In re: Under Seal

Filing 59

MOTION by Amicus Supporting Appellant Empeopled, LLC. in 13-4625 to participate in oral argument. Date and method of service: 12/18/2013 ecf. [999262060] [13-4625, 13-4626] Mahesha Subbaraman

Nos. 13-4625, 13-4626

In the United States Court of Appeals
for the Fourth Circuit
In re: UNDER SEAL
___________________________________________
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
UNDER SEAL 1; UNDER SEAL 2
Parties-in-Interest – Appellants.

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

MOTION OF AMICUS CURIAE EMPEOPLED, LLC
FOR PERMISSION TO PARTICIPATE IN ORAL ARGUMENT
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

Certificate of Notification and Consent
Pursuant to 4th Cir. L.R. 27(a), counsel for amicus curiae Empeopled,
LLC certifies that all parties in this case have been notified of this motion.
In this regard, the parties’ positions on this motion are as follows:
Appellants: Appellants take no position on this motion, but oppose
any reduction in their argument time based on this motion. They do not
intend to file a response unless the Court requests one.
Government: The Government opposes adding additional time to the
40 minutes scheduled by this Court and opposes this motion insofar as it
seeks argument time independent of Appellant’s time. The Government
does not intend to file a response unless the Court requests one.

Dated: December 18, 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

Introduction
In United States v. Under Seal, both Lavabit, LLC and its owner, Ladar
Levison (collectively “Lavabit”), challenge court orders that allowed the
Government to seize Lavabit’s private encryption keys in order to gather
evidence about a single user of Lavabit’s secure e-mail service. As a result
of this seizure, the Government ultimately became able to intercept the
private communications of not just its investigative target but also every
single one of Lavabit’s other 400,000 users—none of whom was under
investigation at the time or otherwise accused of wrongdoing.
On October 25, 2013, this Court accepted an amicus curiae brief from
Empeopled, LLC (“Empeopled”) that was filed in support of Lavabit with
the consent of all parties to this case under Fed. R. App. P. 29(a).
Now, for the reasons set forth below, Empeopled respectfully seeks
the Court’s permission under Federal Rule of Appellate Procedure 29(g) to
participate in oral argument in this case. In particular, Empeopled seeks 5
minutes of argument time, but Empeopled does not seek to intrude on
Lavabit’s argument time. Empeopled also assents to the Government being
given further time for rebuttal if Empeopled’s motion is granted.

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Argument
Empeopled respectfully seeks this Court’s permission to participate
in oral argument in Under Seal because Empeopled speaks for an important
position that is not represented by the parties in this case.
This case turns on the validity of court orders letting the government
seize Lavabit’s private encryption keys and thereby intercept the private emails of Lavabit’s over 400,000 users in the pursuit of a single user. In this
regard, it appears these orders were issued without any First Amendment
review of how they might chill either the efforts of online service providers
to protect their users’ privacy or the free speech and association of these
users. See Appellant’s Br. 2–10 (failing to mention any First Amendment
review undertaken by the District Court); U.S. Br. 1-11 (same).
Yet, in their briefs on the validity of these orders, the parties say
nothing about the First Amendment. See Appellant’s Br. 11–29; Appellant’s
Reply Br. 1-26; U.S. Br. 11-47. The same goes for the other amici in this case.
See ACLU Br. 1-30; EFF Br. 1-26. Instead, the parties and other amici confine
their briefing to addressing the statutory and Fourth Amendment grounds
for the Government’s seizure of Lavabit’s encryption keys.

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Only Empeopled’s brief addresses the chilling effect that the seizure
of Lavabit’s encryption keys entails and how this effect should guide the
Court’s review of this seizure. See Empeopled Br. 7-33. For this reason,
Empeopled submits that its participation at argument in Under Seal would
benefit the Court by providing an unambiguous defense of this view. See
United States v. Dickerson, 166 F.3d 667, 680 n.14 (4th Cir. 1999) (“[F]ederal
courts have frequently appointed amici to participate in oral argument
where neither side will defend an important position.”).
Empeopled recognizes that amici are rarely allowed to argue. But this
case stands to affect how online service providers like Empeopled protect
their users’ privacy—and the resulting speech of these users—for years to
come. Thus, given the vital role of oral argument in this Court, Empeopled
hopes the Court will find for the following reasons that Empeopled’s
participation at oral argument in Under Seal will benefit the Court.
1.

Empeopled speaks for an important and unique position.
Empeopled believes that its participation at oral argument would

assist the Court by giving voice to an important position that none of the
parties or other amici address in this case: that the seizure of Lavabit’s
encryption keys calls for strict-scrutiny review given the chilling effect
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exerted by this seizure on the First Amendment rights of both online
service providers and their users. See Empeopled Br. 11-33; cf. Appellant’s
Br. 11–29; U.S. Br. 11-47. ACLU Br. 1-30; EFF Br. 1-26.
This Court has previously noted the importance and decisive nature
of this position. For example, in In re Grand Jury Subpoena: Subpoena Duces
Tecum, this Court reversed a district court’s denial of a motion to quash
“overly broad subpoenas duces tecum directed to material presumptively
protected under the [F]irst [A]mendment.” 829 F.2d 1291, 1299-1300 (4th
Cir. 1987), rehearing denied, 844 F.2d 202, 203 (4th Cir. 1988). As this Court
concluded: “When governmental searches trench on [F]irst [A]mendment
concerns, courts have been careful to scrutinize the searches much more
closely than the district court did in this case.” Id. at 1300.
In the present case, it appears the District Court did not consider the
First Amendment concerns trenched upon by the government’s search of
Lavabit’s e-mail service—certainly not before ordering Lavabit to hand
over encryption keys capable of unlocking the past, present, and future
communications of Lavabit’s over 400,000 users. By contrast, consider the
careful balancing of First Amendment interests that the Western District of
Wisconsin undertook in deciding whether to quash a grand jury subpoena
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seeking information from online retailer Amazon about one of its users,
Robert D’Angelo, “a prolific seller of used books on Amazon.” In re Grand
Jury Subpoena to Amazon.com, 246 F.R.D. 570, 571 (W.D. Wis. 2007).
D’Angelo was suspected of tax evasion and fraud via his “sale of
about 24,000 used books” through Amazon’s website. Id. at 571. The grand
jury thus “directed Amazon to provide virtually all of its records regarding
D’Angelo, including the identities of the thousands of customers who had
bought used books from D’Angelo.” Id. The government subsequently
reduced this request “to the identification of 120 book buyers.“ Id. In the
end, “Amazon willingly provided most of the requested information but it
. . . refused to identify any book buyers to the government, citing the
buyers’ First Amendment right to maintain the privacy of their reading
choices.” Id. at 572. The government objected to this refusal. See id.
In turn, even though the district court noted “[t]he government does
not suspect Amazon or D’Angelo’s customers of any wrongdoing,” the
court explained its concern over the First Amendment:
This [case] presents a legitimate First Amendment
concern. The subpoena is troubling because it
permits the government to peek into the reading
habits of specific individuals without their prior
knowledge or permission. True, neither the
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government nor the grand jury is directly interested
in the actual titles or content of the books that
people bought, and I have enormous trust in the
prosecutors and agents handling this investigation,
with whom this court has worked many times
before. But it is an unsettling and un-American
scenario to envision federal agents nosing through
the reading lists of law-abiding citizens while
hunting for evidence against somebody else.
Id. at 571-73. The court then noted that “if word were to spread over the
Net—and it would—that the FBI and the IRS had demanded and received
Amazon's list of customers and their personal purchases, the chilling effect
on expressive e-commerce would frost keyboards across America.” Id. at
573. Thus, recognizing that “rumors of an Orwellian federal criminal
investigation into the reading habits of Amazon's customers could frighten
countless potential [Amazon] customers into canceling planned online
book purchases,” the court held that “[t]his First Amendment concern is a
factor for the court to consider when determining whether to require
compliance with the subpoena as currently configured.” Id.
Based on this concern, the court modified the subpoena. Finding that
“the government is not entitled to unfettered access to the identities of even
a small sample of . . . book buyers without each book buyer’s permission,”
the court ordered the creation of “a filtering mechanism” that would invite
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“volunteer witnesses from the enormous pool of customers who bought
used books from D'Angelo.” Id. at 573. The court also held that “[a]nyone
who wishes not to participate in this exercise, by virtue of his or her silence,
will be left alone.” Id. at 573-74. The court accordingly struck a critical
balance between the government’s investigative needs and the valid First
Amendment concerns of both Amazon and its customers.
The need for such balancing in the present case is no different—
especially given the chilling effect that is inherent in the notion of mass
interception of private e-mails by the government, regardless of whether
these e-mails are being read by a government agent or a government
computer.1 See Empeopled Br. 21-24; cf. U.S. Br. 12, 43. The significance of
this reality is not fully appreciable, however, unless the First Amendment
concerns raised by this case are considered. Since none of the parties has
briefed these concerns, however, the Court is without an effective advocate
for this vital position at oral argument. Therefore, given this Court’s prior

A recent study published by the PEN American Center—a leading
literary and human rights organization—in November 2013 reflects this
point. See PEN AMERICAN CENTER, CHILLING EFFECTS: NSA SURVEILLANCE
DRIVES U.S. WRITERS TO SELF-CENSOR (2013), http://www.pen.org/sites/
default/files/Chilling%20Effects_PEN%20American.pdf.
1

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observation that it is “benefitted by an adversary presentation of the
issues,” Alitzer v. Deeds, 191 F.3d 540, 543 n.7 (4th Cir. 1999), Empeopled
respectfully submits that its participation at argument in this case would
aid the Court under circumstances “where neither side [has] defend[ed] an
important position” on appeal. Dickerson, 166 F.3d at 680 n.14.

2.

Empeopled’s position may still be heard at oral argument
even if it was not considered by the District Court.
Empeopled recognizes this request to participate in oral argument

rests on First Amendment concerns that the District Court likely did not
consider. Nevertheless, since the general validity of the District Court’s
orders allowing the seizure of Lavabit’s keys “is properly before the court,”
this Court “retains the independent power to identify and apply the proper
law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991).
But should the Court credit any of the waiver-based arguments that
the Government raises regarding the procedural posture of this case (see
U.S. Br. 13-14), then Empeopled respectfully submits that this Court may
still reach the important First Amendment position described herein as a
matter of fundamental justice. As the Supreme Court has held: “There may
always be exceptional cases or particular circumstances which will prompt

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a[n] . . . appellate court, where injustice might otherwise result, to consider
questions of law which were neither pressed nor passed upon by the court
. . . below.” Hormel v. Helvering, 312 U.S. 552, 557 (1941).
As such, there are at least four “particular circumstances” that favor
review of the First Amendment concerns raised by Empeopled here. First,
the Government’s seizure of Lavabit’s encryption keys affected the private
communications of over 400,000 people and resulted in a chilling effect felt
across the Internet. See Empeopled Br. 21-24. Second, the Government
pursued its seizure of Lavabit’s encryption keys in secret, effectively
preventing Lavabit’s law-abiding users from raising First Amendment
challenges to the interception of their e-mails. See id. at 28-29. Third, for
much of the proceedings below, Lavabit was acting pro se and thus lacked
the benefit of legal counsel to raise a First Amendment challenge. See
Appellant’s Reply Br. 3-6. Fourth, at the very heart of this case is a
technology—encryption—that is of vital First Amendment importance, as
recent comments by Google chairman Eric Schmidt illustrate.2

See Chris Strohm, Google’s Schmidt Sees Encryption Killing Censorship,
BLOOMBERG, Nov. 20, 2013, http://www.bloomberg.com/news/2013-1121/google-s-schmidt-sees-encryption-killing-censorship.html.
2

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Based on these circumstances, this Court should reach Empeopled’s
First Amendment position. See Wash. Gas Light Co. v. Va. Elec. & Power Co.,
438 F.2d 248, 251 (4th Cir. 1971) (“[T]o reach the correct result, an appellate
court may sua sponte consider points not presented to the district court and
not even raised on appeal by any party.”); see also Curtis Publ’g Co. v. Butts,
388 U.S. 130, 144-45 (1967) (plurality opinion) (rejecting alleged waiver of
First Amendment defense “where the ultimate effect of sustaining a claim
of waiver might be an imposition on that valued freedom”); Sid & Marty
Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1169 n.14 (9th
Cir. 1977) (reaching First Amendment claim “never raised in the court
below” where it “would affect . . . the standard of review”).

Conclusion
Empeopled raises an important First Amendment position in this
case that would help the Court in deciding the validity of the encryptionkey seizure at issue—a perspective that none of the parties or other amici
advance in their briefing. For this reason, and based on the argument
above, Empeopled respectfully seeks 5 minutes of time during the oral
argument in Under Seal now scheduled for January 28, 2014.

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Respectfully submitted,
Dated: December 18, 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

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Certificate of Service
I hereby certify that on December 18, 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 further certify that all of the parties
to this case or their counsel of record are registered as ECF Filers and that
they will be served by the CM/ECF system.

s/ Mahesha P. Subbaraman

Dated: December 18, 2013

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

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