Redacted Pleadings Exhibits 1 23

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EXHIBIT 1


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UNITED STATES DISTRICT COURTFOR TIlE EASTERN DISTRICT OF VIRGINIA

IN RE APPLICATION OF THEUNITED STATES OF AMERlCA FORAN ORDER PURSUANT TO18 U.S.C. 2703(d)

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MISC. NO. 1:13 EC :!-5'-\

Filed Under Seal

ORDERThe United States has submitted an application pursuant to 18 U.S.C. 2703(d),

requesting that the Court issue an Order requiring Lavabit LLC, an electronic cornmunicatjonsservice provider and/or a remote computing service located in Dallas, TX, to disclose the recordsand other information described in Attachment A to this Order.

The Court finds that the United States has offered specific and articulable facts showingthat there arc reasonable grounds to believe that the records or other information sought arerelevant and material to an ongoing criminal investigation.

The Court detennines that there is reason to believe that notification of the existence ofthis Order will seriously jeopardize the ongoing investigation, including by giving targets anopportunity to flee or continue flight from prosecution, destroy or tamper with evidence, changepatterns of behavior, or notify confederates. See 18 U.S.C. 2705(b)(2), (3), (5).

IT IS THEREFORE ORDERED, pursuant to 18 U.S.C. 2703(d), that Lavabit LLCshall, within ten days of the date of this Order, disclose to the United States the records and otherinfonnation described in Attachment A to this Order.

IT [S FURTHER ORDERED that Lavabit LLC shall not disclose the existence of theapplication of the United States, or the existence of th is Order of the Court, to the subscribers ofthe account(s) listed in Attachment A, or to any other person, unless and until otherwise


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authorized to do so by the Court, except that Lavabit LLC may disclose this Order to an attorneyfor Lavabit LLC for the purpose of receiving legal advice.

IT IS FURTHER ORDERED that the application and this Order are sealed untilotl,erwise ordered by the Court.

United States Magistrate Judge

A TRUE COpy. TESTE:

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1. The Account(s)The Order 'appliesaccount( s):

ATTACHMENT A

infonnation associated with the following email

IJ. Records and Other Information to Be DisclosedLavabit LLC is required to disclose the following records and other information, if available, tothe United States for each account or identifier listed in Part I of this Attachment ("AccounC),for the time period from inception to the present:

A. The following information about the customers or subscribers of the Account1. Names (including subscriber names, user names , and screen names);2. Addresses (including mailing addresses, residential addresses, businessaddresses, and e-mail addresses);3. Local and long distance telephone connection records;4. Records of session times and durations, and the temporarily assignednetwork addresses (such as Internet Protocol ("IP") addresses) associated

with those sessions;5. Length of service (including start date) and types of service utilized;6. Telephone or instrument numbers (including MAC addresses);7. Other subscriber numbers or identities (including the registration InternetProtocol ("iP") address); and8. Means and source of payment for such service (including any credit cardor bank account number) and billing records.

B. All records and other infonnation (not including the contents of communications)rdating to the Account, including:1. Records of user activity for each connection made to or from the Account,including log files; messaging logs; the date, time, length, and method ot"

connections; data transfer volume; user names; and source and destinationInternet Protocol addresses;

2. Infonnation about each communication sent or received by the Account,including the date and time of the communication, the method ofcommunication, and the source and destination of the communication(such as source and destination email addresses, IP addresses, andtelephone numbers).


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CERTIFICATE OF AUTHENTICITY OF DOMESTIC BUSINESS RECORDSPURSUANT TO FEDERAL RULE OF EV IDENCE 90 2(11)

I, ______________ attest, under penalties of perj ury under thelaws of the United States ofAmerica pursuant to 28 U.S.c. 1746, that the infonnation

in this declaration is true and correct. r am employed by Lavabit LLC, and my officialtitle is _____________ r am a custodian of records for Lavabit LLC. I statethat each of the records attached hereto is the original record or a true duplicate of the originalrecord in the custody of Lavabit LLC, and that I am the custodian of the attached recordsconsisting of (pages/CDslkilobytes). I further state that:

a. all records attached to this certificate were made at or ncar the time of theoccurrence of the matter sct forth, by, or from information transmitted by, a person withknowledge of those matters;

b. such records were kept in the ordinary course of a regularly conducted businessactivity ofLava bit LLC; and

c, such records were made by Lavabit LLC as a regular practice.I further state that this certification is intended to satisfy Rule 902(11) of the Federal

Rules of Ev idence.

Date Signature


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EXHIBIT 2


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IN THE UNlTED STATES D1STRlCT COURT FOR THEEASTERN DISTRlCT OF VIRGINIA

.AJexandria DivisionIN THE MATIER OF THE APPLICATIONOF THE UNITED STATES OF AMERlCAFOR AN ORDER AUTHORlZING THEINSTALLA TION AND USE OF A PENREGISTERITRAP TRACE DEVICEON AN ELECTRONIC MAll ACCOUNT

))llORDER

runder Seal)1:13 EC a'1'l

This matter having come before the Court pursuant to an Application under 18 U.S.C. 3122, by AssiSlant United States Attorney, an attorney for the Governmentas defined by Fed. R. Crim. P. I(bXl), requesting an Order under 18 U.S.C. 3123, authorizingthe installation and use of a pen register and the use of a trap and trace device or process("pen/trap device") on all electronic: communications being sent from or sent to the accountassociated is registered to sullScri!>erLavabit, LLC (hereinafier referred to as the "SUBJECT ELECTRONIC MAIL ACCOUNT").The Coun finds that the applicant has certified that the information likely to be obtained by suchinstallation and use is relevant to an ongoing crimina! investigation into possible vio!ation(s) of18 U.S.C. 641, 793(d)-(e), and 798(a)(3)

IT APPEARING that the infonnation likely to beobtained by the penltrap device isre!evanl to an ongoing criminal investigation of the specified offense;

IT IS ORDERED, pursuant 'to 18 U.S.C. 3123, that a pet'Jtrap device may be installedand used by Lavabit and the Federal Bureau of Investigation to capture all non-content dialing,routing, addressing, and signaling information (as described and limited in the Application), sentfrom or sent to the SUBJECT ELECTRONIC MAIL ACCOUNT, to record the date and time ofthe initiation and receipt of such transmissions, to record the duration of the transmissions, and torecord user log-in data (date, time, ouration, and Internet Protocol address of all log-ins) on the


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SUBJEC, ELECTRONIC MAIL ACCOUNT, all for a period of sixty (60) days from the date ofsuch Order or the date the monitoring equipment becomes operational, whichever occurs later;

IT IS FURTIiER ORDERED, pursuant to 18 U.S.C. 3123(b)(2), that Lavabit shallfurnish agents from the Federal Bureau of Investigation, forthwith, all information, facilities, andtechnical assistance necessary to accomplish the installation and use of the pen/trap deviceunobtrusively and with minimum interference to the services that are accorded persons withrespect to whom the installation and use is to take place;

IT IS FURTHER ORDERED that the United States 'ake reasonable steps to ensure tha'the monitoring equipment is not US(x! to capture any "Subject:" portion cfan electronic mailmessage, which could possibly contain content;

IT IS FURTHER ORDERED that Lavabit shall be compensated by the Federal Bureau ofInvestigation for reasonable incurred in providing technical assistance;

IT [S FURTHER ORDERED that, in the event that the implementing investigativeagency seeks to install and use its mvn pen/trap device on a data neh'lork of apublic provider, the United States shall ensure that a record is maintained which will identify: (a)any ofiicer(s) who instal led the dev.\cc and any officer(s) who accessed the device to obtaininfonnation from the network; (b) the date and time the device was installed, the date and timethe device was uninstaIled, and the date , time,. and duration of each time the device is accessed toobtain infonnatjon; (c) the configuntion of the deviGe at the time of its installation and anysubsequem modification thereof; and (d) any information which has been collected by the device.To the extent that the pen/trap device can be set to automatically record this infonnarionelectronically, the record shall be maintained electronically throughout the installation and use ofthe penJrrap device. Pursuant to 18 U.S.C. 31 23(aX3)(B), as amended, such record(s) shall beprovided ex parte and under seal to 'this Court within 30 days of the termination of this Order,including any extensions thereof;

IT IS FURTHER ORDERED, pursu..", to 18 U.S.c. 3 J23(d), tha' this Order and theApplication be scaled until otherwise ordered by the Court, and that copies of such Order may be

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furnished to the Federal Bureau of Investigat.ion, the United States Attorney's Office, andLavabil;

IT IS FURTHER ORDERED that Lavabit shall not disclose the exi.stence of the pen/trapdevice, or the existence of the to any person, except as necessary to effectuate thisOrder, unless or until otherwise ordered by the Court.

SO ORDERED: lsieresa Carron Buchanan

United States Magistrate Judge00. Theresa C. BuchananUnited States Magistrate Judge

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EXHIBIT 3


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Lavabit wou!d not provide the requested infoIl11


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css:stance is directed by a court order as provided in section 3 I23(b)(2) of this title:' Section3124(b) contains a similar provision governing: tmp and trace orders.

Wherefore, the United States requests an Order directing Lavabit to comply forthwithwith tbe Court's June 28, 2013 OrJer.

By:

Respectfully submitted,NEIL H. MACBRIDEUnited States AHolTley


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EXHIBIT 4


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IN THE UNITED STATES DISTRICT COURT FOR THEEASTERN DISTRICT OF VIRGINIA

Alexandria DivisionIN THE MA ITER OF THE APPLICATIONOF THE UNITED STATES OF AMERICAFOR AN ORDER AUTHORIZING THEINSTALLATION AND USE OF A PENREGISTERffRAP AND TRACE DEVICEON AN ELECTRONIC MAIL ACCOUNT

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1:13 EC297

ORDER COMPELLING COMPLIANCE FORTHWITHWHEREAS, on June 28, 2013, at approximately 4:00 p.m., this Court entered. an Order

pursuant to 18 U.S.C. 3123 authorizing the installation and use of a pen register and the use ofa trap and trace device ("pen/trap device") on all electronic communications being sent from orsent to the electronic mail af:counl which is an e-mail accountcontrolled by Lavabit, LLC ("Lavabi t"); and

WHEREAS, this Court found that the information obtained by the pen/trop device wouldbe relevant to an ongoing criminal investigation; and

WHEREAS, the Court's Order directed that Lavabit "shall furnish agents from theFederal Bureau of Investigation, forthwith, all information, facilities, and technical assistancenecessary to accomplish the installation and use of the pen/trap device;" and

WHEREAS, Lavabit informed the: Federal Bureau of Investigation that the user of theaccount had enabled Lavabit's encryption services and thus the pen/trap device would not collectthe relevant information; and

WHEREAS, Lavabit informed the FBI that it had the technological capability to obtainthe infonnation but did not want 10 "defeat [its] ovm system;"

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IT IS HEREBY ORDERED that Lavabit LLC is directed to comply forthwith with theCoun's June 28. 2013 Order. and provide the Federal Bureau of Investigation with unencrypteddata pursuant to the Order. To the extent any information, facilities, or technical assistance areunder the control of Lavabit are needed to provide the FBI with the unencrypted data. Lavabitshall provide such information, facilities, or technical ass istance forthwith.

Failure to comply with this Order shall subject Lavabit to any penalty within the power off" "' ;1",1;I;he Court,',

SO ORDERED, 3

.Han. Theresa C. Buchanan ' . - .United States Magistrate Judge ' . ,, '


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IN TH E UNITED STATES DISTRICT COURT FOR THE . I Il TEASTERN DISTRICT OF VlRGINIAj: 11 - 9211f30 'Alexandria Division

IN THE MATTER OF 11-IE ) FILED UN DER SEAL)CtERK u.s. !}ISffilCl {';()(JRT

,/1f?\i'NI,I;APPLICA110N OF TH E UNITEDSTATES OF AMERICA FOR AN ORDERAUrnORlZING THE USE OF A PENREGlSTERfTRAP AND TRACE DEVICEON AN ELECTRONlC MAIL ACCOUNT

) NO.l:I3EC297)))

MOTION OF THE UNITED STATESFOR AN ORDER TO SHOW CAUSEThe United States, through t'he undersigned counsel, pursuant to Title 18, United States

Code, Section 40 I, hereby moves fe-r the issuance of an order directing Ladar Levison, the ownerand operator of Lavabit LLC, an ele-::tronic communications service provider, to show cause whyLavabit LLC has failed to comply with the orders entered June 28, 2013, in this matter and, as aresult, why this Court should not hold Mr. Levison and Lavabit LLC in contempt for its

disobedience and resistence to these lawful orders. The United States further requests that theCourt convene a hearing on this mOl:ion on July 16, 2013, at 10;00 a.m., and issue a summonsdirecting Mr. Levison to appear before this Court on that date. In support of this motion, theUnited States represents:

1. The United States is :;onducting a criminal investigationI


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June 10,2013, the United States obtainedan order pursuant to 18 U.S.C. 2703(d) directing Lavabit LLC to provide, within ten days,additional records and information account. Mr. Levison received thatorder June 11,2013 . Mr. Levison responded by mail, which was not received by thegovernment until June 27, 2013. Mr. Levison provided very little of the infonnation sought bythe June 10,2013 order.

3. On June 28, 2013, th

order.4. On June 28, 2013, FBI special agents met Mr. Levison at his residence in Dallas,

Texas, and discussed the prior grand jury subpoena served on Lavabit LLC and the pen registerorder entered that day. Mr. Levison did not have a copy of the order when he spoke with theagents, but he received a copy from the FBI within a few minutes of their conversation. Mr.Levison told the agents that he would not comply with the pen register order and wanted to speakto an attorney. It was unclear whether Mr. Levison would not comply with the order because itwas technically not feasible or difficult or because it was not consistent with his business practiceof providing secure, encrypted email service for his customers.

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5. On June 28, 2013, after th1s conversation with Mr . Levison, the United Statesobtained an Order Compel1ing Compliance forthwith, which directed Lavabit to comply with thepen register order. Copies of that motion and order are attached.

6. Since June 28, 2013, the FBI has made numerous attempts, without success, tospeak and meet directly with Mr. Levison to discuss the pen register order and his failure toprovide "all information, facilities, and technical assistance necessary to accomplish theinstallation and use of the pen/trap device" as required by that order. As of this date, LavabitLLC has not complied with the ord'!r.

7. The United States requests that the Court enter the attached proposed orderdirecting Mr. Levison to show cause why Lavabit LLC has failed to comply with the pen registerorder and why, therefore, he should not be held in contempt. The United States requests that thisshow cause hearing be scheduled for July 16,2013, at 10 :00 a.m., and that a summons be issueddirecting Mr. Levison to appear before this Court on that date.

8. The June 10, 2013 Section 2703(d) Order and the June 28, 20 13 pen register orderremain under seal. In the:;e orders provide that Lavabit LLC shall not disclose theexistence of the govememnt's appLcations and the orders to the sulbs(:ri\ler to anyother persons unless otherwise authorized to do so by court order, except that Lavabit LLC maydisclose the orders to an attorney for the purpose of obtaining legal advice regarding these orders.The United States requests that documents remain under seal, that the non-disclosure

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provisions of the orders remain in effect, and that this motion and order and any subsequentpleadings and/or proceedings regarding this motion also be sealed.

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Respectfully submitted,Neil H. MacBride

2100 Jamieson AvenueAlexandria, Virginia 22314Phone: 703-299-3700


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PltOPOSEDORDER TO SHOW CAUSE


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IN THE UNITED STATES DISTRICT COURT FOR THEEASTERN DISTRICT OF VIRGINlA

Alexandria DivisionIN THE MATrER OF THEAFPLlCATION OF THE UNITEDSTATES OF AMERICA FOR AN ORDERAUTHORIZING THE USE OF A PENREGISTERffRAP AND TRACE DEVICEON AN ELECTRONIC MAIL ACCOUNT

) UNDER SEAL)) No.I:I3EC297)))

ORDER TO SHO W CAUSEUpon motion of the United States pursuant to Title 18, United States Code, Section 40 I,

good cause having been IT IS HEREBY ORDERED:I. Ladar Levison, the o?mer and operator of Lavabit LLC, an electronic

corrununications service provider, shall appear before this Court on July 16 , 2013, at 10:00 a.m.,at which time he shall show cause why Lavabit LLC has failed to comply with the orders enteredJune 28 . 2013 , in this matter and why this Court should not hold Mr. Levison and Lavabit LLC in

contempt for its disobedience and resistence to these lawful orders;2. The Clerk's Office shall issue a summons for the appearance of Mr. Levison on

July ]6 , 2013, at 10:00 a.m. The Clerk's Office shall provide the Federal Bureau of Investigationwith a certified copy of the summons for service on Mr. Levison and Lavabit LLC .

3. The Federal Bureau ofTnvestigation shall serve the summons on Mr. Levisontogether with a copy of the Motion of the United States for an Order to Show Cause and acertified copy of this Order to Show Cause.

4. The sealing and provisions of the June 10,2013 Section 2703(d)order and the June 28, 2013 pen register order shall remain in full force and effect. Mr. Levison


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and Lavabit LLC shall not disclose the existence of these applications, motions, and court orders,including this Order to Show Cause, to the subscriber or to any other persons unless otherwiseauthorized to do so by court order, except that Lavabit LLC may disclose the orders to ananomey for the purpose of obtaining legal advice regarding these orders.

5. This Order, the Motion of the United States for an Order to Show Cause, and anysUbsequent pleadings and proceedings regarding this matter sha(J be placed under seal untilfurther order of this Court.

Entered in Alexandria, Virginia, this __ day of July, 2013

Claude M. HiltonUnited States District Judge

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EXHIBIT 6


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IN THE UNITED STATES D1SlRICT COURT FOR THEEASTERN D1SlRICT OF VIRGINIA _. .. ,.

Alexandria Division . IL IEIN THE MATTER OF TH E!\PPLICATION OF THE UNITEDSTATES OF AMERICA FOR A."1 ORDERAlITHORlZlNG THE USE OF A PEN REGISTERITRAP AND TRJ\CE :)EVICEON AN ELECTRONlC MAIL ACCOUNT

) UNDER SEAL)

H..ILL - 9 21113

) No. 1:1 EC297)))

ORDER TO SHOW CAUSE

CLERK . U.S. DlS1HICT COUll!AlOOl'mRtA.

Upon motion of the United States pursuant to Title 18. United States Code, Section 401,good cause baving been shown, IT IS HEREBY ORDERED:

1. Ladar Levison, the owner and operator of Lavabit LLC, an electroniccommunications service provider, :;hall appear before this Court on July 16, 2013, at 10;00 a.m.,at which time be shall show cause ',Iony Lavabit LLC bas failed to comply with the orders enteredJune 28, 201 l, in this matter and why this Court should not hold Mr. Levison and Lavabit LLC incontempt for its disobedience and resistencc to these lawful orders;

2. The Clerk's Office sball issue a summons for the appearance afMr. Levison onJuly 16,2013, at 10:00 am. The Clerk's Office shall provide the Federal Bureau oflnvestigationwith a certified copy of the summO:.1S for service on Mr. Levison and Lavabit LLC.

3. The Federal Bureau of Investigation shall serve the summons on Mr. Levisontogether with a copy of he Motion of the United States for an Order to Show Cause and acertified copy of this Order to Show Cause.

4. The sealing and nondisclosure provisions of the June 10,2013 Section 2703(d)order and the June 28, 2013 pen order shall remain in full force and effect. :Mr. Levison


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and Lavabit LLC shall not disclose the existence of these applications, motions, and court orders,including this Order to Show to the subscriber or to any other persons unless otherwiseauthorized to do so by court order, except that Lavabit LLC may disclose the orders to anattorney for the purpose of obt.ain.i.ng legal advice regarding these orders.

5. Tbis Order, the Motion of the United Sbtes for an Order to Show Cause, and anysubsequent pleadings and proCeedilJ.gs regarding this matter shall be placed under seal untilfurther order of this Court.

Entered in Alexandria, Vir&inia, this 9'fo--day of July, 2013

C&. -4 /4 , d/=...g;;;_.Claude M. HiltonUnited Stales District Judge

ATRUE COPY, TESTE:CLERK. U.S. DISTRICT ,",VI, I i"! !

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EXHIBIT 7


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AO B:I (It'ev . 061(9) in I Case

UNITED ST-A"I'Es DISTRICT COURTfor the

Eastern District of Virginia UNDER SEALniTed States of Americav.

Ladar LevisonDl:fr:ruJ.ar1l

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Case No.1: 13ec297

SUMMONS IN A C R.lMINAL CASEYOU ARE SUMMONED to appear before the United States district court at the time, dale, and place set forthbelow to answer to one or more offenses or violations based on the following document fi led wi th the court:

o Indictment o Superseding Indictment o Information 0 Superseding Information o Complainto Probation Violation Petition 0 Supervised Release Violation Petition 0 Violation Notice i8I Order of Court

f--------------------------------------------.-----------------------------.Place: 401 Courthouse Square Courtroom No.: 8(X). Judge HillanAJexandria, VA 22.,14 Date and Time: 7/16/13 @ 10:00 amThis offene is brieDy described as follows:

See Attached Order

Date: 0710912013

Deputy ClerkPrimed /lame and title

I declare under penalry of perjury that I have:o Executed and returned this summons o Returned this summons unexecutedA TRUE COPY, TESTE:CLERK, U.S. DISTRICT cOt 'qDate:

DEPU 1,CWiKPrinted name and title


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EXHIBIT 8


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""0 t 10 (!WI. 01!()9) S:.tbpocna 10 Tcst!1'y aelb:e, Jury

TO:

DaHas, TX 75204

United States District Court"" .,Eastern District of VirginiaSUBPOENA TO TESTIFY BEFORE THE GR,.-\ND JURY

YOU ARECQMMA.,'lDED 10 appear and testify before !be Uoited States district court at the time, date.;meplace shown below to lesify before the court's grand jury. When you arrive, you must remain at the C::Ill" until thejudge or II court offioer allows yO\! to leave.

Pltte: UNITED ST AYES DlSTRlCT COURTCOllrthouseSqulrf

Alex8ndriJ. Vir,inI8l2314I I : tnd Time: July lG, lUll

________________J-______You mUll also brin& with)'O\l the folJowill& docume:1ts. l10red lnformu ion. or objecu(bll!!'.K ifr.Ol "?plica.bl,,):

9:30 AM

In ..ddifion to your !,l:"l'SunHI"flpear"nce,you ar c direeled to b ring 10 the grano jury th e pu b lic lind privateencryptiun I;c)'5 used by l:.Ivabil.CQn. in any SSl.. (See orl! Sekel L:.I,,

(or Imcrnct other- protoco ls) mail lCrvCr.;;Any utt:c r in form:Hl on necessary to th t insu ll2t1on :lncl use of tile ptnltrap device ordered byJud?;e BIlc;h"nnn 011 Ju n e 28, 2013, unubtrusively :o nd wiln minimum ;nt enerenl:"t to the serviee" th2t ar c>lctorded persons with respect 10 whom Ihe ins t:lllati(ln and use illo take place;If such information i3 elec t ronically slof'1:d or unable to physically transported to th e ;:rand jury, youmtty provide co fly of t be in for mation to the Feder.. l BurtllU of Provi$ion of tlds illformalionto tile FBr nOt excuse your personal appellnlnce.

Julv (I 2013 CLRJ(

f'!.c n&me, lId=, email.Md!el-:phonenu.mbecofthcUr.ill:d StIIleS Unitedrequests this tL"t':

JU.Ul1 W. Wi1li" m$l;"ittd Attonu,. 's SII,hljn:] [00 ,\Venlle,\ll p03} 299nOO -_ .. - ...... .


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PROOF OF SERVICE

This subpoena for (name of individ'ual or organizat ion) IV g.J lev-! Yv-...received by me on (date) J"k\Ak, 1/ ( hi'!"Vl-1 personally served the subpoena on the individual at ,--.4,...Ala5. I ux-0 on,o lief\: the subpoena at 1t.e !ndMdual's residence or usual p!acs of abode with (name)'i:iie>=========== ' person of suit2b!e age and discretion....no mere, on(date) , and mailed a copy to the individual's last known address; orCi J served ttle SUbpoeM on (name of inkHVidua l)- ,::;:-:-;::::.-::


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EXHIBIT 9


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ATTACHMENT BParticular Things to be Seized

1. Information to be disclosed by Lavabit, LLC (the ;;Provider")To the extent that the information described in Attaclunent A is within the possession,

custody, or control of the Provider, including any emaiis.records.fiies. logs, or infonnation thathas been deleted but is still available to the Provider, the Provider is required to disclose thefollowing information to the government for each account or identifier listed in Anachroent A:

a. All infonnation necessary to decrypt communications sent to or from the Lavabit

e-mail .C"OUl]! including encryption keys and SSL keys;b. All information necessary to decrypt data stored in or otherwise associated with

the Lavabit account


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EXHIBIT 10


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EXHIBIT 11


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IN THE UNITED STATES DISTRlCT COURTFOR THE EASTERN DfSTRlCT OF VlRGINIA_

IN RE: APPLICATION OF THE UNITED Case No. 1:13SW522STATES OF AMERlCA FOR A.N ORDER Filed Und er SealPURSUA.NTTO 18 U.S.C. 2705(b)

.J--n-- ILJUL 1'6'2013 IJI

CURY..,us. Or3!ilI Cl :Al::XAIi!;Rlii . vtRr.!O'if.RDERThe United States has submitted an application pursuant to 18 U.S.C. 2705(b),

requesting that the Court issue an Order corrunancling Lavabit, an electronic communicationsservice provider and/or a remote computing service, not to notify any person (including thesubscribers or customers of the account(s) listed in the search warrant) oftbe existence of theattached search warrant until further order of the Court.

The Court determines that there is reason to believe that notification of the existence ofthe attached warrant will seriously jeopardize the investigation, including by giving targets anopportunity to flee or continue flight from prosecution, destroy or tamper with evidence, cha.'lgcpatterns of behavior, or notify conlederates. See 18 U.S.C. 2705(b)(2), (3), (5).

IT IS THEREFORE ORDERED \Loder 18 U.S.C. 2705(b) that Lavabit shall notdisclose the existence of the attached search warrant, or this Order of the Court, to the listedsubscriber or to any other person, unless and until otherwise authorized to do so by the Court,except that Lavabit may disclose the attached search warrant to an attorney for Lavabit for thepurpose of receiving legal advice.

IT lS FURTHER ORDERED that the application and this Order are sealed untilotherwise ordered by the Court.

&CU.&... h . ;u;:.....The Honorable Claude M. HiltonUnited States District Judge


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EXHIBIT 12


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Levison that they would meet with him when they were ready to install the device and go overwith him any of the technical details regarding the installation and use of the pen register. As forthe data collected by the device, the agents assured Mr. Levison that the only data that the agentswould review is that which is stated in the order and nothing more (i.e., user log-in informationand the date, time, and duration of the transmissions for the target account).

3. Lavabit LLC provides encryption service to paid users Basedon the conference call with Mr. Levison, the FBI is reasonably confident that with the encryptionkeys, which Mr. Levison can access, it would be able view in an un-encrypted format anyencrypted information required to be produced through the use of the pen register.

4. Mr. Levison and rus attorney did not commit to the installation and lise of the penregister at the conclusion of the July 10 conference call. On July 11,2013, counsel whoparticipated in the conference call informed the government that she no longer represented Mr.Levison or Lavabit LLC. In addition, Mr. Levison indicated that he would not come to courtunless the government paid for his travel.

5. On July 11,2013, FBI agents served Mr. Levison with a grand jury subpoenadirecting him to appear before the grand jury in this district on July 16, 2013. As a grand jurywitness, the government was responsible for making Mr. Levison's travel arrangements.

6. On July 11, 2013, the undersigned counsel sent Mr. Levison an email indicatingthat he has been served with a show cause order from this Court requiring his appearance on July16,2013, and a subpoena requiring his appearance on the same date before a federal grand jury.The email further advised Mr. Levison that he should contact the United States Attorney's Officeas soon as possible to make his travel arrangements.

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7. On July 13,2013, Mr. Levison, who was no longer represented by counsel. sentgovernment prosecutors an email indicating that he would be able to collect the data required bythe pen register and provide that data to the government after 60 days (the period of the penregister order). For this service, Mr. Levison indicated that the government would have to payhim $2000 for "developmental time and equipment" plus an additional $1500 if the governmentwanted the data "more frequently" than after 60 days.

8. On July 13, 2013, the government responded to Mr. Levison's proposal. Theprosecut.ors info rmed Mr. Levison that the pen register is a devise used to monitor ongoing emailtraffic on a reaHime basis and providing the FBI with data after 60 days was not sufficient.Furthermore, prosecutors informed him that the statute authorizes the government to compensatea service provider for "reasonable expenses," and the amount he quoted did not appear to bereasonable. Mr. Levison responded by email stating that the pen register order, in his opinion,does not requjre realtime access (although this fact was discussed at length during the July 10conference call). Moreover, he indicated that the cost of reissuing the "SSL certificate" (forencryption service) would be $2000. It was unclear in his email if this $2000 was an additionalexpense to be added to the $3500 previously claimed. Mr. Levison indicated that he would try tocontact the person responsible for making his travel arrangements at the United States Anomey'soffice on Sunday afternoon.

9. On July 15, 2013, Mr. Levison spoke with the person responsible for making histravel arrangements. He was told that he was booked on a flight from Dallas, Texas, 10National Airport departing that same evening. He also had a hotel reservation. Mr. Levisonindicated

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10 . The proceeding before the Court today is to determine whether Lavabit LLC andMr. Levison should be held in civil contempt. Civil contempt, as compared to criminal contemptunder rule 42 of the Federal Rules of Criminal Procedure , is in tended to coerce compliance witha court order. There are four elements to civil contempt: (I ) the existence of valid order of whichLavabit LLC and Mr. Levison had actual or constructive knowledge; (2) the order was in thegovernment's "favor"; (3) Lavabit LLC and Mr. Levison violated the terms of the order and hadknowledge. or constructive knowledge, of such violation; and (4) the government suffered harmas a result. In re Grand Jury Subpoena (T-112), 597 FJd 189,202 (4th Cir. 2012).

11 . Here, each of these elements has been me t. Lavabit LLC, through directcommunication between the government and Mr. Levison, its owner and operator, has had actualknowledge of the pen register order and the sUbsequent June 28 order of the magistrate judgecompelling compliance with that order. This Court's show cause order, which was personallyserved on Mr. Levison, provided further notice of the violation of those orders by Lavabit LLC.The government clearly has suffered harm in that it has lost 20 days of i.nfonnation as a result ofnon-compliance.

12. Lavabit LLC Illay comply with the pen register order by simply allowing the FBIto install the pen register devise and provide the FBI with the encryption keys. If Lavabit LLCinforms the Court it will comply with the order, the government will not seek sanctions. If,however, Mr. Levison informs the Court that Lavabit LLC will not comply, th t governmentrequests that the Court impose a fine of $1 000 per day, commencing July 17, 2013, until LavabitLLC fully complies with the pen register order.

13 . To the extent that Lavabit LLC takes the position that the pen register does not

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EXHIBIT 13


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101112131415161718

UNITED STATES DISTRI CT COURTEASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

IN THE MATTER OF THEAPPLICATION OF THE UNITEDSTATES OF AMERICA FOR ANORDER AUTHORIZING THEINSTALLATION AND USE OF F.PEN REGISTER/TRAP AND TRFEDEVICE ON AN ELECTRONICM.D.IL ACCOUNT

))))

1013 EC 297) . UNDER SEAL))))

Alexandr i a , Virg in iaJuly 16, 201310 : 41 a . m.

TRANSCRIPT OF HEARINGBEFORE THE HONORABLE CLAUDE M. HILTON

UNITED STATES DISTRICT JUDGE

19 APPEARANCES ,2021

222324

For th e United Sta t e s :

For th e Respondent :Cour t Repor t e r :

James Trump, Esq.Andrew Peterson, Esq.Brandon Van Grack, Esq.Michael Ben'Ary, Esq .Ladar Levison, RespondentTracy L . Wes t f a l l , RPR, CMRS, CCR

Proceedings repor ted by machine shorthand, t r ansc r ip t produced25 by computer-aided t ranscr ip t ion .

Tracy L. Westfa l l OCR-USOC/ED


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1 any quest ion as to whether Mr. Levison would be required to2 provide these keys, it ' s no w subjec t both to the pen r eg i s t e r3 order and the search warrant , the se izure warrant .4 Tha t ' s where we s tand, Your Honor. I f Mr . Levison5 agrees to comply with th e order , we would not seek any6 sanc t ions . We would ask tha t he be d i rec t ed to for thwi th make7 his se rvers ava i lab le so the FBI can i n s t a l l t h a t device and to8 ex t r ac t the encrypt ion keys .9 I f , however, he informs the Court he i s not wil l ing to

10 comply with the order , we would ask the Court to impose11 sanc t ions . We suggested in our pleading a thousand dol la rs a12 day to be paid to the United Sta tes government un t i l he13 complies . I f he doesn ' t comply with t h a t sanct ion , then we14 would be back in court seeking sanct ions or charging15 addi t iona l of fenses .1617

THE COURT : A ll r ight . Mr . Levison .MR. LEVISON : Good morning, Your Honor. I ' m not sure

18 what order I should make these in , but I would l ike to request a19 couple of th ings by motion .20 I 'd l ike to move t ha t a l l of the nonsensi t ive port ions21 of the documents tha t were provided, i . e . , everything except the22 account in quest ion , be unsealed. I be l ieve it's important for23 the indus t ry and the people to understand what the governmenL i s24 request ing by demanding tha t I turn over these encrypt ion keys25 for the en t i re se rv ice .

Tracy L. We3tfal l OCR-UeOC!EDV


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1 THE COURT : All r igh t . What do you say to tha t ,2 Mr. Trump? Deal with the motions before I __3 MR . TRUMP : What Mr . Levison i s t ry ing to do, Your4 Honor, i s inv i t e indus t ry to come in and l i t i g a t e as a sur roga t5 for him the issue of whether the encryption keys are part and6 parcel of the pen r eg i s te r order . And t ha t ' s one of the reason7 we sought the search warrant , to make it clear, whether through8 the search warrant or pen r eg i s t e r order , he i s requi red to9 provide these keys .

10 We knoH he 's been in contact with at torneys who also11 represent industry groups and others who have l i t iga ted issues12 l ike th i s in the WikiLeaks context and others . But we would13 object to unsealing th i s matter because it ' s jus t Mr. __14 THE COURT : And they've done tha t in connection with15 the issuance of a pen reg is ter?16 MR . TRUr-1P : They have l i t i ga ted privacy-related issues17 in the context of process under 2703 . I 'm not sure - - not a pe18 r eg i s te r , but with respect to 2703 .19 But we discussed th i s i ssue with Mr . Levison and his20 counsel by confe r ence ca l l . We indicated tha t the only data21 tha t the government seeks is th a t which i s r equired by the pen22 r eg i s te r order . That it's jus t the basic header to e-mail23 t r a f f i c , sender, recipient , time , durat ion, t ha t sor t of thing .24 I f Mr . Levison wants to object to providing the keys,25 he can cer ta in ly object to doing tha t and then we can proceed

L. OCR-OSOC/EOV


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1 information, to f ac i l i t a t e the pen reg i s te r .2 This morning the search warrant required3 THE COURT : Yeah, but the search warrant ' s a d i f f e ren t4 matter now . That ' s not before me t h i s morning . The only ching5 t ha t ' s before me t h i s morning i s the pen reg i s t e r .67

MR . TRUMP : Correct .THE COURT: So as I understand i t , my i n i t i a l order

8 ordered nothing but t ha t the pe n reg i s te r be put in place.9 MR . TRUMP : And a l l technica l ass i s t ance , information,

10 and f ac i l i t i e s necessary to implement the pen reg i s t e r . And11 it's our pos i t ion t hat without the encrypt ion keys, the data12 from the pen reg i s t e r wil l be meaningless. So to f ac i l i t a t e the13 ac tua l monitoring required by the pen reg i s t e r , the FBI a lso14 requires the encrypt ion keys .15 THE COURT: Well, t ha t could be, but I don ' t know tha t16 I need - - I don ' t know tha t I need to reach t ha t because I 've17 issued a search warrant for t ha t .18 MR. TRUMP : Correct , Your Honor. That the - - to avoid19 l i t i ga t ing t h i s i ssue , we asked the Court to ente r the se izure20 warrant .21 THE COURT : Well, what I ' m saying i s i f he agrees tha t22 the pen reg i s t e r be es tabl i shed , and t ha t the only thing he23 doesn ' t want to do in connect ion with the pen reg i s t e r i s to24 give up the encrypt ion device or code25 MR. LEVISON : I 've always maintained tha t .

Tracy L. OCR-USDC/EDV


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1 followed by a compulsion order from Judge Buchanan . The2 compulsion order required the enc r yption keys to be produced .3 So, yes, par t of the show c ause order i s to require4 compliance both with the pen r eg i s te r order and the compulsion5 order i ssued by Judge Buchanan .6 And th a t o rder , which was at tached to the show cause7 order , s ta tes , "To the extent any information, f ac i l i t ies , or

8

B technical ass is tance are under the cont rol of Lavabit are needed9 to provide the FBI with the encrypted data, Lavabit shal l

10 provide such information, f ac i l i t i e s , or technical assis tance11 forthwith ."12 MR. LEVISON : I would objec t to tha t statement . I13 don ' t know i f I ' m wording th i s cor rec t ly , but what was in tha t14 order to compel was a statement tha t was incor r ect .15 Agent Howard seemed to bel ieve tha t I had the abi l i ty16 to encrypt the e -ma i l content stored on ou r servers , which i s17 not the case . I only have the keys tha t govern communications18 in to and out of the network , and those keys are used to secure19 the t r a f f i c for a l l users , not jus t the user in question .20 So the statement in tha t order compelling me to decrypt21 s tu f f and Agent Howard s t a t i ng tha t I have t he abi l i ty to do22 tha t i s techni ca l ly fa l se or incorrect . There was never an23 expl ic i t demand tha t I turn over these keys .24 THE COURT : I don 1t know what bearing tha t would have,25 would i t ? I mean, I don1t have a problem - - Judge Buchanan

' r r / lCY L. We::l t fa l l OCR-I.iSDCJEDVA


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tJNDER SEAL 10

1 i t . We can ' t take i t from him involuntari ly .2 MR . LEVISON : I f I may, s i r , my other3 THE COURT : Wait jus t a second .4 You're t rying to get me ahead . You're t rying to get me5 to deal with a contempt before there ' s any contempt , and I have6 a problem with that .7 MR . TRUMP: I'm t r ying to avoid contempt al together ,8 Your Honor .9 THE COURT: I know you are . And I 'd love for you-all

10 to get togethe.r and do tha t . I don I t want to deal with it11 e i ther . But I don ' t think we can s i t around and agree tha t12 there ' s going to be a defaul t and I wil l address i t before it13 occurs.14 MR . TRUMP: I 'm jus t t rying to figure out whether15 there ' s going to be a defaul t . We'll take care of that , Judge .16 THE COURT : You can . I th ink the way "'e' ve got to do17 th is - - and I'll l i s t en to you . I'm cut t ing you off , I know,18 but I'll l i s t en to you in a minute.19 The way we have to do th i s , the hearing tha t ' s before20 me th i s morning on th i s issue of the pen regis ter , t ha t ' s been21 resolved, or so he 's told me . I don ' t know whether you want to22 continue th i s one week and see i f he complies with tha t , which I23 guess would be prudent to do, or a few days for him to comply24 with the pen r eg i s te r . Then we Hil l wait and see \'Jhat happens25 with the SUbpoena .

Tracy L.


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ONDER SEAL 14

1 do something in f ront o f Judge Buchanan or not .2 MR. LEVISON : You see, Judge , though that I 've always3 been wi l l i n g . They j u s t d i d n ' t f ee l th e need to s e t up an4 appointment .5 THE COURT : What do you want me to do with th is case?6 You want me to continue i t? You want me to say it's moot r ight7 now and j u s t end i t ?8 MR . TRUMP : No . I th ink we can continue it. I don ' t9 know Mr . Levi son ' s schedule . I t can be done within hours of h is

10 re turn to Dallas .11 THE COURT : Of course he can . You want to continue iL12 till a week from Friday?1314

MR . TRUMP : Or a week from today.MR . LEVISON : I ' m not avai lable within hours of my

15 r e tu rn , b ut I can meet with yo u on Thursday .161718192021

THE COURT : Let ' s continue i t a week from Friday .HR . TRUMP : A week from E'riday .THE COURT : What date ' s that? TheTHE CLERK , 26th .THE COURT: The 26th?MR . LEVISON : Acceptable to me .

22 THE COURT : We ' ll continue it to the 26th, and tha t ' s23 for determining whether or not tha t pen reg is te r has been24 i n s t a l led as you request .25 We can make it 10 o'clock .

TrDCy L. OCR-USDC/EDVA


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IN THE UNITED STATES DISTRlCT COURT FOR THEEASTERN DISTRICT OF vtRGINIA

Alexandria Division

IN TilE MATTER OF THEAPPLICATION OF THE UNITEDSTATES AUTHORlZING THE USEOF A PEN REGISTER/TRAPAND TRACE DEVICE ON ANELECTRONIC MAIL ACCOUNTIN THE MATTER OF THE SEARCHAND SEIZURE OF INFORMATION

1'1-1A'1'IS.vJ"""'U AT

PREMISES CONTROLLED BYLAVABlT LLCIn re Grand Jury

FILED UNDER SEAL

No. 1:13EC297

No. 1: 13SW522

No. 13-1

MOTION TO QUASH SUBPOENA AND SEARCH WARRANT ANDMEMORANDUM OF LAW IN SUPPORT OF MOTION

Lavabit LLC CT.avabit'') and Mr. Lader Le\tinson ("Mr. Levinson") movethis Court to quash the grand jury subpoena and search and seizure warrantserved on them by the Federal Bureau of Investigation and the Office of theUnited States Attorney (collectively ('Government").

BACKGROUNDLavabit is an encrypted email service provider. As such, Lavabit's

business model focuses on providing private and secure email accounts to it scustomers. ,Lavabit uses various encryption methods, including secured socketlayers f'SSL"), to protect its users' privacy. Lavabit maintains an encryption

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Though the Lavabit Subpoena and Warrant superficially appears to benarrowly tailored, in reality, it operates as a general warrant by giving theGovernment access to every Lavabit user's communications and data.It is not what the Lavabit Subpoena and Warrant defines as tbe boundaries forthe search, but the method of providing access for the search which amounts toa general warrant.

It is axiomatic that th e Fourth Amendment prohibits general warrants.Andresen v. Maryland, 427 U.S. 463, 48 0 (1976). Indeed "it is familiar historythat indiscriminate searches and seizures conducted under the authority of'general warrants were the immediate evils that motivated the framing andadoption of the Fourth Amendment." Payton v. New York, 445 U.S. 573, 583(1980) (footnote omitted) . To avoid general warrants, the Fourth Amendmentrequires that "the place to be searched" and "the persons or things to be seize::d"be described with particularity. United States v. Moore, 775 F. Supp. 2d 882 .898 (E.D. Va. 2011) (quoting United States v. Grubbs, 547 U.S. 90 , 97 (2006)).

The Fourth Amendment's particularity requirement is meant to "prevent[Jth e seizure of one thing under a warrant describing another." Andresen, 427U.S. at 480. This is precisely the concern with the Lavabit Subpoena andWarrant and, in this circumstance, the particularity requirement will notprotect Lavabit. By turning over the Master Key, the Government will have theability to search each and every "place,'" "person [and] thing" on Lavabit'snetwork.

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The Lavabit Subpoena and Warrant allows the .Governmentto do a."general, exploratory rummaging" through any Lavabit user account. See id.(quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)) (describing theissue with general warrants "is not that of intrusion per se, but of a general,exploratory rummaging in a person's belongings"). Though the LavabitSubpoena and Warrant is facially limited to the EmailAddress, theGovernment wou ld be able to seize communications, data and information fromany account once it is given the Master Key .

.There is nothing other than the "discretion of the officer executing thewarranf1 to prevent an invasion of other Lavabit user's accounts and privateemails.Seeid. at 492 (quoting Sta"ford v. Texas, 379 U.S. 476, 485 (1965))(explaining that the purpose of the particularity requirement of the FourthAmendment is to ensure, "With regards to what is taken that,


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reasonable expectation in protecting it. Because Lavabit has a reasonableexpectation "Of privacy for it s Master Key, the Lavabit Subpoena and Warrantviolate the 'Fourth Amendment. See Twitter, 830 F. Supp. 2d at 141 (citingUnited States u. Calandra, 414 U.S. 338, 346 (1974)) (noting "The grand juryis.. .without power to invade a legitimate privacy interest protected by th eFourth Amendment" and that "a grand jury's subpoena ..will be disallowed if itis far too sweeping in its terms to be ..reasonable under the FourthAmendment.").

CONCLUSION[?or the foregoing reasons, Lavabit and Mr. Levinson respectfully move

tIlis Court to quash the search and seizure warrant and grand jury subpoena.Further, Lavabit and Mr. Levinson request that this Court direct that Lavabitdoes not have to produce it s Master Key. Alternatively, Lavabit and Mr.Levinson reques t that they be given an opportunity to revoke the.currentencryption key and reissue a new encryption key at the Government's expense.Lastly, Lavabit and Mr. Levinson request that, if they is required to produce theMaster Key, that they be reimbursed for its costs which were directly incurredin producing the Master Key, pursuant to 18 U.S.C. 2706.

8

LAVABITLLCBy Counse l


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" ., Certificate of ServiceI certify fuat on thisZ.9day of July, 2013, this Motion to Quash

Subpoena and Search Warrant and Memorandum of Law in Support was handdelivered to the pe rson at the addresses listed below:

Eastern District of Virginia2100 Jamieson Avenue

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EXHIBIT 16


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Levinson has been unjustly restrained from contacting Lavabit subscribers whocould be subjected to government surveillance if Mr. Levinson were forced tocomply the Lavabit Order. Lavubit's value is embodied)n its complexencryption keys, which provide it s subscribers with privacy and security. Mr.Levinson has been unwilling to tUrn over these valuable keys because theygrant access to his entire network. In order to protect Lavabit, which caters tothous


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ordered by the court". 18 U.S.C. 3121-27. Similarly, th e Wiretap Act,another surveillance statute, expressly directs that applications and ordersgranted under its provisions be sealed. 18 U.S.C. 2518(8)(b). The SCA'sfailure to provide for sealing is not a congress ional oversight. Rather, Congresshas specifically provided for sealing provisions when it desired. WhereCongress includes particular lan guage in one section of a statute but omits itin another, it is generally assumed that Congress acts intentionally. KeeneCorp. v. United States, 508 U.S. 200, 208 (1993). Therefore, there is nostatutory basis for sealing an application or order under the SeA that wouldovercome the common law right to access.

c. Privacy Concerns Demand A Common Law Public Right o r AccessTo The Sealed DocumentsThe leaking of classified government practices by Edward Snowden and

the ensuing mas s surveillance scandal have sparked an intense national andinternational deba te about government surveillance, privacy rights and othertraditional freedoms. I t is concerning that suppressing Mr. Levinson's speechand pushing its subpoena power to the limits, the government's actions may beviewed as accomplishing another unfounded secret infringement on personalprivacy. A major concern is that this could cause people worldwide to abandonAmerican service providers in favor of foreign businesses because the UnitedStates cannot be trusted to regard privacy.l I t is in the best interests of theMovant's and the government that the documents in this matter not be

. I Sec Dan Roberts, NSA Snooping: Obama Under Prest>"Ure as Senator Denounces 'Act ofTreason', The Guard i.an, June 10 , 2013, http://www.guardian.co.uk / world/2 01 3/jun110/0bama pressured-explain nsa-su rveillance.

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A. Section 2703(d) OrderThe criminal investigation has revealed uti lized and continues

to utilize an e-mail ac(:oun(,

United States obtained an order pursuant to 18 U.S.C. 2703(d) directing Lavabit toprovide, within ten days, additional records and informationaccount. Lavabit's owner and operator, Mr. Ladar Levison, provided very little of {heinfannalion sought by the June 10.2013 orde r.

S. Pen-Tr:lp OrderOn June 28, 2013, the Honorable Theresa C. Buchanan ente red an Order pursuant

to 18 U.S.C. 3123 authorizing the installation and use of pen-trap device on allc:Iectronic communications being sent from or sent to the electronic mail account

("I'en.Trao Order"). The Pen-Trap Order authorized thegovernment to capture all (i) "non-content" dialing, routing, addressing, and signalinginformation sent 10 or Oi) to record the date andtime of the initiation and receipt of such transmissions, to record the duration of thetransmissions, and 10 record lIser log-in data on for aperiod of sixty days. Judge Buchanan further ordered Lavabit to furnish agents of theF'edeml Bureau of Investigation ("FBI"), "forthwith, all information, facilities. andtechnical assistance necessary to accomplish the installation and use of the pen-trap

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D. Order to Show CauseMr. Levison did not comply with the Compliance Order. Qn July 9, 2013, this

Court ordered Mr. Levison to appear on July 16,2013, to show cause why Lavabit hasfailed to comply with the Pen-Trap Order and Compliance Order.

The following day, on July 10,2013, the United States Attorney's Office arrangeda conference cal! involving the United States Attorney's Office, the FBI, Mr. Levison andMr. Levison's attorney at the time, Marcia Hofinann. During this call, the partiesdiscussed implementing the pen-trap device in light of the encryption in place on thetarget e-mail account. The FBI explained, and Mr. Levison appeared to agree, that toinstall the pen-trap device and to obtain the unencrypted data stream necessary for thedevice's operation the FBI would require (i ) access to Lavabit's server and (ii) encryptionkeys.

E. Grand Jury SubpoenaOn July 11, 2013, the United States Attorney's Office issued a grand jury

subpoena for Mr. Levison to testify in front of the grand jury on July 16,2013. Thesubpoena instructed Mr. Levison to bring to the grand jury his encryption keys and anyother infonnat ion necessary to accompli sh the installation and use of the pen-trap devicepursuant to the Pen-Trap Order. I The FBI anempted to serve the subpoena on Mr.Levison at his residence. After knocking on his door, the FBI Special Agents witnessedMr. Levison exit his apartment from a back door, get in his car, and drive away. Later in

the evening, the FBI successfully served Mr. Levison with the subpoena.

I The grand jury subp


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"[al11 information necessary to decrypt data stored in or otherwise associated with theLavabit 'CC'OUllt Pursuant to 18 USC. 2705(b), the Courtordered Lavabit to not disclose the existence of the search warrant upon determining that"there is reason to believe that notification of the existence of the . . . warrant willseriously jeopardize the investigation, including by giving target an opportunity to flee orcontinue flight from prosecution, destroy or tamper with evidence, change patterns ofbehavior, or noti fy confederates." July 16, 2013 Order ("Non-Disclosure Order") at \ .

G. Rule 49 Sealing OrderThe search warrant and accompanying materials were further sealed by the Court

on July 16,2013, pursuant to a Local Rule 49(B) ("Rule 49 Order"). In the Rule 49Order, the Court found that "revealing the material sought to be sealed would jeopardizean ongoing criminal investigation." The sealing order was further justifted by the Coun'sconsideration of available alternatives that are less drastic than sealing, and finding nonewould suffice to protect the government's legitimate interest in concluding theinvestigation; and having found that this legitimate goverrunent interest outweighs at thistime any interest in the disclosure of the material." Rule 49 Order at I.

H. Show Cause HearingAt the Show Cause Hearing on July 16, 2013, Mr. Levison made an oral motion

to unseal the proceedings and related filings. The government objected since unsealingthe proceedings wou ld jeopardize the ongoing criminal investigation The

Court denied Mr. Levison's motion. Mr. Levison subsequently indicated to the Courtthat he would permit the FBI to place a pen-trap device on his server. The governmentrequested that the Court further order Mr. Levison to provide his SSL keys since placing

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a device on Lavabi l's server would only provide encrypted infomlation thatwould not yield the information required under the Trap Order. The governmentnoted that Lavabit was also required to provide the SSL keys pursuant to the searchwarrant and grand jury subpoena. The Court determined that the government's requestfor the SSL keys was premature given that Mr. Levison had offered to place thedevice on his server and the Court's order for a show cause hearing was only based onthe failure to comply with the Order. Accordingly, the Court scheduled ahearing for July 26. 2013, to determine whether Lavabit was in compliance with theTrap Order after a pen-trap device was installed.

I. Motion to Unseal and Lift No n-Disclosure OrderOn July 25, 2013, Mr. Levison filed two motions-a Motion for Unsealing of

Sealed Court Records ("Motion to Unseal") and a Motion to Quash Subpoena and SearchWarrant (


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pentmp, and "no claim is made that it was in any way inconsistent with the FourthArnendment.").

8. Lavabit's motion 10 quash the search warrant muse be denied becausethere is no statutory authority for such motions, and (he search warranI islawful in any event.

1. Lavabit lacks authority to move to suppress a searchwa..TTant.Lavabit lacks authority to ask this Court to "quash" a search wru:rant before it is

executed. The search warrant was issued under Tit!e II of ECPA, 18 U.S .C. 2701-2712. ECPA allows providers such as Lavabit to move to quash court orders, but doesnot create an equivalent procedure to move to quash search warrants. 18 U.S.C. 2703(d). The lack ofa corresponding motion to quash or modify a search warrantmeans that there is no statutory authority for such motions. See 18 U.S.C. 2708 ("[tJheremedies and sanction:; described in this chapter are the on ly judicial remedies andsanctions for nonconstitutional violations of this chapter."); c f In re ApplicaTion of heU.S.for an Order Pursuant 10 18 u.s.c. 2703(d), 830 F. Supp. 2d 114, 128-29 (E.D.Va. 2011) (holding that the lack of a specific provision in ECPA permitting users to moveto quash coun orders requires "the Court [to] infer that Congress deliberately declined topenni! (suchl challenges.").

2. The search warrant complies with the Fourth Amendmentand is not general.The Founh Amendment requires that a search warrant "particularly describe[e]

the place to be searched, and the persons or things to be seized." U.S. Const. Am. [Y .This "particularity requirement is fulfilled when the warrant identifies the items to beseized by their relation to designated crimes and when the description of the items leaves


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a "general search" of the entire apartment building-even if the building owner imaginesthat undisciplined agents will illegally kick down the doors to apartments not described inthe warrant.

C. Lavabft's motion /0 quash the subpoena must be denied becausecompliance would not be unreasonable or oppressiveA grand jury subpoena "may order the witness to produce any books, papers,

documents, data, or other objects the subpoena designates," but the court "may quash ormodify the subpoena if compliance would be unreasonable or oppressive." Fed. R. enrn.P. 17(c)(I) & (2); see In re Grand Jury. John Doe No. G.J.2005-2. 478 F.3d 581 , 585(4th Cir. 2007) (recognizing courts may quash subpoenas that are "abusive orharasSing")?

Lavabit argues the subpoena should be quashed because it "grant[s] theGovernment unlimited access to every one of its user's accounts." MOL to Quash at 7.As explained above, the subpoena does no such thing: It merely reaffinns Lavabit 'sexisting obligation to provide infonnation necessary to implement this Court' s PenTrapOrder on a single Lavabit customer's email account. The PenTrap Order furtherrestricts the government's aCC 'ess by preventing the government from collecting thecontent of that Lavabit customer's email communications.

Lavabit also argues that it will lose customers' trust and business ifit they Jearnthat Lavabit provided the SSL keys to the government. But Lavabit finds itself in theposition of having to prod.uce those keys only because, more than a month after the PenTrap Order, Lavablt has failed to assist the government to implement the pentrap device.1 t.llvabit cites 18 U.S.C. 2703(d) as authority for its motion to quash, but that section by its tl:rms onlypennits motions to quash court orders issued under that same section.

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Any resulting los s of customer "trust" is not an "unreasonable" burden if Lavabit'scustomers trusted that Lavabil would refuse to comply with lawful court orders. Allproviders are statutorily required to assist the government in the implementation of pen-traps, see 18 U.S.C. 3124(a), (b), and requiring providers to comply with that statute isneither "unreasonable" nor "oppressive." In any event, Lavabit's privacy policy tells itscustomers that "Lavabit will not release any information related to an individual userunless legally compelled to do so." See hnp:!llavabit.comiprivacy policy.html (emphasisadded).

Finally, once courtordered surveillance is complete, Lavabit will be free tochangc its SSL keys. Vendors sell new SSL certificates for approximately $100. See,e.g. , GoDaddy LLC, SSL Certificates, https://www.godaddy.comlssl/ssl-certificates.aspx.Moreover, Lavabit is eniitled to compensation "for such reasonable expenses incurred inproviding" assistance in implementing a pentrap device. 18 U.S.C. 3124(c).

11 . THE NON-DISCLOSURE ORDER IS CONS ISTENT WITH THE f1RSTAMENDMENT BECAUSE IT IS NARROWLY TAILORED TO SERVEWHAT ALL PARTIES AGREE IS A COMPELLING GOVERNMENTINTERESTLavabit has asked the Court to unseal all of the records sealed by this Court's

Order to Seal, and to lift the Court's Order dated July 16,2013, directing Lavabit not todisclose the existence of the search warrant the Court signed that day ("Non-DisclosureOrder"). Motion for Unsealing of Sealed Court Records and Removal ofNon-Disclosure Order ("Mot. to Unseal") at 12. Lavabit, however, has not identified (andcannot) any compelling reason sufficient to overcome what even Lavabit concedes is thegovernment 's compelling interest in maintaining the secrecy and integrity of its active

Moreover, the restrictions arc narrowly tailored to restrict

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Lavabit from discussing only a limited set of information disclosed to them as part of thisinvestigation. Because there is no reason to jeopardize the criminal investigation, thismotion must be denied.

A. The Non-Disclosure Order survives even strict scrutiny review byimposing necessary bur limited secrecy obligations on Lavabi(The United States does not concede that strict scrutiny must be applied in

reviewing the Non-Disclosure Order. There is no need to decide this issue, however,because the Non-Disclosure Order is narrowly tailored to advance a compellinggovernment interest, and therefore easily satisfies strict scn!tiny.

Tne Government has a compelling interest in protecting the integrity of on-goingcriminal investigations. Virginia Dep" ofState Police v. Wash. Post, 386 FJd 567, 579(4th Cir. 2004) ("We note initially our complete agreement with the general principle thata compelling governmental interest exists in protecting the integrity of an ongoing lawenforcement investigation"); Branzbl.lrg v. Hayes, 408 U.S. 665,700 (1972)("requirements .. . that a State's interest must be 'compelling' .. .are also met here. As wehave indicated, the investigation of crime by the grand jury implements a fundamentalgovernmental role of securing the safety of the person and property of the citizen . ..").Indeed, it is "obvious and unarguable that no government interest is more compellingthan the secunty of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981) (internalquotation marks omitted); see also Depf a/the Navy v. Egan, 484 U.S. 518, 527 (1988)("This Court has recognized the Government's 'compelling interest' in withholdingnational infonnat ion from unauthorized persons in the course of executivebusiness"). Likewise, here, the United States clearly has a compelling interest inensuring that the target oflaVlf'uI surveillance is not aware that he is being monitored.

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United States v. Aguilar, 515 U.S. 593,606 (1995) (holding that a statute prohibitingdisclosure ofa wiretap was permissible under the First Amendment, in part because"[w]e think the Government's interest is quite sufficient to justify the construction of thestatute as written, without any artificial narrowing because of First Amendmentconcerns"). As the Non-Disclosure Order makes clear, publicizing "the existence of the[search] warrant will seriously jeopardize the investigation, including by giving targets anopportunity to flee or continue flight from prosecution, destroy or tamper Mth evidence,change patterns of behavior, or notify confederates."

Lavabit acknowledges that '


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infonnation that the recipient only learned from the government's need to effectuate alegitimate, j Lldicially sanctioned fonn of monitoring. a narrow limitation oninfonnation acquired only by virtue of an official investigation does not raise the sameconcems as other injunctions on speech. Cf Rhinehart, 467 U.S. at 32, Doe v. Mukasey,549 F.3d at 877 ( "[t]he requirement" imposed by the national securitytetter statute "is not a typical prior restraint or a typical content-based restrictionwarranting the most rigorous first Amendment scrutiny").

III. NO VALID BASIS EXISTS TO DNSEAL DOCUMENTS THAT, IF MADEPUBLIC PRE-MATURELY, WOULD JEOPARDIZE AN ON-GOTNGCRIMINAL INVESTIGAnONA. Any common law righl ofaccess is outweighed by the need to protecl theintegriry of he investigalian.Lavabit asserts that the cornmon law right of access necessitates reversing this

Court's decision to seal the search warrant and supporting documents. Mot. to Unseal at7-10. The presumption of public access to judicial records, however, is "qualified/' BaIt.Sun Co. Y. GoelZ, 886 F.2d 60, 65 (4th CiT. 1989), and rebuttable upon a showing that the"public's right of access is outweighed by competing interests," In re Application a/rheU.S/or an Order Pursuant ta 18 U.S.C. Section 2703(d), 707 F.3d 283, 290 (4th Cir.2013) ("Twitter"). In addition to considering substantive interests, a judge must alsoconsider procedural alternatives to sealing judicial records. TWitter, 707 F.3d at 294."Adherence to this procedure serves to ensure that the decision to seal materials will notbe made lightly and that i l will be subject to meaningful appellate review." Va. Dep 'l 0/Slate Police v. Wash. POS!, 386 F.3d 567, 576 (4th Cir. 2004). This standard is met easilyhere.

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"[TJhe common Jaw does not afford as much substantive protection to theinterests of the press and the public as does the First Amendment." Twiuer, 707 FJd at290 (internal quotation marks omitted). With respect to the substantive equities at stake,the United States' interest in maintaining the secrecy of a criminal investigation toprevent the target of the surveillance from being alerted and altering behavior to thwartthe surveillance dearly outweighs any public interest in learning about specific acts ofsurveillance. let. at 294 (rejecting common law right of access because, inter alia, thesealed documents "set forth sensitive non-public facts, including the identity of targetsand witnesses in an ongoing criminal investigation"). "Because secrecy is necessary forthe proper functioning of the crimina! investigation" prior to indictment, "openness willfrustrate the government's operations." ld. at 292. Lavabit concedes that ensuring "thesecrecy of[Stored Communications Act] investigations," like this, "i s a compellinggovernmenf interest." Mot. to Unseal at 8 (emphasis added). Lavabi t does not, however,identify any compelling interests to the contrary. Far from presenting "a seriouslyconcerning expansion of grand jury subpoena power," as Lavabit's contents, id., a judgeissued the Pen-Trap Order, which did not authorize monitoring of any Lavabit e-mailaccount other

In addition, the Coun satisfied the procedural prong. It '''considered the availablealternatives that are less drastic than sealing, and [found] none would suffice to protectthe government's legitimate interest in concluding the investigation." Rule 49 Order.

The Fourth Circuit's decision in Twitter is instructive. That case arose from theWikileaks investigation of Army pre, Bradley Manning. Specifically, the governmentobtained an order pursuant to 18 U.S.C. 2703(d) directing Twitter to disclose electronic

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interests"); see also Media General Operations, fnc. v. Buchanan, 417 F3d. 424, 430 (4thCir. 2005); United States v. U.S. Dist. Court., 407 U.S. 297, 321 (1972) ("a warrantapplication involves no public or adversary proceedings: it is an ex parte request before amagistrate or judge."). In addition, the Court here exercised its authority to seal pursuantto Local Rule 49(B), the validity of which Lavabit docs not contest.

Even i f the Court did not have this authority, Lavabit's reading of 2705(b) mustbe rejected, because it would gut the essential function of non disclosure orders andthereby disregard Congress' clear intent in passing 2705. The Section allows courts todelay notification pursuant to 2705(a) or issue a non-ciisciosure order pursuant to 2705(b) upon finding that disclosure would risk enumerated harms, namely danger to aperson's life or safety, flight from prosecution, destruction of evidence, intimidation ofwitnesses, or seriously jeopardizing an investigation. 18 U.S.C. 270S(a)(2)(A)-(E),(b)(l)-(5). It would make no sense for Congress to purposefully authorize couns to limitdisclosure of sensitive information while simultaneously intending to allow the sameinfonnatien to be publicly accessible in an unsealed court document.

Finally, the implications Lavabit attempts to draw from the mandatory sealingrequirements of 18 U.S.C. 2SI8(8)(b) and 3123(a)(3)(B) are mistaken. While Layabitcharacterizes those statutes as granting courts the authority to seal Wiretap Act and pe.n-trap orders, courts already had that authority. Those statutes have another effect: theyremoved discretion from courts by requiring that courts seal Wiretap Act orders and pen-

trap orders. See 18 U.S .C. 2S18(8)(b) ("Applications made and orders granted underthis shall be sealed by the judge") (emphasis added); id. 3123(a)(3)(B) ("Therecord maintained under subparagraph (A) shall be provided ex parte and under seal 10

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the court") (emphasis added). Congress' decision to leave that discretion il l place inother situations does not mean that Congress believed that only Wiretap Act and pen-traporders may be sealed.

C Supposed privacy concerns do not compel a COmmon law right ofaccessTO [he sealed documenrs.

Lavabit's brief ends with an argument that privacy interests require a commonlaw right of access. Mot. to Unseal at 10 11 . Lavabit, however, offe rs no legal basis forthis Court to adopt such a novel argument, nor do the putative policy considerationsLavabit references out\Veigh the government's compelling interest in preserving thesecrecy of its ongoing criminal investigation. the most compelling interestcurrently before the Court is ensuring that the Court 's orders requiring that Mr. Levisonand Lavabit comply with legitimate monitoring be implemented forthwith and withoutadditional delay, evasion, or resistance by Mr. Levison and Lavabit.


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CONCLUSIONFor the foregoing reasons, Lavabit's motions should be denied. Furthermore, the

Court should enforce the Pen-Trap Order, Compliance Order, search warrant, and grandjury subpoena by imposing sanctions until Lavabit complies.

By:

Respectfully Submitted,NEIL H. MACBRIDE

Assistant Uruted States AttorneyUnited States Attorney's Office2100 Jamieson Ave.

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CERTIFICATE OF SERVICEi hereby certify that on July 31, 2013, I e-mailed a copy of the foregoing

document to Lavabit's Counsel of Record:Jesse R. BinnaJlBronley & Binnoli, PLLC10387 Main Suite 201Fairfax, V A 22030

Assistant United States AttorneyUnited States Attorney's Office2100 Jamieson Ave.

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF VIRGINIAALEXANDRIA DIVISION

IN THE MATTER OF THEAPPLICATION OF THE UNITEDSTATES AUTHORIZING THE USEOF A PEN REGISTER/TRAP ANDTRACE DEVICE ON ANELECTRONIC MAIL ACCOUNTIN THE MATTER OF THE SEARCHAND SEIZURE OF INFORMATION

PREMISES CONTROLLED BYLAVABIT, LLCIN RE GRAND JURY SUBPOENA

)))))))))))))))))))))))

NO . 1 , 13 EC 297

NO . 1 : 13 SW 522

NO . 13 - 1UNDER SEAL

Alexandr ia , VirginiaAugust 1, 201310 : 00 a.m.

TRANSCRIPT OF HEARINGBEFORE THE HONORABLE CLAUDE M. HILTON

UNITED STATES DISTRICT JUDGE

APPEARANCES ,For th e United Sta tes :

For th e Respondent :

James Trump, Esq.tHchael Ben' Ary, Esq .Josh Goldfoot , Esq .Jesse R. Binna l l , Esq .

Court Reporter : Tracy L . West fa l l , RPR, CMRS, CCR25 Proceedings reported by machine shorthand, t ranscr ip t produced

by computer - a ided t ranscr ip t ion .

1

Tracy L . Westfall OCR-US!)C/EDV'


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1 PRO C E E D IN G S2 THE CLERK : In re : Case Nos . 1 : 13 EC 297, 1:13 SW 522,3 and Grand Jury No . 13- l .4 MR. TRUMP : Good morning . Jim Trump on behalf of the5 United Sta tes .67

THE COURT : Good morning.MR . BINNALL : Good morning , Your Honor. Jesse Binnall

8 on beha l f of Lavabit and Mr . Levison .9

10THE COURT : All r ight .MR . BINNALL : May it please the Court . We're before

11 the Court today on two separa te motions, a motion to quash the12 requirement of Lavabit to produce i t s encryption keys and the13 motion to unseal and lift the nondisclosure requirements of14 Mr . Levison.15 Your Honor, the motion to quash in th i s ar ises because16 the privacy of users i s a t - - of Lavabi t ' s users are a t stake .17 We're not simply speaking of t he t a rge t of th i s inves t iga t ion .18 We're ta lk ing about over 400 , 000 ind iv idua ls and ent i t i es tha t19 are users of Lavabit who use t h i s se rv ice because they bel ieve20 the i r communications are secure .21 By handing over the keys, the encrypt ion keys in t h i s22 case , they necessa r i ly become l e s s secure . In t h i s case it i s23 t rue tha t the face of the warrant i t s e l f does l imi t the24 documents or - - and communications to be viewed and the speci f ic25 metadata to be viewed to the t a rge t of the case,

Tracy L. Westfa l l OCR-USOC/EOVA


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1 Hm-lever, the re i s a lack of any so r t of check or2 balance in order to ensure tha t the - - t h a t the encrypted data3 of o the r Lavabit users remain secure . The encrypt ion in t h i s4 case doesn ' t p ro tec t only content . I t pro tec t s login data and5 the other - - some of the other metadata involved in th i s case .

3

6 We be l ieve tha t t h i s i s not the l eas t re s t r i c t ive means7 in order to provide the government the data t h a t they are8 looking fo r . S p e c i f i c a l l y - -9 THE COURT: You have t 'NO d i f f e ren t encrypt ion codes,

10 one for the 10gins and the messages t h a t are t ransmi t ted . You11 have another code t ha t encrypts the content of the messages ,12 r ight?1314

MR. BINNALL : Your Honor, I be l i eve tha t tha t i s t rue .From my unders tanding of the way tha t t h i s works i s

15 tha t t he re i s one SSL key . That SSL key i s what i s i ssue in16 th i s case , and tha t SSL key spec i f i ca l ly pro tec t s the17 communication, the over - - the breadth of the communication18 i t s e l f from the use r ' s ac tua l computer to the server to make19 sure tha t the user i s communicating with exac t ly who the user20 in tends to be communicating with, the se rve r .21 And t ha t ' s one of the th ings t h a t SSL does . I t ensures22 tha t you ' r e t a lk ing to the r i gh t person via e-mai l and the re ' s23 not a so - ca l l ed man in the middle who's there to take t ha t24 message away .25 THE COURT : Does t h a t key also contain the code of the

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1 message and i n t e r p r e t the message as wel l?2 MR . BINNALL : My unders t and ing i s t h a t it does , Your3 Honor, but because t h a t ' s not my t e chn ica l expe r t i se , I 'm not4 going to rep resen t to the Court anything on t ha t one way o r5 ano the r . But my unders tanding i s the re i s one genera l key here6 t ha t i s a t i s sue .7 THE COURT : why would you s e t up such? I mean, a8 te lephone, you 've got t e lephone numbers and __9

10MR . BINNALL : Corr e c t .THE COURT : those can be t r aced very eas i ly without

11 any look a t th e con ten t of the message t h a t ' s t he re . You-al l12 could have s e t up something the same way .13 MR. BINNALL : We could have, Your Honor . Actual ly , if14 yo u ' re to - -15 THE COURT : So i f anybody's - - you ' r e blaming the16 government fo r something t ha t ' s overbroad , bu t it seems to me17 t ha t your c l i e n t i s the one t ha t s e t up the system t ha t ' s18 designed n ot to pro tec t tha t in fo rmat ion , because yo u know t ha t19 t he re needs to be access to c a l l s t h a t go back and for th to one20 person o r ano the r . And to say you can 't do t ha t j u s t because21 you've se t up a system t ha t everybody has to - - has to be22 unencrypted , i f t h e r e ' s such a word, t h a t doesn ' t seem to me to23 be a very persuas ive argument .24 MR . BINNALL : I unders tand th e Co u r t ' s point , and t h i s25 i s the way t h a t I unders tand why it's done t ha t way .

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UNDER SEAL 5

1 There ' s di fferen t secur i ty aspec ts involved fo r people2 who want to pro tec t t h e i r pr ivacy , and the re ce r t a in ly i s th e3 a c t u a l con ten t o f the message themselves . That ' s ce r t a in ly what4 I would concede i s the h ighest secur i ty i n t e r e s t .S But there ' s also the securi ty in te res t to make sure6 tha t they ' re communicating with who you want to be communicating7 with. That i s equal ly of a concern fo r privacy issues because8 t h a t i s , a t th e end of the day, one of th e th ings tha t secures9 the conte nt of the message .

10 In t h i s case it i s t rue t ha t most In t e rne t service11 providers do log , i s what they c a l l it, a lo t of the metadata12 t ha t the government wants in t h i s case wi thout t ha t necessar i ly13 being encrypted , things such as who something is going to, who1415161718192021

i t ' s going from, the time i t' s being sent , the IP address fromwhich it i s being sent .

Lavabit code is not something tha t you buy off theshel f . I t i s code tha t was custom made . I t was custom made inorder to secure privacy to the l a rges t e xt en t possible and to bethe most secure way possible for mult iple people to communicate,and so it has chosen speci f ical ly not to log tha t in f ormation .

Now, tha t is actual ly information tha t my cl ient has22 offered to s t a r t logging with the par t icu la r user in th is case .23 I t is , however, something tha t i s qui te burdensome on him . I t24 is something tha t would be custom code tha t would take between25 20 to 40 hours for him to be able to produce . We believe tha t

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1 i s a b e t t e r a l t e r n a t i v e than t u rn ing over the enc ryp t ion key2 which can be used to ge t the da ta fo r a l l Lavab it use rs .3 I hope t h a t addres ses th e Co u r t ' s concern kind o f with4 regard to th e metadata and why it i s not more - - why Lavabi t5 h a s n ' t c rea ted an encryp t ion system t h a t may hones t ly be more6 with in th e mains t ream, but t h i s i s a prov ide r t h a t s p e c i f i c a l l y7 was s t a r t e d in o rd e r to have to p r o t e c t pr ivacy i n t e r e s t s more8 than the average I n t e r n e t se rv ice prov ide r .

6

9 THE COURT : I can under s t and why th e system wa s s e t up,10 b ut I th ink th e government i s - - government ' s c lea r ly e n t i t l e d11 to th e in format ion t h a t they ' r e seek ing , and j u s t because12 you-a l l have s e t up a system t h a t makes t h a t d i f f i c u l t , t h a t13 d o es n ' t i n any way l e ssen the government ' s r i g h t to rece ive t h a t14 in fo rmat ion j u s t as they ;.!ould from any te lephone company or any15 o t h e r e -ma i l source t h a t could prov ide it eas i ly . Whether16 it's - - in o t h e r words, th e d i f f i c u l t y o r th e ease in obta in ing17 the in fo rmat ion doesn ' t have anyth ing to do with whether o r not18 th e government ' s l awfu l ly e n t i t l e d to th e i n format ion .19 MR . BINNALL : I t i s - - and w