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
Pg: 15 of 41
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
Filed: 04/16/2014
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).
22
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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
23
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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
Before
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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.
27
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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
Filed: 04/16/2014
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).
36
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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
same
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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
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decide
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a
Filed: 04/16/2014
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
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