The Fourth Circuit holds oral argument in the Lavabit case

February 1, 2014

I’ve blogged a few times about Lavabit’s pending Fourth Circuit challenge to a civil contempt order for its refusal to turn over encryption keys that the government wanted to enable the government to conduct surveillance of Edward Snowden. (You can read my post on Lavabit’s opening brief here, and my post on the government’s brief here.) The Fourth Circuit held oral argument in the case earlier this week. The audio has been posted here, and I thought I would offer some comments on the argument.

My primary reaction is that the judges on the panel (Judges Niemeyer, Gregory, and Agee) didn’t see the case as raising the high-profile issues that have triggered so much press attention. Lavabit presented its appeal as a heroic challenge to overbearing government practices. To the judges, though, the case was much more mundane. The judges were mostly interested in the details of the trial record. They spent most of their time trying to figure out what the orders below required; what orders Lavabit had challenged below; and how clear was the evidence that Lavabit refused to comply with the orders.

Just based on the oral argument, I’m guessing that the panel will be divided. On one hand, Judge Niemeyer seemed clearly on the government’s side. He repeatedly and forcefully expressed the view that Lavabit founder Ladar Levison had clearly refused to comply with the order and had not challenged it below. In Judge Niemeyer’s view, it seems, the contempt finding was entirely proper. On the other hand, Judge Gregory appeared to think that the case should be remanded to the district court, apparently for more fact-finding to clarify the record. In Judge Gregory’s view, expressed around the 39-minute mark, it just wasn’t clear that Levison intended to violate the order (especially given that he was not represented by counsel at a critical stage).

That leaves Judge Agee, who was relatively quiet at oral argument. We don’t have much in the way of clues about Judge Agee’s views, given that he spoke only sparingly. At the same time, Judge Agee’s critical comment to Lavabit counsel’s at the 45:23 mark suggests that he is probably sympathetic to the government’s view. So if I had to guess, just based on the argument, I would guess that the panel will affirm. But that’s just a guess, and I expect the panel will be divided either way. And more importantly, I doubt the decision will reach the high-profile issues raised in Lavabit’s opening brief.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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