In re: Under Seal

Filing 66

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-sw-00522-CMH-1,1:13-dm-00022-CMH-1. [999337217]. [13-4625, 13-4626] (RW)

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4625

In Re:

UNDER SEAL

-----------------------------UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LAVABIT, LLC.; LADAR LEVISON,
Parties-in-Interest – Appellants.
------------------------------AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES
UNION OF VIRGINIA; EMPEOPLED, LLC.; ELECTRONIC FRONTIER
FOUNDATION,
Amici Supporting Appellants.

No. 13-4626

In Re:

GRAND JURY PROCEEDINGS

-----------------------------UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.

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LAVABIT, LLC.; LADAR LEVISON,
Parties-in-Interest – Appellants.
-----------------------------AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES
UNION OF VIRGINIA; EMPEOPLED, LLC.; ELECTRONIC FRONTIER
FOUNDATION,
Amici Supporting Appellants.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Claude M. Hilton, Senior
District Judge. (1:13−sw−00522−CMH−1; 1:13−dm−00022−CMH−1)
Argued:

January 28, 2014

Decided:

April 16, 2014

Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Niemeyer and Judge Gregory joined.

ARGUED: Ian James Samuel, New York, New York, for Appellants.
Andrew
Peterson,
OFFICE
OF
THE
UNITED
STATES
ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Jesse R. Binnall,
BRONLEY & BINNALL, PLLC, Fairfax, Virginia; Marcia Hofmann, LAW
OFFICE OF MARCIA HOFMANN, San Francisco, California; David
Warrington, Laurin Mills, LECLAIRRYAN, Alexandria, Virginia, for
Appellants.
Mythili Raman, Acting Assistant Attorney General,
Criminal Division, Nathan Judish, Josh Goldfoot, Benjamin
Fitzpatrick, Brandon Van Grack, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Dana J. Boente, Acting United States
Attorney, Michael Ben’Ary, James L. Trump, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Alexander
A. Abdo, Brian M. Hauss, Catherine Crump, Nathan F. Wessler, Ben
Wizner, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New
York; Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION OF
VIRGINIA
FOUNDATION,
INC.,
Richmond,
Virginia,
for
Amici
American Civil Liberties Union and ACLU of Virginia.
Kurt
Opsahl, Jennifer Lynch, Hanni Fakhoury, ELECTRONIC FRONTIER
2

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FOUNDATION, San Francisco, California, for Amicus Electronic
Frontier
Foundation.
Richard
M.
Martinez,
Mahesha
P.
Subbaraman,
ROBINS,
KAPLAN,
MILLER
&
CIRESI,
L.L.P.,
Minneapolis, Minnesota, for Amicus Empeopled, LLC.

3

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AGEE, Circuit Judge:
Lavabit LLC is a limited liability company that provided
email service.

Ladar Levison is the company’s sole and managing

member. 1
In

2013,

the

United

States

sought

to

obtain

certain

information about a target 2 in a criminal investigation.

To

further that goal, the Government obtained court orders under
both the Pen/Trap Statute, 18 U.S.C. §§ 3123-27, and the Stored
Communications Act, 18 U.S.C. §§ 2701-12, requiring Lavabit to
turn over particular information related to the target.
Lavabit

and

district

court

sanctions.
For

Levison
held

failed
them

to
in

comply

with

contempt

and

those

When

orders,

imposed

the

monetary

Lavabit and Levison now appeal the sanctions.

the

reasons

below,

we

affirm

the

judgment

of

the

district court.

1

The record does not reflect the state of Lavabit’s
organization or registration to do business.
Neither does the
record contain documents that verify the ownership of Lavabit’s
membership interests or the identity of its managing member.
The parties and the district court assumed below that Lavabit
and Levison were “[o]ne and the same.” (J.A. 115.) As no party
has indicated otherwise, we will also assume that Levison owns
all interests in Lavabit and is fully authorized to act in all
matters on Lavabit’s behalf.
2

Because of the nature of the underlying criminal
investigation, portions of the record, including the target’s
identity, are sealed.
4

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I.
A.
This case concerns the encryption processes that Lavabit
used while providing its email service.
the

process

through

“plaintext,”

is

which

converted

readable

into

jumble of letters and numbers.
process

of

changing

Encryption describes
data,

often

“ciphertext,”

an

called

unreadable

Decryption describes the reverse

ciphertext

back

into

plaintext.

Both

processes employ mathematical algorithms involving “keys,” which
facilitate

the

change

of

plaintext

into

ciphertext

and

back

its

paid

again.
Lavabit

employed

subscribers:

two

storage

stages

of

encryption

encryption

and

for

transport

encryption.

Storage encryption protects emails and other data that rests on
Lavabit’s

servers.

Theoretically,

no

person

other

than

email user could access the data once it was so encrypted.

the
By

using storage encryption, Lavabit held a unique market position
in the email industry, as many providers do not encrypt stored
data.
Although
this

Lavabit’s

use

of

storage

encryption

case

primarily

concerns

Lavabit’s

encryption,

transport

encryption.

This

encryption

protects

data

as

it

moves

in

second

more

was

stage

common

transit

novel,

form

between

of
of
the

client and the server, creating a protected transmission channel
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for internet communications.

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Transport encryption protects not

just email contents, but also usernames, passwords, and other
sensitive

information

encryption,

internet

as

it

moves.

communications

Without
move

this

exposed

type

of

en

route

to

their destination, allowing outsiders to “listen in.”

Transport

encryption also authenticates -- that is, it helps ensure that
email clients and servers are who they say they are, which in
turn

prevents

unauthorized

parties

from

exploiting

the

data

channel.
Like

many

online

companies,

Lavabit

used

an

industry-

standard protocol called SSL (short for “Secure Sockets Layer”)
to encrypt and decrypt its transmitted data.

SSL relies on

public-key or asymmetric encryption, in which two separate but
related keys are used to encrypt and decrypt the protected data.
One key is made public, while the other remains private.

In

Lavabit’s process, email users would have access to Lavabit’s
public keys, but Lavabit would retain its protected, private
keys.

This technology relies on complex algorithms, but the

basic idea is akin to a self-locking padlock: if Alice wants to
send a secured box to Bob, she can lock the box with a padlock
(the public key) and Bob will open it with his own key (the

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private key).

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Anyone can lock the padlock, but only the key-

holder can unlock it. 3
The

security

advantage

that

SSL

offers

disappears

third party comes to possess the private key.
third

party

holding

a

private

key

could

if

a

For example, a

read

the

encrypted

communications tied to that key as they were transmitted.

In

some circumstances, a third party might also use the key to
decrypt

past

communications

(although

technologies can thwart that ability).

some

available

And, with the private

key in hand, the third party could impersonate the server and
launch a man-in-the-middle attack.
When a private key becomes anything less than private, more
than

one

user

may

be

compromised.

Like

some

other

email

providers, Lavabit used a single set of SSL keys for all its
various

subscribers

for

technological

and

financial

reasons.

Lavabit in particular employed only five key-pairs, one for each

3

Our description oversimplifies a very complicated process
that can vary depending on what cipher suites and protocols are
used.
In reality, a client and a server engage in an SSL
“handshake” involving several different communication steps
between the client and the server: initial “hellos,” server
authentication using an SSL certificate, potential client
authentication, sending (by the client) and decryption (by the
server) of a pre-master secret, generation of a master secret,
generation of session keys, and formal completion of the
handshake.
Later communications within the same session then
use the generated session keys to both encrypt and decrypt all
the information transmitted during the session.
It is also
possible to conduct an abbreviated handshake.
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of the mail protocols that it supported. 4

As a result, exposing

one key-pair could affect all of Lavabit’s estimated 400,000plus email users.

B.
With this technical background in mind, we turn to the case
before us.

1.
On June 28, 2013, the Government sought and obtained an
order (“the Pen/Trap Order”) from a magistrate judge authorizing
the placement of a pen register and trace-and-trap device on
Lavabit’s system.

This “pen/trap” device is intended to allow

the Government to collect certain information, on a real-time
basis, related to the specific investigatory target’s Lavabit
email account. 5

In accordance with the Pen/Trap Statute, 18

U.S.C. §§ 3121–27, the Pen/Trap Order permitted the Government
to “capture all non-content dialing, routing, addressing, and
4

Email protocols are the technical means by which users and
servers transmit messages over a network.
A given user may
choose to use one of a variety of email protocols, so Lavabit
was equipped to handle that choice.
5

A pen register captures outgoing signaling and addressing
information, while a trap/trace device captures that information
for incoming messages.
See 18 U.S.C. § 3127(3), (4).
As to
email, the same device often performs both functions and is
frequently referred to as a pen/trap device.
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signaling information . . . sent from or sent to” the target’s
account.

(J.A.

10.)

In

other

words,

the

Pen/Trap

Order

authorized the Government to collect metadata 6 relating to the
target’s account, but did not allow the capture of the contents
of the target’s emails.

The Pen/Trap Order further required

Lavabit to “furnish [to the Government] . . . all information,
facilities, and technical assistance necessary to accomplish the
installation and use of the pen/trap device unobtrusively and
with minimum interference.”

(J.A. 11.)

On the same day that the Pen/Trap Order issued, FBI agents
met with Levison, who indicated that he did not intend to comply
with the order.

Levison informed the agents that he could not

provide the requested information because the target-user “had
enabled Lavabit’s encryption services,” presumably referring to
Lavabit’s storage encryption.

(J.A. 7.)

But, at the same time,

Levison led the Government to believe that he “had the technical
capability to decrypt the [target’s] information.”

(J.A. 6.)

Nevertheless, Levison insisted that he would not exercise that

6

Metadata, sometimes called envelope information, describes
“the how, when, and where of the message.”
Orin S. Kerr, The
Next Generation Communications Privacy Act, 162 U. Pa. L. Rev.
373, 384 (2014). It includes “IP addresses, to-from information
on emails, login times, and locations.” Id. The Pen/Trap Order
described what specific metadata the Government was authorized
to collect.
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ability

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because

system.’”

“Lavabit

did

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not

want

to

‘defeat

[its]

own

(J.A. 6.)

In view of Levison’s response, the Government obtained an
additional order that day compelling Lavabit to comply with the
Pen/Trap

Order.

This

“June

28

Order,”

again

issued

by

a

magistrate judge, instructed Lavabit to “provide the [FBI] with
unencrypted
reiterated

data
that

pursuant
Lavabit

to

was

the
to

[Pen/Trap]

provide

“any

Order”

and

information,

facilities, or technical assistance . . . under the control of
Lavabit . . . [that was] needed to provide the FBI with the
unencrypted data.”

(J.A. 9.)

Further, the June 28 Order put

Lavabit and Levison on notice that any “[f]ailure to comply”
could result in “any penalty within the power of the Court,
including the possibility of criminal contempt of Court.”

(J.A.

9.)

2.
Over the next eleven days, the Government attempted to talk
with Levison about implementing the Pen/Trap Order.

Levison,

however, ignored the FBI’s repeated requests to confer and did
not give the Government the unencrypted data that the June 28
Order required.

As each day passed, the Government lost forever

the ability to collect the target-related data for that day.

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Because Lavabit refused to comply with the prior orders,
the Government obtained an order to show cause from the district
court on July 9.

The show cause order directed both Lavabit and

Levison, individually, to appear and “show cause why Lavabit LLC
ha[d] failed to comply with the orders entered June 28, 2013[]
in this matter and why [the] Court should not hold Mr. Levison
and

Lavabit

LLC

in

contempt

for

resist[a]nce to these lawful orders.”

its

disobedience

(J.A. 21.)

and

Entry of the

show cause order spurred a conference call between Levison, his
counsel, and representatives from the Government on July 10.
During that call, the parties discussed how the Government could
install the pen/trap device, what information the device could
capture, and how the Government could view and preserve that
information.
would

provide

In addition, the Government asked whether Levison
the

keys

encrypted information.

necessary

to

decrypt

the

target’s

Although the Government again stressed

that it was permitted to collect only non-content data, neither
Levison nor his counsel indicated whether Lavabit would allow
the Government to install and use the pen/trap device. 7

7

Levison contacted the Government the day after the July 10
call to say that he would not appear at the show cause hearing
unless the Government reimbursed his travel expenses.
In
response, the Government issued a grand jury subpoena to
Levison, which permitted it to cover his expenses.
That
subpoena, which was later withdrawn, also required Levison to
produce Lavabit’s encryption keys.
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On July 13, 2013, four days after the show cause order
issued, Levison contacted the Government with his own proposal
as

to

how

he

would

comply

with

the

court’s

orders.

In

particular, Levison suggested that Lavabit would itself collect
the Government’s requested data:
I now believe it would be possible to capture the
required data ourselves and provide it to the FBI.
Specifically the information we’d collect is the login
and subsequent logout date and time, the IP address
used to connect to the subject email account and
[several] non-content headers . . . from any future
emails sent or received using the subject account. . .
. Note that additional header fields could be captured
if provided in advance of my implementation effort.
(J.A. 83.) Levison conditioned his proposal with a requirement
that

the

Government

pay

him

$2,000

for

his

services.

More

importantly, Levison also intended to provide the data only “at
the conclusion of the 60[-]day period required by the [Pen/Trap]
Order . . . [or] intermittently[,] . . . as [his] schedule
allow[ed].”

(J.A. 83.)

If the Government wanted daily updates,

Levison demanded an additional $1,500. 8
The Government rejected Levison’s proposal, explaining that
it

needed

Moreover,

“real-time
the

transmission

Government

would

8

of

have

results.”
no

means

(J.A.
to

verify

83.)
the

Although the Pen/Trap Order authorized compensation for
“reasonable expenses” to Lavabit (J.A. 11), neither Lavabit nor
Levison ever requested compensation from the district court.
Levison also did not attempt to show the Government that his
proposed fees were requests for “reasonable expenses” that could
be reimbursed.
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accuracy of the information that Lavabit proposed to provide

--

a concerning limit given Lavabit’s apparent hostility toward the
Government.

Levison responded by insisting that the Pen/Trap

Order did not require real-time access, but did not otherwise
attempt to comply with the Pen/Trap Order or the June 28 Order.

3.
On July 16, 2013, three days after the Government received
Levison’s proposal and the same day as the show cause hearing,
the

Government

court

under

obtained

the

a

Stored

seizure

warrant

Communications

Act

from

the

district

(“SCA”).

See

18

U.S.C. §§ 2701-12.

The seizure warrant provided that Lavabit

was

over

“[a]ll

sent

to

to

turn

communications

or

information
from

[the

necessary

target’s]

to

Lavabit

account . . ., including encryption keys and SSL keys.”
27.)

In

addition,

the

warrant

covered

decrypt

“[a]ll

email
(J.A.

information

necessary to decrypt data stored in or otherwise associated with
[the target’s] Lavabit account.”

13

(J.A. 27.)

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4.
On July 16, Levison appeared before the district court pro
se, 9

on

behalf

hearing.

of

himself

and

Lavabit,

for

the

show

cause

When asked whether he planned to comply with the

Pen/Trap Order, Levison responded that he had “always agreed to
the

installation

of

the

pen

register

device.”

(J.A.

42.)

Nonetheless, Levison objected to turning over his private SSL
encryption keys “because that would compromise all of the secure
communications in and out of [his] network, including [his] own
administrative traffic.”

(J.A. 42.)

He also maintained that

“[t]here was never an explicit demand [from the Government] that
[he] turn over the keys.”
The
whether

district
the

Pen/Trap

encryption keys.
Order’s

court

(J.A. 45.)
and

Order

the

parties

required

initially

Lavabit

to

discussed

produce

its

The district court observed that the Pen/Trap

“technical

assistance”

provision

may

or

may

not

encompass the keys, but it declined to reach the issue during
the show cause hearing “because [he had] issued a search warrant
for that.”

(J.A. 43.)

The Government agreed that it had sought

the seizure warrant to “avoid litigating [the] issue” of whether
the Pen/Trap Order reached the encryption keys (J.A. 43), but

9

The record does not reflect why Lavabit and Levison’s
prior counsel was no longer representing them.
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contended

that

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the

Pen/Trap

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Order

and

the

June

28

Order

“required the encryption keys to be produced” (J.A. 45).
After

Levison

assured

the

district

court

that

he

would

permit the Government to install a pen/trap device on Lavabit’s
system, the district court did not inquire further into whether
Levison would turn over his encryption keys.
concluded

that

it

need

not

yet

resolve

The district court
the

matter

because

Levison had not been served with the seizure warrant and had not
been called before the grand jury (as was anticipated by the
then-outstanding grand jury subpoena).

The district court then

scheduled another hearing for July 26 to confirm that Lavabit
had fully complied.
After
Government

the
to

show

cause

install

a

hearing,

pen/trap

Lavabit

device.

did
But,

permit

the

without

the

encryption keys, much of the information transmitted to and from
Lavabit’s
useless.

servers

remained

encrypted,

indecipherable,

and

The pen/trap device was therefore unable to identify

what data within the encrypted data stream was target-related
and properly collectable.

5.
Shortly before the scheduled hearing on compliance, Lavabit
and Levison, now again represented by counsel, moved to quash
the seizure warrant.

In relevant part, their motion argued that
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the warrant (1) amounted to an impermissible general warrant
barred

by

the

information;

Fourth

and

(3)

Amendment;

imposed

an

(2)

undue

sought
burden

immaterial

on

Lavabit’s

business.
In

response,

the

Government

contended

that

the

warrant

merely “re-state[d] and clarif[ied] Lavabit’s obligations under
the Pen-Trap Act to provide that same information.”
The

Government

noted

that

four

different

legal

(J.A. 86.)
obligations,

including the Pen/Trap Order and the June 28 Order, required
Lavabit to produce the encryption keys.

Lavabit’s motion to

quash, however, did not mention either the Pen/Trap Order or the
June 28 Order.

6.
On August 1, over a month after the Pen/Trap Order first
issued, the district court held its second hearing. 10

The court

remarked that “[t]he difficulty or the ease in obtaining the
information [didn’t] have anything to do with whether or not the
government’s
108.)

lawfully

entitled

to

that

information.”

For that reason, the district court denied the motion to

quash the Government’s “very narrow, specific” warrant.
108.)

(J.A.

(J.A.

The court also found it reasonable that the Government

10

Nothing in the record indicates why the hearing,
originally set for July 26, 2013, was delayed to August 1.
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would not collect all users’ data, even if the encryption keys
would practically enable the Government to access all that data.
The district court then entered an order (the “August 1
Order”) directing Lavabit to turn over its encryption keys.

The

order further instructed Lavabit to provide the Government “any
other

‘information,

facilities,

and

technical

assistance

necessary to accomplish the installation and use of the pen/trap
device’ as required by the July 16, 2013 seizure warrant and the
[Pen/Trap Order].”

(J.A. 118–19.) The August 1 Order directed

Lavabit and Levison to turn over the encryption keys by 5:00 pm
on August 2, 2013.

7.
Despite the unequivocal language of the August 1 Order,
Lavabit dallied and did not comply.

Just before the 5:00 pm

August 2 deadline, for instance, Levison provided the FBI with
an 11-page printout containing largely illegible characters in
4-point type, which he represented to be Lavabit’s encryption
keys.

The Government instructed Lavabit to provide the keys in

an industry-standard electronic format by the morning of August
5.

Lavabit did not respond.
On August 5, nearly six weeks after the Government first

obtained the Pen/Trap Order, the Government moved for sanctions
against Levison and Lavabit for their continuing “failure to
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comply with [the] Court’s order entered August 1.”

(J.A. 120.)

The Government sought penalties of $5,000 a day until Lavabit
provided the encryption keys to the Government.

The district

court granted the motion for sanctions that day.
Two

days

Government.

later,

By

that

Levison
time,

six

provided

the

keys

weeks

data

regarding

of

to

the
the

target had been lost. 11

8.
Lavabit
jurisdiction
Myers,

593

and

Levison

under
F.3d

28

338,

timely

U.S.C.
344

§

n.9

appealed,

1291.
(4th

See
Cir.

and

United

2010)

we

have

States

(“[A]

v.

civil-

contempt order may be immediately appealed by a non[-]party [to
the underlying action].”); see also Buffington v. Balt. Cnty.,
Md., 913 F.2d 113, 133 (4th Cir. 1990) (explaining that civil
contempt includes “a fine that would be payable to the court . .
.

when

the

[contemnor]

can

avoid

paying

the

fine

simply

by

performing the affirmative act required by the court’s order”).
We further note that the appeal presents a live controversy even

11

After Levison provided the keys to the Government, he
also shut Lavabit down entirely. In a public statement, Levison
did not reveal the specific reasons behind his decision to close
Lavabit.
He did post, however, a statement on the Lavabit
website explaining that he would not “become complicit in crimes
against the American people.”
Lavabit, http://www.lavabit.com
(last visited Mar 3, 2014).
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though Lavabit has now complied with the underlying orders, as
Lavabit and Levison still face potential assessments based on
their conduct in refusing to comply with the district court’s
orders.

See In re Grand Jury Subpoena (T-112), 597 F.3d 189,

195 (4th Cir. 2010).

II.
A.
As a party appealing from a civil contempt order, Lavabit 12
may ask us to consider “whether contempt was proper” and may
challenge
“earlier

“the

order

appellate

alleged

review

Myers, 593 F.3d at 344.
ultimate

decision

as

to

to

was

have

been

available.”

violated”
United

unless

States

v.

In the ordinary case, we review the
whether

the

contempt

was

proper

for

abuse of discretion, the underlying legal questions de novo, In
re

Grand

Jury

Subpoena,

597

F.3d

at

195,

and

any

factual

findings for clear error, Oaks of Mid City Resident Council v.
Sebelius, 723 F.3d 581, 584 (5th Cir. 2013); cf. United States
v.

Peoples,

698

F.3d

criminal contempt).

185,

189

(4th

Cir.

2012)

(same

as

to

Lavabit failed, however, to raise most of

12

For simplicity’s sake, we refer only to “Lavabit” for the
remainder of the opinion.
That term, however, includes both
Lavabit and Levison unless the context reflects otherwise.
19

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its present arguments before the district court; that failure
significantly alters the standard of review.

B.
In

the

district

court,

Lavabit

failed

to

challenge

the

statutory authority for the Pen/Trap Order, or the order itself,
in any way.

Yet on appeal, Lavabit suggests that the district

court’s demand for the encryption keys required more assistance
from

it

than

the

Pen/Trap

Statute

requires.

Lavabit

never

mentioned or alluded to the Pen/Trap Statute below, much less
the district court’s authority to act under that statute.

In

fact, with the possible exception of an undue burden argument
directed at the seizure warrant, Lavabit never challenged the
district

court’s

authority

to

act

under

either

the

Pen/Trap

Statute or the SCA.
“The matter of what questions may be taken up and resolved
for

the

first

time

on

appeal

is

one

left

primarily

to

the

discretion of the courts of appeals, to be exercised on the
facts of individual cases.” Singleton v. Wulff, 428 U.S. 106,
121

(1976).

sparingly.

In

this

circuit,

we

exercise

that

discretion

Our settled rule is simple: “[a]bsent exceptional

circumstances, . . . we do not consider issues raised for the
first time on appeal.”

Robinson v. Equifax Info. Servs., LLC,

560 F.3d 235, 242 (4th Cir. 2009); see also Agra, Gill & Duffus,
20

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Inc. v. Benson, 920 F.2d 1173, 1176 (4th Cir. 1990) (“We will
not

accept

on

appeal

theories

that

were

not

raised

in

the

district court except under unusual circumstances.”).
When a party in a civil case fails to raise an argument in
the lower court and instead raises it for the first time before
us, we may reverse only if the newly raised argument establishes
“fundamental error” or a denial of fundamental justice.
v. Hall, 770 F.2d 1267, 1271 (4th Cir. 1985).

Stewart

“Fundamental

error” is “more limited” than the “plain error” standard that we
apply in criminal cases.

Id.; accord Shcherbakovskiy v. Da Capo

Al Fine, Ltd., 490 F.3d 130, 142 (2d Cir. 2007) (“To meet this
[fundamental error] standard, a party must demonstrate even more
than is necessary to meet the plain error standard in a criminal
trial.”).

So, when a party in a civil case fails to meet the

plain-error standard, we can say with confidence that he has not
established fundamental error.

See, e.g., In re Celotex Corp.,

124

1997)

F.3d

619,

631

(4th

Cir.

(describing

the

criminal

plain-error standard as a “minimum” standard that must be met
before undertaking discretionary review of a waived argument in
a civil case). 13

13

Two things might explain the higher standard that applies
in civil cases.
First, “Federal Rule of Criminal Procedure
52(b) affords federal appellate courts the discretion to correct
certain forfeited errors in the criminal context,” but in the
civil context (excepting jury instructions), “such discretion is
(Continued)
21

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Thus,

we

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may

use

the

Pg: 22 of 41

criminal,

plain-error

standard

-–

articulated by United States v. Olano, 507 U.S. 705, 730 (1993)
–- as something of an intermediate step in a civil case.

See,

e.g., Brickwood Contractors, Inc. v. Datanet Eng’g, Inc., 369
F.3d 385, 396 (4th Cir. 2004) (applying Olano standard in civil
case).

Under that familiar standard, we cannot reverse if the

party fails to establish: “(1) there is an error; (2) the error
is plain; (3) the error affects substantial rights; and (4) the
court determines . . . that the error seriously affects the
fairness,

integrity

proceedings.”
showing

or

public

reputation

Celotex, 124 F.3d at 630-31.

needed

for

“[p]lain

error

of

judicial

Even the lesser

review

is

strictly

circumscribed, and meeting all four prongs is difficult, as it
should be.”

United States v. Byers, 649 F.3d 197, 213 (4th Cir.

2011) (quotation marks and alteration omitted).
We employ these rules not to trap unwary litigants, but to
advance several important and “obvious” purposes.

Wheatley v.

Wicomico Cnty., Md., 390 F.3d 328, 335 (4th Cir. 2004).

Among

judicially created.”
Celotex, 124 F.3d 619, 630 n.6 (4th Cir.
1997).
As a judicial construction, it should be narrowly
construed. Cf. In re ESA Envtl. Specialists, Inc., 70 F.3d 388,
394 n.5 (4th Cir. 2013) (stating that a “judicially created
exception” to a rule should be “narrowly construed”).
Second,
plain-error review arose in the criminal context to protect the
defendant’s
“substantial
liberty
interests,”
but
“[s]uch
interests normally are not at stake in civil litigation.” Deppe
v. Tripp, 863 F.2d 1356, 1364 (7th Cir. 1988).
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other things, forfeiture and waiver rules offer “respect for the
[integrity of the] lower court, [avoid] unfair surprise to the
other

party,

and

[acknowledge]

the

need

for

litigation and conservation of judicial resources.”

finality

in

Holly Hill

Farm, 447 F.3d at 267.

Our sister circuits have suggested other

reasons

waiver

beyond

these:

rules

ensure

that

the

parties

develop the necessary evidence below, In re Diet Drugs Prod.
Liab. Litig., 706 F.3d 217, 226 (3d Cir. 2013), and “prevent
parties

from

getting

two

bites

at

the

apple

by

raising

two

distinct arguments,” Fleishman v. Cont’l Cas. Co., 698 F.3d 598,
608 (7th Cir. 2012); see also HTC Corp. v. IPCom GmbH & Co., KG,
667 F.3d 1270, 1282 (Fed. Cir. 2012) (collecting cases).

The

Supreme Court has likewise warned us not to lightly dismiss the
many interests underlying preservation requirements.

See, e.g.,

Wood v. Milyard, 132 S. Ct. 1826, 1834 (2012) (“Due regard for
the

trial

court’s

consideration

processes

appellate

and

courts

time

should

investment
not

is

also

overlook.”);

a

Exxon

Shipping Co. v. Baker, 554 U.S. 471, 487 n.6 (2008) (“[T]he
complexity of a case does not eliminate the value of waiver and
forfeiture rules, which ensure that parties can determine when
an issue is out of the case, and that litigation remains, to the
extent possible, an orderly progression.”).
Forfeiture and waiver principles apply with equal force to
contempt proceedings.

See, e.g., In re Gates, 600 F.3d 333, 337
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(4th Cir. 2010) (applying plain-error standard to unpreserved
claim of error in criminal contempt proceedings); United States
v. Neal, 101 F.3d 993, 996 (4th Cir. 1996) (same).
“[t]he

axiom

that

an

appellate

court

will

If anything,

not

ordinarily

consider issues raised for the first time on appeal takes on
added significance in the context of contempt.”

In re Bianchi,

542 F.2d 98, 100 (1st Cir. 1976) (internal citation omitted).
After all, “[d]enying the court of which [a party] stands in
contempt the opportunity to consider the objection or remedy is
in

itself

a

contempt

of

[that

obstruction of its processes.”

Id.

court’s]

authority

and

an

(quotation marks omitted).

C.
Lavabit argues that it preserved an appellate challenge to
the Pen/Trap Order when Levison objected to turning over the
encryption keys at the initial show cause hearing.

We disagree.

In making his statement against turning over the encryption
keys

to

the

Government,

Levison

offered

only

a

one-sentence

remark: “I have only ever objected to turning over the SSL keys
because that would compromise all of the secure communications
in

and

out

traffic.”

of

my

network,

(J.A. 42.)

including

my

own

administrative

This statement -- which we recite here

verbatim -- constituted the sum total of the only objection that
Lavabit

ever

raised

to

the

turnover
24

of

the

keys

under

the

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Pen/Trap Order.

Pg: 25 of 41

We cannot refashion this vague statement of

personal preference into anything remotely close to the argument
that

Lavabit

now

raises

on

appeal:

a

statutory-text-based

challenge to the district court’s fundamental authority under
the Pen/Trap Statute.

Levison’s statement to the district court

simply

personal

reflected

Pen/Trap

Order,

his
not

his

angst

present

over

complying

appellate

with

argument

the
that

questions whether the district court possessed the authority to
act at all.
Arguments raised in a trial court must be specific and in
line with those raised on appeal.

“To preserve an issue for

appeal, an objection [or argument] must be timely and state the
grounds on which it is based.”

Kollsman, a Div. of Sequa Corp.

v. Cohen, 996 F.2d 702, 707 (4th Cir. 1993).

It follows then

that “an objection on one ground does not preserve objections
based on different grounds.”

United States v. Massenburg, 564

F.3d 337, 342 n.2 (4th Cir. 2009). 14
go

far

enough

by

raising

a

Similarly, a party does not

non-specific

14

objection

or

claim.

We have emphasized this point many times before.
See,
e.g., United States v. Zayyad, 741 F.3d 452, 459 (4th Cir. 2014)
(“To preserve an argument on appeal, the [party] must object on
the same basis below as he contends is error on appeal.”); Laber
v. Harvey, 438 F.3d 404, 429 n.24 (4th Cir. 2006) (“These are
different arguments entirely, and making the one does not
preserve the other.”); United States v. Banisadr Bldg. Joint
Venture, 65 F.3d 374, 379 (4th Cir. 1995) (“[A] theory not
raised at trial cannot be raised on appeal.”).
25

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“[I]f a party wishes to preserve an argument for appeal, the
party must press and not merely intimate the argument during the
proceedings before the district court.”
L.P.

v.

Prospect

Energy

Corp.,

733

Dallas Gas Partners,

F.3d

148,

157

(5th

Cir.

2013); see also United States v. Bennett, 698 F.3d 194, 199 (4th
Cir. 2012) (finding defendant waived argument where his argument
below

was

“too

general

to

alert

the

district

court

to

the

specific [objection]”).
In arguing that it can still pursue the issue despite its
failure to raise any specific argument challenging the Pen/Trap
Order below, Lavabit gives far too broad a reading to Yee v.
City of Escondido, 503 U.S. 519, 534 (1992).

Yee explained

that, “[o]nce a federal claim is properly presented, a party can
make any argument in support of that claim; parties are not
limited to the precise arguments they made below.”
534.

503 U.S. at

We, too, have recognized our need to “consider any theory

plainly

encompassed

litigation.”

by

the

submissions

in

the

underlying

Volvo Constr. Equip. N. Am., Inc. v. CLM Equip.

Co., 386 F.3d 581, 604 (4th Cir. 2004).
Yet

Lavabit

neither

“plainly”

nor

“properly”

identified

these issues for the district court, and a comparison between
this case and Yee illustrates why.
before

the

district

court

a

In Yee, the parties raised

Fifth

premised on physical occupation.
26

Amendment

takings

503 U.S. at 534–35.

claim
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the Supreme Court, however, they argued that the taking occurred
by regulation.

Id.

The difference in form there was immaterial

because the appealing party asked both courts to evaluate the
same

fundamental

question:

constituted a taking.

whether

the

challenged

acts

In other words, the appellant/petitioner

in Yee raised two variations of the same basic argument.
contrast,

the

difference

in

the

case

at

bar

is

marked

In
and

material: Lavabit never challenged the statutory validity of the
Pen/Trap Order below or the court’s authority to act.

To the

contrary, Lavabit’s only point below alluded to the potential
damage

that

compliance

could

cause

to

its

chosen

business

model. 15
Neither the district court nor the Government therefore had
any signal from Lavabit that it contested the district court’s
authority under the Pen/Trap Statute to enter the Pen/Trap Order
or the June 28th Order.

In fact, by conceding at the August 1

hearing “that the [G]overnment [was] entitled to the [requested]
information,”

it

likely

exactly the opposite.

led

the

(J.A. 108.)

district

court

to

believe

Accordingly, Lavabit failed

to preserve any issue for appeal related to the Pen/Trap Statute
or the district court’s authority to act under it.
15

See Nelson

We might characterize this argument as some type of undue
burden challenge.
But, on appeal, Lavabit does not raise any
undue burden argument as to the Pen/Trap Order.
Instead, it
limits its burden arguments to the seizure warrant.
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v. Adams USA, Inc., 529 U.S. 460, 469 (2000) (“[T]he general
rule that issues must be raised in lower courts in order to be
preserved as potential grounds of decision in higher courts . .
. requires that the lower court be fairly put on notice as to
the substance of the issue.”).

D.
Lavabit
cognizable

contends

objection

that,
to

the

even

if

Pen/Trap

it

failed

Order

in

to
the

raise

a

district

court, then the Government and the district court induced it to
forfeit its present challenges.

We know of no case recognizing

an “invited” or “induced” waiver exception to the traditional
forfeiture and waiver principles.

Lavabit has not identified

any

other

basis

for

such

an

exception,

than

belief that it is now in an “unfair” position.

its

subjective

But that is not

an argument that permits us to cast aside the well-understood
interests underlying our preservation requirements.

Cf. Hawkins

v. United States, 724 F.3d 915, 918 (7th Cir. 2013) (“Finality
is an institutional value and it is tempting to subordinate such
a value to the equities of the individual case. But there are
dangers, especially if so vague a term as ‘fairness’ is to be
the touchstone.”).

28

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In any event, we disagree with Lavabit’s factual premise,
as

neither

the

Government

nor

the

district

court

induced

or

invited Lavabit to waive anything.
The Government did not lead Lavabit to believe that the
Pen/Trap

Order

was

somehow

irrelevant.

To

be

sure,

the

Government focused more on the seizure warrant than the Pen/Trap
Order at certain times in the proceedings.

At the August 1

hearing, for example, the Government concentrated on the seizure
warrant and the later-withdrawn grand jury subpoena because the
motion under consideration –- Lavabit’s motion to quash -- only
addressed those two objects.

The Government, however, never

stopped contending that the Pen/Trap Order, in and of itself,
also required Lavabit to turn over the encryption keys.

For

example, the Government specifically invoked the Pen/Trap Order
in its written response to Lavabit’s motion to quash by noting
that

“four

separate

legal

obligations”

required

Lavabit

to

provide its encryption keys, including the Pen/Trap Order and
the June 28 Order.

(J.A. 86.)

If Lavabit truly believed the

Pen/Trap Order to be an invalid request for the encryption keys,
then the Government’s continuing reliance on that order should
have spurred Lavabit to challenge it.
The district court’s actions also put Lavabit on notice
that the Pen/Trap Order implicated Lavabit’s encryption keys.
The June 28 Order referred to encryption, and the August 1 order
29

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compelling

Filed: 04/16/2014

Lavabit

to

turn

Pg: 30 of 41

over

its

keys

relied

upon

two

independent sources of authority: “the July 16, 2013 seizure
warrant and the June 28, 2013 [Pen/Trap Order].”

(J.A. 119

(emphasis

plain

added).)

unequivocal

The

citation

to

August
the

1

Order,

Pen/Trap

with

Order,

its

informed

and

Lavabit

that the Pen/Trap Order needed to be addressed because it was
the cited authority for the turnover of the encryption keys.
Even if the district court had earlier equivocated about whether
the

Pen/Trap

Order

reached

Lavabit’s

encryption

keys,

doubts were dispelled once the August 1 Order issued. 16

those
“When

the terms of a judgment conflict with either a written or oral
opinion or observation, the judgment must govern.”

Murdaugh

Volkswagen, Inc. v. First Nat’l Bank of S.C., 741 F.2d 41, 44
(4th Cir. 1984); see also id. (“Courts must speak by orders and
judgments,
chance

not

by

observations

opinions,
or

whether

expressed

written

intentions

or

oral,

made

or

by

by

courts

during, before or after trial, or during argument.”).

At an

absolute minimum, if Lavabit believed that the turnover of the
keys was invalid under the Pen/Trap Order, then it should have

16

Similarly, if Lavabit believed that the district court
mistakenly relied upon the Pen/Trap Order in its August 1 Order,
then it should have moved the district court to revise its
order.
See Segars. v. Atl. Coast Line R.R. Co., 286 F.2d 767,
770 (4th Cir. 1961) (finding that party waived argument that
written order did not conform with trial court’s actual
findings, where party did not move to revise order below).
30

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acted once the district court’s August 1 order issued.

It did

not.

E.
Lavabit tenders other reasons why we should exercise our
discretion to hear its Pen/Trap Statute argument, but we find no
merit

in

those

arguments.

We

doubt

that

Lavabit’s

listed

factors could ever justify de novo review of an argument raised
for the first time on appeal in a civil case in this circuit.
Many years ago, this circuit held that, “at a minimum, the
requirements

of

[the

plain-error

standard]

must

be

satisfied

before we may exercise our discretion to correct an error not
raised below in a civil case.”
(emphasis added).

In re Celotex, 124 F.3d at 631

It makes no difference then that Lavabit’s

Pen/Trap Statute argument presents a supposedly “pure question
of law” (Reply Br. 6), or that Lavabit was unrepresented during
some of the proceedings below, or that Lavabit believes this
case to be one of “public concern” (Reply Br. 6).
At the outset, we do not agree that the issue is a “purely
legal”

one.

At

the

very

least,

interpreting

the

Pen/Trap

Statute’s third-party-assistance provision would require us to
consider technological questions of fact that have little to do
with “pure law.”

But even if the question were legal, that

would not alone justify our review.
31

Though some circuits will

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sometimes

put

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aside

the

Pg: 32 of 41

plain-error

framework

when

a

case

presents this sort of question, see, e.g., Villas at Parkside
Partners v. City of Farmers Branch, 726 F.3d 524, 582 n.26 (5th
Cir. 2013), our precedents do not embrace that approach.

To the

contrary, we have taken a more structured view, recognizing that
the forfeiture rule “is a salutary rule even where the ground
urged for reversal is a pure question of law.”

Legg’s Estate v.

Comm’r, 114 F.2d 760, 766 (4th Cir. 1940); accord Richison v.
Ernest

Grp.,

Inc.,

634

F.3d

1123,

1128–30

(10th

Cir.

2011)

(rejecting a party’s contention that a forfeited but “purely
legal”

issue

could

be

considered

outside

the

plain-error

framework).
Nor

does

it

matter

that

Lavabit

and

Levison

were

unrepresented by counsel during parts of the proceedings below. 17

17

As a limited liability company, Lavabit likely should not
have been permitted to proceed pro se at all. “It has been the
law for the better part of two centuries, for example, that a
corporation may appear in the federal courts only through
licensed counsel. As the courts have recognized, the rationale
for that rule applies equally to all artificial entities. Thus,
save in a few aberrant cases, the lower courts have uniformly
held that 28 U.S.C. § 1654, providing that ‘parties may plead
and conduct their own cases personally or by counsel,’ does not
allow corporations, partnerships, or associations to appear in
federal court otherwise than through a licensed attorney.”
Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council,
506 U.S. 194, 202 (1993) (footnote omitted); see also, e.g.,
United States v. Hagerman, 545 F.3d 579, 581–82 (7th Cir. 2008)
(holding that LLCs may not proceed pro se); United States ex
rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008)
(Continued)
32

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“Although pro se complaints [and arguments] are to be liberally
construed, the failure to first present claims to the district
court generally forecloses our consideration of these matters on
appeal.”

United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.

1990); cf. Williams v. Ozmint, 716 F.3d 801, 810–11 (4th Cir.
2013)

(“We

long

consideration

have

of

the

recognized
pleadings

that,
of

pro

despite
se

our

expansive

litigants,

.

.

.

appellate courts should not permit . . . fleeting references to
preserve questions on appeal.”).
Supreme

Court

has

ever

Neither this Court nor the

“suggested

that

procedural

rules

in

ordinary civil litigation should be interpreted so as to excuse
mistakes
United

by

those

States,

Lavabit’s

508

who

proceed

U.S.

106,

on-again-off-again

without
113

counsel.”

(1993).

relationship

McNeil

Especially
with

various

v.

given
legal

counsel, no reason exists to do so here. 18
Finally, Lavabit proposes that we hear its challenge to the
Pen/Trap Order because Lavabit views the case as a matter of
“immense public concern.”

(Reply Br. 6.)

Yet there exists a

perhaps greater “public interest in bringing litigation to an

(explaining that lay persons cannot represent
partnerships, or limited liability companies).
18

corporations,

Litigating this case did not evidently present any
particular financial hardship, as Lavabit and Levison have never
claimed a lack of funds as a reason for their sometimes-pro-se
status.
33

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after

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fair

opportunity

issues of law and fact.”
157, 159 (1936).
involve

matters

difficulties.

Pg: 34 of 41

has

been

afforded

to

present

all

United States v. Atkinson, 297 U.S.

And exhuming forfeited arguments when they
of

“public

concern”

would

present

practical

For one thing, identifying cases of a “public

concern” and “non-public concern” –- divorced from any other
consideration
standards.

–-

is

a

tricky

task

governed

by

no

objective

See, e.g., Tony A. Weigand, Raise or Lose: Appellate

Discretion and Principled Decision-Making, 17 Suffolk J. Trial &
App. Advoc. 179, 280–87 (2012) (describing vagueness and other
problems with a “public importance” approach); Barry A. Miller,
Sua Sponte Appellate Rulings: When Courts Deprive Litigants of
an Opportunity to Be Heard, 39 San Diego L. Rev. 1253, 1306–07
(2002) (“[W]hat is an important public interest to one court
will be unimportant to another.

The line will be particularly

difficult to draw and will often appear nakedly political.”).
For

another

thing,

if

an

issue

is

of

public

concern,

that

concern is likely more reason to avoid deciding it from a lessthan-fully

litigated

record.

See,

e.g.,

Kingman

Park

Civic

Ass’n v. Williams, 348 F.3d 1033, 1039 (D.C. Cir. 2003) (“The
issue presented, however, is of sufficient public importance and
complexity
posture.”);

to

counsel

Carducci

v.

strongly
Regan,

against
714

F.2d

deciding
171,

177

it

in

this

(D.C.

Cir.

1983) (refusing to excuse procedural waiver where case involved
34

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“important

Filed: 04/16/2014

questions

Pg: 35 of 41

of

far-reaching

significance”).

Accordingly, we decline to hear Lavabit’s new arguments merely
because Lavabit believes them to be important.
In

sum,

Lavabit’s

assorted

reasons

to

exercise

any

discretionary review authority do not convince us to review its
Pen/Trap Statute arguments de novo.

If Lavabit is to succeed on

its Pen/Trap Statute claim, it must at least show plain error.

III.
A.
The Pen/Trap Statute requires law enforcement authorities
to obtain court orders to install and use pen registers and
trap/trace devices.

The requirements for these orders are less

onerous than the requirements that apply to Government requests
for the “content” of communications, as pen/trap devices do not
collect
transfer

“content”
of

that

but

only

content. 19

information
As

to

associated

internet

with

the

communications,

pen/trap devices collect only metadata, such as an email’s “To:”
and “From:” fields, the date and time of transmissions, and user
login information.

See 18 U.S.C. § 3127(3), (4) (forbidding pen

19

For example, in the more historically common use of a
pen/trap device on a landline telephone, the only information
collected would be information such as the telephone numbers of
incoming and outgoing calls.
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registers and trap/trace devices from collecting “the contents
of any communication”).
The Pen/Register Statute also includes provisions requiring
third parties to provide technical assistance to the Government
in connection with those devices.
(b).

See 18 U.S.C. §§ 3124(a),

Under the pen-register provision, for instance, Lavabit

must provide:
all information, facilities, and technical assistance
necessary to accomplish the installation of the pen
register
unobtrusively
and
with
a
minimum
of
interference with the services that the person so
ordered by the court accords the party with respect to
whom the installation and use is to take place.
Id.

§

3124(a).

Similarly,

under

the

trap/trace

provision,

Lavabit must furnish:
all additional information, facilities and technical
assistance including installation and operation of the
device
unobtrusively
and
with
a
minimum
of
interference with the services that the person so
ordered by the court accords the party with respect to
whom the installation and use is to take place, if
such installation and assistance is directed by a
court order as provided in section 3123(b)(2) of this
title.
Id. § 3124(b) (emphasis added).
Thus,
identical.
information

Sections
The

3124(a)

and

pen-register

“necessary

to

(b)

are

provision

accomplish

the

similar,

but

not

refers

only

to

installation,”

id.

§ 3124(a), while the trap/trace provision references information
“including installation and operation,” id. § 3124(b).

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B.
Lavabit

now

argues

that

the

third-party-assistance

provisions found in Sections 3124(a) and (b) do not reach the
SSL keys.

It reads those provisions to require only enough

assistance to attach the pen/trap device to Lavabit’s system,
not any assistance necessary to make the device operationally
effective.

Further, Lavabit contends that it needed to offer

only enough help to make the installation unobtrusive.

And it

insists that Congress never could have intended to grant the
Government the broad power to ask for encryption keys through
the more general language found in the third-party-assistance
provisions.
All these new arguments notwithstanding, Lavabit failed to
make its most essential argument anywhere in its briefs or at
oral

argument:

it

never

contended

that

the

district

court

fundamentally or even plainly erred in relying on the Pen/Trap
Statute to compel Lavabit to produce its keys.

Yet Lavabit

bears the burden of showing, “at a minimum,” plain error.

Cf.

United States v. Carthorne, 726 F.3d 503, 510 (4th Cir. 2013)
(noting, in criminal context, that the appealing defendant bears
the burden of showing plain error); see also, e.g., Abernathy v.
Wandes, 713 F.3d 538, 553 n.12 (10th Cir. 2003) (noting in civil
context

that

the

party

that

failed

to

preserve

bears the burden of showing plain error).
37

his

argument

And “[a] party’s

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failure to raise or discuss an issue in his brief is to be
deemed an abandonment of that issue.”

Mayfield v. Nat’l Ass’n

for Stock Car Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir.
2012); see also IGEN Int’l, Inc. v. Roche Diagnostics GmbH, 335
F.3d 303, 308 (4th Cir. 2003) (“Failure to present or argue
assignments of error in opening appellate briefs constitutes a
waiver of those issues.”).

Taken together, these two principles

carry us to one inevitable conclusion: Lavabit’s “failure to
argue for plain error and its application on appeal . . . surely
marks the end of the road for [its] argument for reversal not
first presented to the district court.”

Richison, 634 F.3d at

1131; see also Jackson v. Parker, 627 F.3d 634, 640 (7th Cir.
2010) (rejecting party’s plain error argument where, among other
things, he “ha[d] not made an attempt –- either in his briefs or
at oral argument –- to show that the elements for plain error
review ha[d] been satisfied”).
Lavabit

abandoned

any

argument

that

the

district

court

plainly erred, much less fundamentally erred, in relying upon
the

Pen/Trap

Order

to

find

Lavabit

in

contempt.

Moreover,

Lavabit fails to identify any potential “denial of fundamental
justice”

that

would

justify

further

review.

For

the

reason, then, Lavabit has abandoned that argument as well.

38

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Pg: 39 of 41

C.
We

reiterate

that

our

review

is

circumscribed

by

arguments that Lavabit raised below and in this Court.
this

narrow

freestanding

course
open

because
forum

hypothetical questions.

an

for

appellate
the

court

discussion

the

We take

is
of

not

a

esoteric

See Swann v. Charlotte-Mecklenburg Bd.

of Educ., 489 F.2d 966, 967 (4th Cir. 1974) (“[The] Court does
not sit to render decisions on abstract legal propositions or
advisory opinions.”).
actually raised.

Rather, we adjudicate the legal arguments

See Erilin Co. S.A. v. Johnson, 440 F.3d 648,

654 (4th Cir. 2006) (observing that our “system of justice” is
one “in which the parties are obliged to present facts and legal
arguments

before

a

neutral

and

relatively

passive

decision-

maker”).

Our conclusion, then, must tie back to the contempt,

as the actual order on appeal, and the proceedings below, as the
record that constrains us.

IV.
Lavabit

also

raises

several

challenges

to

the

seizure

warrant, but we need not, should not, and do not reach those
arguments.

The district court’s orders compelling Lavabit to

turn

its

over

encryption

keys

relied

on

two,

separate

independent grounds: the Pen/Trap Order and the seizure warrant.
Thus, the court’s later finding of contempt found that Lavabit
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violated both the two prior orders.

When two independent bases

support a district court’s contempt order, it is enough for us
to find that one of those bases was appropriate.

See Consol.

Coal Co. v. Local 1702, United Mineworkers of Am., 683 F.2d 827,
831–32

(4th

independent

Cir.

1982)

bases

for

properly affirmed).

(declining
contempt

to

order

address
where

second

first

of

two

basis

was

This contempt-specific rule flows from the

more general maxim that, “[t]o obtain reversal of a district
court

judgment

appellant
judgment

must

based
convince

against

him

on

multiple,

us
is

that

independent

every

incorrect.”

stated

grounds,

ground

Sapuppo

for

v.

an
the

Allstate

Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
Furthermore,

some

of

Lavabit’s

implicate constitutional concerns.

additional

arguments

Those concerns provide even

more reason to avoid addressing Lavabit’s new arguments.

“The

principle of constitutional avoidance . . . requires the federal
courts

to

absolutely

avoid

rendering

necessary.”

constitutional

Norfolk

S.

Ry.

rulings
Co.

v.

unless
City

of

Alexandria, 608 F.3d 150, 157 (4th Cir. 2010) (citing Ashwander
v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J.,
concurring)); see also Bell Atl. Md., Inc. v. Prince George’s
Cnty., Md., 212 F.3d 863, 865 (4th Cir. 2000) (“[C]ourts should
avoid

deciding

constitutional

questions

essential to the disposition of a case.”).
40

unless

they

are

So, we “will not

Appeal: 13-4625

decide

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a

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constitutional

Pg: 41 of 41

question,

particularly

a

complicated

constitutional question, if another ground adequately disposes
of the controversy.”
Cir. 2002).

Strawser v. Atkins, 290 F.3d 720, 730 (4th

The long-established constitutional-avoidance rule

applies squarely to this case.

V.
In view of Lavabit’s waiver of its appellate arguments by
failing to raise them in the district court, and its failure to
raise the issue of fundamental or plain error review, there is
no cognizable basis upon which to challenge the Pen/Trap Order.
The district court did not err, then, in finding Lavabit and
Levison in contempt once they admittedly violated that order.
The judgment of the district court is therefore
AFFIRMED.

41