Lavabit, an encrypted email service believed to have been used by National Security Agency leaker Edward Snowden, has abruptly shut down. The move came amidst a legal fight that appeared to involve U.S. government attempts to win access to customer information. In a Democracy Now! broadcast exclusive, we are joined by Lavabit owner Ladar Levison and his lawyer, Jesse Binnall. "Unfortunately, I can't talk about it. I would like to, believe me," Levison says. "I think if the American public knew what our government was doing, they wouldn't be allowed to do it anymore." In a message to his customers last week, Levison said: "I have been forced to make a difficult decision: to become complicit in crimes against the American people, or walk away from nearly 10 years of hard work by shutting down Lavabit." Levison said he was barred from discussing the events over the past six weeks that led to his decision. Soon after, another secure email provider called Silent Circle also announced it was shutting down.
Transcript
This is a rush transcript. Copy may not be in its final form.
AARON MATÉ: We turn now to the news an encrypted email service believed to have been used by National Security Agency leaker Edward Snowden has abruptly shut down. The move came amidst a legal fight that appeared to involve U.S. government attempts to win access to customer information.
The owner of Lavabit, Ladar Levison, wrote a message online saying, quote, "I have been forced to make a difficult decision: to become complicit in crimes against the American people, or walk away from nearly 10 years of hard work by shutting down Lavabit." Ladar Levison said he was barred from discussing the events over the past six weeks that led to his decision.
He went on to write, quote, "This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would strongly recommend against anyone trusting their private data to a company with physical ties to the United States."
Later on Thursday, another secure email provider called Silent Circle also announced it was shutting down.
AMY GOODMAN: Now, in a Democracy Now! broadcast exclusive, we go to Washington, D.C., where we're joined by Ladar Levison, founder, owner and operator of Lavabit. We're also joined by his lawyer, Jesse Binnall.
We welcome you both to Democracy Now! Ladar Levison, let's begin with you. Explain the decision you made.
LADAR LEVISON: Yeah, well, I'vethank you, Amy. I've compared the decision to that of, you know, putting a beloved pet to sleep, you know, faced with the choice of watching it suffer or putting it to sleep quietly. It was a very difficult decision. But I felt that in the end I had to pick between the lesser of two evils and that shutting down the service, if it was no longer secure, was the better option. It was, in effect, the lesser of the two evils.
AMY GOODMAN: What are you facing? When you say "the lesser of two evils," what was the other choice?
LADAR LEVISON: Unfortunately, I can't talk about that. I would like to, believe me. I think if the American public knew what our government was doing, they wouldn't be allowed to do it anymore, which is why I'm here in D.C. today speaking to you. My hope is that, you know, the media can uncover what's going on, without my assistance, and, you know, sort of pressure both Congress and our efforts through the court system to, in effect, put a cap on what it is the government is entitled to in terms of our private communications.
AARON MATÉ: For those who aren't familiar with what encrypted email is, can you walk us through that and talk about what your service provided?
LADAR LEVISON: Certainly. You know, I've always liked to say my service was by geeks, for geeks. It's grown up over the last 10 years, it's sort of settled itself into serving those that are very privacy-conscious and security-focused. We offered secure access via high-grade encryption. And at least for our paid users, not for our free accountsI think that's an important distinctionwe offered secure storage, where incoming emails were stored in such a way that they could only be accessed with the user's password, so that, you know, even myself couldn't retrieve those emails. And that's what we meant by encrypted email. That's a term that's sort of been thrown around because there are so many different standards for encryption, but in our case it was encrypted in secure storage, because, as a third party, you know, I didn't want to be put in a situation where I had to turn over private information. I just didn't have it. I didn't have access to it. And that was sort ofmay have been the situation that I was facing. You know, obviously, I can't speak to the details of any specific case, butI'll just leave it at that.
AMY GOODMAN: NSA leaker Edward Snowden recently described your decision to shut down Lavabit as, quote, "inspiring." He told The Guardian's Glenn Greenwald, quote, "America cannot succeed as a country where individuals like Mr. Levison have to relocate their businesses abroad to be successful. Employees and leaders at Google, Facebook, Microsoft, Yahoo, Apple, and the rest of our internet titans must ask themselves why they aren't fighting for our interests the same way small businesses are. The defense they have offered to this point is that they were compelled by laws they do not agree with, but one day of downtime for the coalition of their services could achieve what a hundred Lavabits could not."
Snowden went on to say, quote, "When Congress returns to session in September, let us take note of whether the internet industry's statements and lobbyistswhich were invisible in the lead-up to the Conyers-Amash voteemerge on the side of the Free Internet or the NSA and its Intelligence Committees in Congress."
Ladar, you were the service provider for Edward Snowden?
LADAR LEVISON: I believe that's correct. Obviously, I didn't know him personally, but it's been widely reported, and there was an email account bearing his name on my system, as I've been made well aware of recently.
AMY GOODMAN: Glenn Greenwald also wrote, "What is particularly creepy about the Lavabit self-shutdown is that the company is gagged by law even from discussing the legal challenges it has mounted and the court proceeding it has engaged. In other words, the American owner of the company believes his Constitutional rights and those of his customers are being violated by the US Government, but he is not allowed to talk about it."
Greenwald goes on to write, quote, "Just as is true for people who receive National Security Letters under the Patriot Act, Lavabit has been told [that] they would face serious criminal sanctions if they publicly discuss what is being done to their company."
Ladar Levison, why did you start Lavabit?
LADAR LEVISON: Well, just to add one thing to Greenwald's comments, I mean, there's information that I can't even share with my lawyer, let alone with the American public. So if we're talking about secrecy, you know, it's really been taken to the extreme. And I think it's really being used by the current administration to cover up tactics that they may be ashamed of.
But just to answer your question, why did I start Lavabit? It was right out of college. I was sitting around with a group of my friends. I owned the domain name nerdshack.com, and we thought it would be cool to offer, you know, a free private email with a large quota, just like Gmail, and we sort of built the service along those lines. And as I was designing and developing the custom platform, it was right around when the PATRIOT Act came out. And that's really what colored my opinion and my philosophy, and why I chose to take the extra effort and build in the secure storage features and sort of focus on the privacy niche and the security focus niche. And it's really grown up from there. We've seen a lot of demand for, you know, people who want email but don't necessarily want it lumped in and profiled along with their searches or their browsing history or any of their other Internet activities. And that's really where we've focused and really how we've grown over the years, up to when I shut down 410,000 registered users.
AARON MATÉ: And, Ladar, during this time, you've complied with other government subpoenas. Is that correct?
LADAR LEVISON: Yeah, we've probably had at least two dozen subpoenas over the last 10 years, from local sheriffs' offices all the way up to federal courts. And obviously I can't speak to any particular one, but we've always complied with them. I think it's important to note that, you know, I've always complied with the law. It's just in this particular case I felt that complying with the law
JESSE BINNALL: And we do have to be careful at this point.
LADAR LEVISON: Yeah, I
JESSE BINNALL: But I think he can speak philosophically about thehis philosophy behind Lavabit and why it would lead to his decision to shut down.
LADAR LEVISON: Yeah, I have
AMY GOODMAN: That's Jesse Binnall, by the way. And, Jesse, how difficult is this for Ladar Levison, what he can say, what he can't say? How high are the stakes here?
JESSE BINNALL: The stakes are very high. It's a very unfortunate situation that, as Americans, we really are not supposed to have to worry about. But Ladar is in a situation where he has to watch every word he says when he's talking to the press, for fear of being imprisoned. And we can't even talk about what the legal requirements are that make it so he has to watch his words. But the simple fact is, I'm really here with him only because there are some very fine lines that he can't cross, for fear of being dragged away in handcuffs. And that's pretty much the exact fears that led the founders to give us the First Amendment in the first place. So it's high stakes.
LADAR LEVISON: Yeah.
AARON MATÉ: And, Ladar, in your letter, you write that "A favorable decision would allow me to resurrect Lavabit as an American company." So, are you suggesting perhaps that you would consider moving it abroad?
LADAR LEVISON: I don't think I can continue to run Lavabit abroad as an American citizen. I would have to move abroad, effectively, to administer the service. As an American citizen, I'm still subject to the laws and jurisdiction of the United States, particularly as long as I continue to live here. You know, that's why I have a lot of respect for Snowden, because he gave up his entire life, the life that he's known his entire life, so that he could speak out. I haven't gotten to that point. I still hope that it's possible to run a private service, private cloud data service, here in the United States without necessarily being forced to conduct surveillance on your users by the American government.
AMY GOODMAN: Can you say, Ladar, if you've received a national security letter?
LADAR LEVISON: No.
JESSE BINNALL: Unfortunately, he can't.
AMY GOODMAN: We're going to talk about that in a minute, the overall issue of what these are, for listeners and viewers who are not familiar with this. But, Ladar Levison, soon after you pulled the plug on Lavabit, another encrypted email provider called Silent Circle also shut down. Mike Janke, Silent Circle's CEO and co-founder, said, quote, "There was no 12-hour heads up. If we announced it, it would have given authorities time to file a national security letter. We decided to destroy it before we were asked to turn (information) over. We had to do scorched earth." Ladar, your response?
LADAR LEVISON: I can certainly understand his position. If the government had learned that I was shutting my service downcan I say that?
JESSE BINNALL: Well, I think it's best to kind of avoid that topic, unfortunately. But I think it is fair to say that Silent Circle was probably in a very different situation than Lavabit was, and which is probably why they took the steps that they did, which I think were admirable.
LADAR LEVISON: Yeah. But I will say that I don't think I had a choice but to shut it down without notice. I felt that was my only option. And I'll have to leave it to your listeners to understand why. But it's important to note that, you know, Lavabit wasn't the first service provider to receive a government request, and we're not the first service provider to fight it. We're just the first service provider to take a different approach. And it could very well be because of our size that we have that option. We're wholly focused on secure email. Wit hout it, we have no business. You take a much larger provider with a greater number of employees, and shutting down a major section of their company, when they have to answer to shareholders, may not be a viable option.
AMY GOODMAN: Why have you decided to speak out today, Ladar?
LADAR LEVISON: Because my biggest fear when I shut down the service was that no good would come of it. And I'm hoping that by speaking out, I can prompt, hopefully, Congress to act and change the laws that put me in this circumstance to begin with. I know that's a little ironic, considering I can't speak about the specific laws that put me in this position, but, you know, there's a real need in this country to establish what the rights are of our cloud providers. And unless we take actions to ensure that, you know, we can continue to operate secure, private services, I think we're going to lose a lot of business over the next few years. And I think all the major providers, not just Lavabit, have gone on record to say the same.
AMY GOODMAN: Do you think people should use email?
LADAR LEVISON: Yeah, I think it's a great way to communicate. I think we're entering a world where we have any number of ways of communicating, from postal mail to Twitter, to text messaging, to Facebook, to instant messenger, to email, to telephone, to video chat. They all kind of blend together. They all sort of fit their own niche, their own purpose. And I think email still has a very important role to play in communication between people.
AMY GOODMAN: Should we just assume it's all being read?
LADAR LEVISON: I think you should assume any communication that is electronic is being monitored.
We continue our discussion of government surveillance and Internet privacy with someone who was under an FBI gag order for six years. In early 2004, Nicholas Merrill, who was running an Internet service provider in New York called Calyx, was issued a national security letter that ordered him to hand over detailed private records about some of his customers. Under the law, recipients of the letters are barred from telling anyone about their encounter with the FBI. While Merrill was not the first American to be gagged after receiving a national security letter, he was the first to challenge the FBI's secret tactics. Merrill went to the American Civil Liberties Union, which then filed the first lawsuit challenging the national security letter statute. In the lawsuit, Merrill was simply identified as John Doe. It was only in August 2010, after reaching a settlement with the FBI, that Merrill was able to reveal his identity. "[The case] resulted in the national security letter provision of the PATRIOT Act being ruled unconstitutional twice," Merrill says. "The problem was, though, we were never able to get to the Supreme Court to get a final, binding ruling that would affect the whole country. ... The concern about cybersecurity and the concerns about privacy are really two sides of the same coin. There are a lot of really uncontroversial examples in which organizations and people need confidentiality: Medicine is one, journalism is another, human rights organizations is an obvious third. We're trying to make the case that if the right of Americans to encrypt their data and to have private information is taken away, that it's going to have grave, far-reaching effects on many kinds of industries, on our democracy as a whole, and our standing in the world."
Transcript
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: We continue our discussion of the shutdown of Lavabit, Edward Snowden's email provider. We're now joined by someone who was under an FBI gag order for six years after receiving a national security letter that ordered him to hand over detailed private records about some his customers. In early 2004, an FBI agent visited Nicholas Merrill, who was running an Internet service provider in New York called Calyx. Under the law, recipients of the letters are barred from telling anyone about their encounter with the FBI.
While Nicholas Merrill was not the first American to be gagged after receiving a national security letter, an NSL, he was the first to challenge the FBI's secret tactics. After receiving the national security letter, Merrill went to the American Civil Liberties Union, which then filed the first lawsuit challenging the national security letter statute. In the lawsuit, Nick Merrill was simply identified as "John Doe." It was only in August 2010, after reaching a settlement with the FBI, that Merrill was able to reveal his identity.
Nick Merrill, we welcome you back to Democracy Now! Still with us, Ladar Levison, founder, owner and operator of Lavabit, which he just shut down, and his lawyer, Jesse Binnall. They're both joining us from Washington.
Nick, as you listened to the story of our guest, of Ladar Levison, talk about what you received and what that caused you to do, this NSL.
NICHOLAS MERRILL: I got a visit, personally, from an FBI agent in my offices in 2004. The agent delivered to me a letter, and the letter demanded that I hand over a lot of information about one of the clients of the company. It caused me great concern, because the first thing that sort of really shocked me was that this was not a court order. This was a letter from the FBI signed by an attorney. And it seemed to me that it was not a legal order, and it seemed that it was pretty clearly not constitutional on its face. The FBI had not gone to court. It had not proven probable cause before a judge. And so, the other problem, though, with the letter was that it told me that I could never tell any person that I had received the letter, which pretty obviously precluded me from speaking to a lawyer or to anyone else in my company or to anyone about it. And I was quite afraid to disobey the letter. But after I took a bit of time and thought about it, I decided, you know, we always have the right to speak to an attorney, so I called my private attorney. We then went together to the ACLU, and then we ended up embroiled in this really long court saga which has lasted almost seven years.
AMY GOODMAN: Which also involved four librarians from Connecticutright?who were also given an NSL, national security letter, when they were asked for information about Internet users in the library systems of Connecticut.
NICHOLAS MERRILL: Yeah, somewhere about two years into the case, the librarians became co-plaintiffs along with me, although at that time they were just known as "Connecticut Doe," and I was "New York Doe," and we didn't know who each other were until many years later. But, yes, the librarians had also received a national security letter in Connecticut for library patron records, also a very upsetting issue.
The case, though, it was an interesting case because it resulted in the national security letter provision of the PATRIOT Act being ruled unconstitutional twice. And actually, recently, I think, in California in the Ninth Circuit, there was a similar ruling. The problem was, though, we were never able to get to the Supreme Court to get a final, binding ruling that would affect the whole country. And to be honest, it felt to me like the government wasn't really acting in good faith, that when it seemed like they were going to lose, they would back out of all these cases. It seemed to me that they were afraid to have the Supreme Court rule on the issue itself.
AMY GOODMAN: Why is this important?
NICHOLAS MERRILL: It's really important because what's at the heart of this matter here, the 800-pound gorilla in the room, is warrantless wiretapping and surveillance of Americans without any suspicion of wrongdoing. As we've heard with the revelations from Edward Snowden, this is a very widespread problem. And what I started to get a sense was happening back in 2004 was that essentially the rule of law was being eroded by a combination of the Department of Justice acting without proper checks and balances overseeing what they were doing. By evading the courts and by evading the court oversight and by issuing these national security letters themselves, they were able to gather huge amounts of information on Americans. And then, also by putting everyone under gag orders who received them, they were able to prevent anyone from talking about what was happening.
AMY GOODMAN: If you even talk about getting a national security letter, you face five years in prison.
NICHOLAS MERRILL: Right.
AMY GOODMAN: If you even mention it to a co-worker. Why don't we turn to President Obama speaking in 2005 about national security letters. At that time that he was speaking, he was still a U.S. senator.
SEN. BARACK OBAMA: This is legislation that puts our own Justice Department above the law. When national security letters are issued, they allow federal agents to conduct any search on any American, no matter how extensive, how wide-ranging, without ever going before a judge to prove that the search is necessary. All that is needed is a sign-off from a local FBI agent. That's it. Once a business or a person receives notification that they will be searched, they are prohibited from telling anyone about it, and they're even prohibited from challenging this automatic gag order in court. Even though judges have already found that similar restrictions violate the First Amendment, this conference report disregards the case law and the right to challenge the gag order. If you do decide to consult an attorney for legal advice, hold on. You will have to tell the FBI that you've done so. Think about that. You want to talk to a lawyer about whether or not your actions are going to be causing you to get into trouble. You've got to tell the FBI that you're consulting a lawyer. This is unheard of. There is no such requirement in any other area of the law. I see no reason why it's justified here. And if someone wants to know why their own government has decided to go on a fishing expedition through every personal record or private document, through the library books that you read, the phone calls that you've made, the emails that you've sent, this legislation gives people no rights to appeal the need for such a search in a court of law. No judge will hear your plea; no jury will hear your case. This is just plain wrong.
AMY GOODMAN: That was Barack Obama speaking in 2005 when he was a U.S. senator, speaking about national security letters. Ladar Levison, I know you can't say if you've received a national security letter, but what are your thoughts on hearing this?
LADAR LEVISON: I think it's important to note that, you know, it's possible to receive one of these orders and have it signed off on by a court. You know, we have the FISA court, which is effectively a secret court, sometimes called a kangaroo court because there's no opposition, and they can effectively issue what we used to consider to be an NSL. And it has the same restrictions that your last speaker, your last guest, just talked about.
AARON MATÉ: And, Nick, can you talk about the work around privacy that you're doing today?
NICHOLAS MERRILL: Sure.
AARON MATÉ: And if you were shaping policy on Internet privacy, what would it look like to you?
NICHOLAS MERRILL: One of the points that we're trying to make is that the concern about cybersecurity and the concerns about privacy are really two sides of the same coin, and that there are a lot of really uncontroversial examples in which organizations and people need confidentiality. Medicine is one. Journalism is another. Human rights organizations is an obvious third. We're trying to make the case that if the right of Americans to encrypt their data and to have private information is taken away, that it's going to have grave, far-reaching effects on many kinds of industries, on our democracy as a whole, and our standing in the world. There has also been a study recently saying that the government's policies weakening the right to privacy and the right to use encryption is going to cost American cloud service providers upwards of $35 billion over the next few years. So I think it's going to have really terrible economic effects. And these are some issues that we need to consider when we look at the policies that the government is taking.
AMY GOODMAN: Ladar Levison, you've shut down Lavabit. What would it mean if Google and Microsoft and Yahoo took a similar stand?
LADAR LEVISON: I think a major portion of the U.S. economy would shut down with it. Now, whether that would cause Barack Obama to reconsider his policies, I don't know.
AMY GOODMAN: You think of the web blackout protesting SOPA.
LADAR LEVISON: Yeah, yeah, but those didn't actually shut downwell, they did shut down services, some non-critical services, for a day. But that was more of a visual protest. Our economy depends upon email, and more now than ever before, it depends upon Gmail, because Gmail is used to host so many corporate email accounts, along with Outlook 365, which is the Microsoft service, Microsoft cloud service. And those shutting down would effectively force millions of Americans to find a new way to communicate.
AMY GOODMAN: Well, I wantwe have to leave it there, unfortunately. Ladar Levison, thank you very much for being with ushas just decided to shut down his service provider, his LavabitJesse Binnall, attorney, and Nick Merrill of the Calyx Institute.
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