finally led Lavabit to “provide[] its private
keys to the government—but also shut down its service entirely.” Id. at 10.
Over 400,000 Lavabit users thus lost access to a service that gave them “an
unparalleled degree of security and privacy,” and Lavabit’s founder, Ladar
Levison, lost “nearly ten years of hard work.” Id. at 2, 10.
But the effects of the Government’s demand for Lavabit’s encryption
keys were not limited to Lavabit, Mr. Levison, and Lavabit’s over 400,000
users. Id. at 4. Silent Circle, for example, was also affected. The operator of

21

a secure, encrypted e-mail service called “Silent Mail,” Silent Circle decided
to end this service shortly after Lavabit shut itself down. Silent Circle made
this decision for the following reason: “We see the writing the wall, and we
have decided that it is best for us to shut down Silent Mail now. We have
not received subpoenas, warrants, security letters, or anything else by any
government, and this is why we are acting now.”23
That Silent Circle deemed it necessary to take this action is telling
given the important role that Silent Circle has played in to helping to
advance the protection of political privacy and free speech worldwide. As
Slate reports, Silent Circle is responsible for developing privacy tools that
enable “human rights reporters in Afghanistan, Jordan, and South Sudan
… to send photos, voice recordings, videos, and PDFs securely. … [A Silent
Circle tool] was [recently] used in South Sudan to transmit a video of
brutality that took place at a vehicle checkpoint.”24 In this regard, Silent

Jon Callas, To Our Customers, SILENT CIRCLE BLOG (Aug. 9, 2013),
http://silentcircle.wordpress.com/2013/08/09/to-our-customers/. Also,
as Amicus’s filing of this brief indicates, this case has left many online
service providers in doubt about what future government restrictions they
may eventually face in protecting the privacy of their users.
24
Ryan Gallagher, The Threat of Silence, SLATE, Feb. 4, 2013, http://
www.slate.com/articles/technology/future_tense/2013/02/silent_circle_s
_latest_app_democratizes_encryption_governments_won_t_be.html.
23

22

Circle’s credo is simply stated by its CEO and ex-Navy SEAL, Mike Janke:
“We feel that every citizen has a right to communicate.”25
And on this score, the Government’s demand for all of Lavabit’s
private keys did not just affect online service providers like Silent Circle: it
also affected citizens as well, and in much the same way that Silent Circle
was affected. As National Public Radio reports: “The website Groklaw,
which for 10 years demystified complex issues involving technology and
the law, is shutting down. Editor Pamela Jones writes that she can’t run the
site without email, and that since emails’ privacy can’t be guaranteed, she
can no longer do the site’s work.”26 What drove Jones to these conclusions?
Jones herself explains in her final web posting on Groklaw:
The owner of Lavabit tells us that he’s stopped
using email and if we knew what he knew, we’d
Id.; see also Ian Paul, U.S. VPN Provider Shuts Consumer Service In
Response to Lavabit Case, PC WORLD, Oct. 22, 2013, http://www.pcworld.
com/article/2056554/u-s-vpn-provider-shuts-consumer-service-in-respon
se-to-lavabit-case.html (reporting that the Lavabit case has also led online
service provider CryptoSeal to shut down insofar as CryptoSeal afforded
its U.S. users with “secure tunnels to the Internet that allow[ed] [these]
users to … maintain at least a modicum of privacy online”).
26
Bill Chappell, Citing Privacy Worries, Tech & Legal Site Groklaw Shuts
Down, NAT’L PUB. RADIO (NPR) TWO-WAY BLOG (Aug. 20, 2013, 1:16 PM)
http://www.npr.org/blogs/thetwo-way/2013/08/20/213828634/citingprivacy-worries-tech-and-legal-site-groklaw-shuts-down.
25

23

stop too. There is no way to do Groklaw without
email. Therein lies the conundrum.
* * *
[T]he conclusion I’ve reached is that there is no way
to continue doing Groklaw … which is incredibly
sad. But it’s good to be realistic. And the simple
truth is, no matter how good the motives might be
for collecting and screening everything we say to
one another, and no matter how “clean” we all are
ourselves from the standpoint of the screeners, I
don’t know how to function in such an atmosphere.
I don't know how to do Groklaw like this.27
Pamela Jones’s departure from the online legal world is no small loss:
“Last year, the American Bar Association named Groklaw one of the top
100 legal blogs. Its articles and interviews were selected by the Library of
Congress to be preserved in its Web Archiving project.”28 It also serves to
establish—just as Silent Circle’s shutdown decision does—the need for
“strict scrutiny” of the Government’s conduct in this case.

5.

The Government’s Demand for Lavabit’s Keys Thus
Deserves—and Cannot Survive—Strict Scrutiny.
At the outset, Amicus acknowledges that the following argument for

“strict scrutiny” review of the Government’s conduct in this case is not one

Pamela Jones, Forced Exposure, GROKLAW (Aug. 20, 2013, 2:40 AM),
http://groklaw.net/article.php?story=20130818120421175.
28
Chappell, supra note 25.
27

24

that Appellant raises in its opening brief. Instead, Appellant’s brief focuses
on dismantling the various bases on which the Government has thus far
justified its demand for Lavabit’s private encryption keys.29
This Court should still consider Amicus’s argument for two reasons.
First, neither the political privacy nor the First Amendment dimensions of
this case can be disputed given the effects of the Government’s conduct so
far on Lavabit’s over 400,000 users and the broader online community. See
supra Part IV. Thus, as the Supreme Court has held, “[w]hen an issue or
claim is properly before the court, the court is not limited to the particular
legal theories advanced by the parties, but rather retains the independent
power to identify and apply the proper law.” Kamen v. Kemper Fin. Servs.,
Inc., 500 U.S. 90, 99 (1991). Second, it is always within the Court’s power to
reach a purely legal argument raised by an amicus in its brief. See, e.g.,
Bridges v. City of Bossier, 92 F.3d 329, 335 n.8 (5th Cir. 1996).30

Appellant may still adopt Amicus’s argument in its reply brief, which
would give this Court further reason to reach Amicus’s argument. See, e.g.,
United States v. Van Winrow, 951 F.2d 1069, 1073 (9th Cir. 1991) (”[A]micus
… raises several additional challenges…. Because [Appellant] states in his
brief that he wishes to adopt these arguments as his own, and because they
present pure issues of law, we will consider them here.”).
30
In the event this Court should find that either the factual record or
the parties’ briefing in this case is not sufficient to address the political
29

25

With this in mind, “strict scrutiny” analysis in this case requires one
to first consider whether the Government’s demand for Lavabit’s keys was
supported by a “compelling interest.” Citizens United, 130 S. Ct. at 898. In
this regard, it appears the principal reason why the Government wanted
Lavabit’s private keys was because it wanted to gather evidence relevant to
a criminal investigation. See Appellant’s Br. 5. But this interest was limited
in scope given that the government’s investigation was confined to just one
Lavabit user. See id. Indeed, Lavabit was not “a target or a subject of the
government’s investigation …. [and] neither Lavabit nor its owner … [was]
charged with or suspected of any crime.” Appellant’s Br. 1 n.1.
The government’s interest in gathering evidence needed to conduct a
full criminal investigation is an important one. It is not, however, an allpurpose justification for every method the government may want to use to
get the evidence it needs. As Justice Brandeis has explained: “To declare
that in the administration of the criminal law the end justifies the means—
privacy and First Amendment arguments that Amicus raises, then Amicus
respectfully suggests the Court should remand to the district court for an
evidentiary hearing on this argument and/or seek supplemental briefing
from the parties on this argument. Cf. United States v. Kyllo, 37 F.3d 526,
530-31 (9th Cir. 1994) (remanding to the district court for an evidentiary
hearing on the intrusiveness of a thermal imaging device in order to obtain
facts needed to decide the Fourth Amendment status of the device).
26

to declare that the Government may commit crimes in order to secure the
conviction of a private criminal—would bring terrible retribution. Against
that pernicious doctrine this Court should resolutely set its face.” Olmstead
v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).
In Lankford v. Gelston, this Court was confronted with the stark need
to apply this principle in the face of the Baltimore Police Department’s
severe efforts “to capture Samuel and Earl Veney, two brothers who [had]
shot and killed one policeman and seriously wounded another.” 364 F. 2d
197, 198 (4th Cir. 1966). In particular, “[d]uring a nineteen-day period in
December, 1964, and January, 1965, the police conducted searches of more
than 300 houses, most of them private dwellings. The searches were based
in almost every instance on unverified anonymous tips. In none did the
police have a search warrant.” Id. This Court subsequently concluded that
“[t]his case reveal[ed] a series of the most flagrant invasions of privacy ever
to come under the scrutiny of a federal court.” Id. at 201.
In reaching this conclusion, this Court acknowledged the difficult
circumstances at hand: “[W]here one policeman is killed and another
wounded, the police, and the public, too, are understandably outraged and
impatient with any obstacle in the search for the murderer.” Id. at 204. At

27

the same time, this Court recognized that its respect for the “exceedingly
difficult task of the policeman” could not be allowed to deter the Court
“from protecting rights secured to all by the Constitution.” Id. It was thus
the Court’s responsibility to vindicate those homeowners whose privacy
was invaded by the Baltimore police —homeowners who “committed no
acts warranting violation of the privacy of their homes.” Id. at 201.
The facts of the present case bear a similarity to the facts of Lankford,
despite the shift from a real-world location to a virtual one. Indeed, this
case concerns the Government’s seizure of “master keys” from Lavabit that
would enable the Government to invade and monitor the private e-mail
accounts of Lavabit’s over 400,000 customers, and continue to do so in the
future had Lavabit not shut down its service. Appellant’s Br. at 4. The
Government did not try to get a warrant for each of these accounts—nor
does it appear to have established by probable cause that a search reaching
all these users’ private communications was justified. See id.
Instead, much like the Baltimore Police Department in Lankford, the
Government decided to pursue a criminal investigation by means of a
“wholesale raid[]”—and it thus demanded Lavabit’s private keys to make
this raid possible. 364 F.2d at 204. The Government then went one step

28

further, forbidding “Lavabit from telling anyone that it had compromised
[Lavabit’s] security … not its customers, not its business partners, and not
the relevant cryptographic authorities.” Appellant’s Br. 7.
By contrast, the police raids at issue in Lankford at least occurred with
the knowledge of the people whose homes were searched (see 364 F.2d at
199-200), thus enabling these people to seek later redress in this Court.
Here, absent Lavabit’s decision to shut down its e-mail service after turning
over its keys to the Government, the Government stood poised to execute a
virtual raid affecting 400,000 private e-mail accounts, without any of the
owners ever knowing this had happened or getting the chance to object in
court—users who, as far as the record indicates, have “committed no acts
warranting violation of the privacy of their [e-mail].” Id. at 201.
Accordingly, the Government’s interest in conducting this raid in the
hopes of seizing communications made by a single criminal suspect is not
sufficiently compelling to pass strict scrutiny. Nor can it be, when one
considers the long-term effect of such government conduct on both the
political privacy and First Amendment rights of every American. As Justice
Douglas notes: “If the files of the N.A.A.C.P. can be ransacked because
some Communists may have joined it, then all walls of privacy are broken

29

down. By that reasoning the records of the confessional can be ransacked
because a ... criminal was implicated.” Gibson v. Fla. Legislative Investigation
Comm., 372 U.S. 539, 572 (1963) (Douglas, J., concurring).
Yet, even if this Court were to assume as a matter of argument that
the Government’s investigative interest in this case was compelling enough
to support a demand for Lavabit’s keys, this demand still cannot pass
“strict scrutiny” given its lack of “narrow tailoring.” In this regard, the
Supreme Court cautions: “It is particularly important that the exercise of
the power of compulsory process be carefully circumscribed when the
investigative process tends to impinge upon such highly sensitive areas as
freedom of speech or press, freedom of political association, and freedom
of communication of ideas….” Sweezy, 354 U.S. at 245.
But the Government’s demand for Lavabit’s keys in this case was
anything but “carefully circumscribed.” Id. To the contrary, this demand
ultimately entailed the Government getting the power to “monitor the …
content of all communications between Lavabit and all of its customers, or
even masquerade as [Lavabit] if it chose to do so.” Appellant’s Br. 7
(emphasis in original). Put another way, with Lavabit’s keys in hand, the

30

Government became able to monitor every Lavabit user’s e-mail without
ever again seeking a court order directed at a specific user.
This demand thus lacks the kind of narrow tailoring that strict
scrutiny calls for. See Casey v. City of Newport, 308 F.3d 106, 114 (1st Cir.
2002) (“[T]he narrow-tailoring test requires … consider[ation] [of] whether
the regulation … sweeps more broadly than necessary to promote the
government’s interest.”) This is especially clear when one considers the
“compromise” that Lavabit proposed and the Government rejected in this
case—a compromise that would have enabled the Government to obtain
the information it wanted while also protecting the privacy of every other
Lavabit user. See Appellant’s Br. 8-9; see also Wis. Action Coalition v. City of
Kenosha, 767 F.2d 1248, 1255 (7th Cir. 1985) (“Obviously, if there exists a
less restrictive method of furthering the legitimate governmental interest,
the regulation in question is not as precise as it could be.”).
Of course, the Government may argue that without Lavabit’s keys, it
potentially stood to lose “some evidence substantially connected to the
compelling objects of [its] investigation.” Bursey v. United States, 466 F. 2d
1059, 1088 (9th Cir. 1972), modified, 863 F.2d 667 (9th Cir. 1988). But this
cannot overcome the reality that with these keys, the Government almost

31

certainly gained “a quantity of information that was none of … [its]
business.” Id. Nor can this overcome the chilling effect that this intrusion
has exerted on online service providers and users alike. See supra Part IV.
This case thus underscores why “[w]hen First Amendment interests are at
stake, the Government must use a scalpel, not an ax.” Id.

32

Conclusion
History teaches us that “unconstitutional practices get their first
footing ... by silent approaches and slight deviations from legal modes of
procedure.” Boyd, 116 U.S. at 635. But so long “[a]s the Constitution
endures, persons in every generation can invoke its principles in their own
search for greater freedom.” Lawrence v. Texas, 539 U.S. 558, 579 (2003).
Appellant stands before this Court seeking such freedom. Amicus now
joins that cause. This Court should reverse the judgments below, and thus
vindicate the efforts of online service providers to protect the political
privacy and the First Amendment rights of their users.
Respectfully submitted,
s/ Mahesha P. Subbaraman

Dated: October 24, 2013

Richard M. Martinez
Mahesha P. Subbaraman
ROBINS, KAPLAN, MILLER &
CIRESI, L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
[phone]
Counsel for Amicus Curiae
Empeopled, LLC

33

Certificate of Compliance
Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned certifies that
this amicus curiae brief complies with all of the applicable type-volume
limitations of Fed. R. App. P. 32(a)(7)(B) and the applicable typeface and
type-style requirements of Fed. R. App. P. 32(a)(5) and (6). This brief was
prepared using a proportionally spaced font (Book Antiqua). Exclusive of
portions exempted by Fed. R. App. P. 32(a)(7)(B)(III), this brief contains
6,793 words, according to the word-count function of the word processor
(Microsoft Word 2010) that was used to prepare this brief.

Dated: October 24, 2013

s/ Mahesha P. Subbaraman
Richard M. Martinez
Mahesha P. Subbaraman
ROBINS, KAPLAN, MILLER &
CIRESI, L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
[phone]
Counsel for Amicus Curiae
Empeopled, LLC

34

Certificate of Service
I hereby certify that on October 24, 2013, I electronically filed the
foregoing document with the United States Court of Appeals for the Fourth
Circuit by using the CM/ECF system. I certify that the following parties or
their counsel of record are registered as ECF Filers and that they will be
served by the CM/ECF system:
Jesse Ryan Binnall
Marcia C. Hofmann
Laurin Howard Mills
Ian James Samuel
David Alan Warrington

James L. Trump
Michael Phillip Ben'Ary

Dated: October 24, 2013

s/ Mahesha P. Subbaraman
Richard M. Martinez
Mahesha Subbaraman
ROBINS, KAPLAN, MILLER &
CIRESI, L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
[phone]
Counsel for Amicus Curiae
Empeopled, LLC

35