Will Conservative Dallas Rally Behind Privacy Defender Ladar Levison?

This is a conservative town, generally speaking, would you not agree? Dallas may even be a bastion of belief in the private sector and the rights of the individual, not to mention skepticism of government. So I wonder how Dallas will react to the story of its own citizen, Ladar Levison.

As Eric reported this morning, Levison has just emerged from a form of federal house arrest imposed after he shut down his Dallas-based email service. Last May, federal agents demanded Levison give them wholesale access to the secure emails of 400,000 customers, only one of whom was a federal target.

Levison based his 10-year-old business on a vow to provide an absolutely private and secure email service. In spite of that promise to his customers, Levison had complied on occasion in the past with previous "pen register" demands from law enforcement for email records of certain specific clients including one accused of child pornography.

But when he balked at what he thought was the overly broad nature of the May demand, the government just came back tougher, eventually ordering him to rip his privacy shield for all of his customers, most whom the government conceded in court were not suspected of anything at all.

No one, including Levison, has been allowed to say who the feds were looking for last May. It's clear from news reports and one mention in a court document, perhaps inadvertently omitted from redaction, that the target was NSA leaker Edward Snowden. Levison has admitted in an interview that Snowden was his client.

Had Levison turned over the keys to his whole operation while continuing to promise clients absolute privacy, he would have been engaging in at least a moral fraud, if not a legal one. Rather than do that, he shut his company down, posting a plaintive if elliptical cry for help on his web page.

His statement to customers ended on a haunting note: "This experience has taught me one very important lesson," Levison wrote. "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."

Full documents in the case have been posted by WIRED magazine.

Levison's dilemma turns on a little known legal device used by federal investigators originally called a "national security letter," now perhaps called something else because of recent revisions to the law. National security letters, previously issued by FBI agents without ever going to court to get a judge's order, require the recipient to do what the agent tells him to do, but they also forbid the person under threat of criminal penalties to tell anyone, even a lawyer, that he has received the letter.

If the recipient of a national security letter or equivalent document even mentions to a co-worker that he has received such a letter, he can be sent to federal prison for five years.

Levison says he consulted a lawyer anyway and eventually went to the American Civil Liberties Union because he just didn't believe such an order could be legal. The fact that documents in his case have now been unsealed and a court has removed his gag order must mean that a federal judge thinks at least some of his argument is worth hearing.

Even though he was not allowed to say much about the fine points of his legal predicament while he was still under a gag order, he did suggest broadly in a television interview on Democracy Now that the letter or order he received came not from an FBI agent alone but with the additional imprimatur of a Federal Intelligence Surveillance Court, or FISA court. But he suggested his order was, if anything, even more draconian and devastating to his rights and freedoms than the original national security letters were when they came straight from the FBI.

Maybe it's worth remembering what one United States senator had to say in 2005 about the legislation authorizing national security letters:

Once a business or a person receives notification that they will be searched, they are prohibited from telling anyone about it, and they are even prohibited from challenging this automatic gag order in court ...

If someone wants to know why their own government has decided to go on a fishing expedition through every personal record or a private document, through the library books that you read, the phone calls that you made, the emails that you sent, this legislation gives people no rights to appeal 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.

United States Senator Barack Obama, Democrat of Illinois

If you have time to read through the court docs in this case, the strongest theme to emerge will be the mounting fury of federal agents as Levison tries to find compromises, appeals and even some fairly stupid tricks to get them off his back and avoid having to deceive his own clients or kill his own company. Every time Levison ducks or dodges, the feds come back harder. Their reach becomes more ruthless.

It's almost like they're telling Levison, "If you think you don't like what we're going to do to your clients who are legitimate targets, watch what we do to the ones who aren't even suspected of anything. Oh, and remember not to tell anybody, or we'll put you in prison."

It reminds me of a bunch of research I did some years ago about how to encrypt my own stuff. I was more interested in bank account passwords than top-secret intelligence about curbs, gutters and drainage projects -- the stuff of my work for the most part. (There are some secrets in my area, but they're not what you would call top.)

Finally I came across a comment on a blog. Some guy pointed out there is no digital encryption you can achieve, no conceivable formula or algorithm you can employ capable of foiling the person who wants your data and happens to have a pipe-wrench upside your head when he asks for it.

Oh, yeah. Pipe wrenches.

So I guess that's what our government uses on us now, and I just wondered if anybody in Dallas gave a shit.

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Jim Schutze has been the city columnist for the Dallas Observer since 1998. He has been a recipient of the Association of Alternative Newsweeklies’ national award for best commentary and Lincoln University’s national Unity Award for writing on civil rights and racial issues. In 2011 he was admitted to the Texas Institute of Letters.
Contact: Jim Schutze