CNET's Declan McCullagh smartly speculates that Lavabit was served "with [a] federal court order to intercept users' (Snowden?) passwords" to allow ongoing monitoring of emails; specifically: "the order can also be to install FedGov-created malware." After challenging the order in district court and losing - all in a secret court proceeding, naturally - Lavabit shut itself down to avoid compliance while it appeals to the Fourth Circuit.
This morning, Silent Circle, a US-based secure online communication service, followed suit by shutting its own encrypted email service. Although it said it had not yet been served with any court order, the company, in a statement by its founder, internet security guru Phil Zimmerman, said: "We see the writing on the wall, and we have decided that it is best for us to shut down Silent Mail now."
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. 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. Thus we get hostage-message-sounding missives like this:
I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what's going on - the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests."
Does that sound like a message coming from a citizen of a healthy and free country? Secret courts issuing secret rulings invariably in favor of the US government that those most affected are barred by law from discussing? Is there anyone incapable at this point of seeing what the United States has become? Here's the very sound advice issued by Lavabit's founder:
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."
As security expert Bruce Schneier wrote in a great Bloomberg column last week, this is one of the key aspects of the NSA disclosures: the vast public-private surveillance partnership. That's what makes Lavabit's stance so heroic: as our reporting has demonstrated, most US-based tech and telecom companies (though not all) meekly submit to the US government's dictates and cooperative extensively and enthusiastically with the NSA to ensure access to your communications.
Snowden, who told me today that he found Lavabit's stand "inspiring", added:
"Ladar Levison and his team suspended the operations of their 10 year old business rather than violate the Constitutional rights of their roughly 400,000 users. The President, Congress, and the Courts have forgotten that the costs of bad policy are always borne by ordinary citizens, and it is our job to remind them that there are limits to what we will pay.
"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.
"When Congress returns to session in September, let us take note of whether the internet industry's statements and lobbyists - which were invisible in the lead-up to the Conyers-Amash vote - emerge on the side of the Free Internet or the NSA and its Intelligence Committees in Congress."
The growing (and accurate) perception that most US-based companies are not to be trusted with the privacy of electronic communications poses a real threat to those companies' financial interests. A report issued this week by the Technology and Innovation Foundation estimated that the US cloud computing industry, by itself, could lose between $21 billion to $35 billion due to reporting about the industry's ties to the NSA. It also notes that other nations' officials have been issuing the same kind of warnings to their citizens about US-based companies as the one issued by Lavabit yesterday:
And after the recent PRISM leaks, German Interior Minister Hans-Peter Friedrich declared publicly, 'whoever fears their communication is being intercepted in any way should use services that don't go through American servers.' Similarly, Jorg-Uwe Hahn, a German Justice Minister, called for a boycott of US companies."
The US-based internet industry knows that the recent transparency brought to the NSA is a threat to their business interests. This week, several leading Silicon Valley and telecom executives met with President Obama to discuss their "surveillance partnership". But the meeting was - naturally - held in total secrecy. Why shouldn't the agreements and collaborations between these companies and the NSA for access to customer communications not be open and public?
Obviously, the Obama administration, telecom giants, and the internet industry are not going to be moved by appeals to transparency, privacy and basic accountability. But perhaps they'll consider the damage being done to the industry's global reputation and business interests by constructing a ubiquitous spying system with the NSA and doing it all in secret.
It's well past time to think about what all this reflects about the US. As the New York Times Editorial Page put it today, referencing a front-page report from Charlie Savage enabled by NSA documents we published: "Apparently no espionage tool that Congress gives the National Security Agency is big enough or intrusive enough to satisfy the agency's inexhaustible appetite for delving into the communications of Americans." The NYT added:
Time and again, the NSA has pushed past the limits that lawmakers thought they had imposed to prevent it from invading basic privacy, as guaranteed by the Constitution."
I know it's much more fun and self-satisfying to talk about Vladimir Putin and depict him as this omnipotent cartoon villain. Talking about the flaws of others is always an effective tactic for avoiding our own, and as a bonus in this case, we get to and re-live Cold War glory by doing it. The best part of all is that we get to punish another country for the Supreme Sin: defying the dictates of the US leader.
[Note how a country's human rights problems becomes of interest to the US political and media class only when that country defies the US: hence, all the now-forgotten focus on Ecuador's press freedom record when it granted asylum to Julian Assange and considered doing so for Edward Snowden, while the truly repressive and deeply US-supported Saudi regime barely rates a mention. Americans love to feign sudden concern over a country's human rights abuses as a tool for punishing that country for disobedience to imperial dictates and for being distracted from their own government's abuses: Russia grants asylum to Snowden --> Russia is terrible to gays! But maybe it's more constructive for US media figures and Americans generally to think about what's happening to their own country and the abuses of the own government, the one for which they bear responsibility and over which they can exercise actual influence.]
Lavabit has taken an impressive and bold stand against the US government, sacrificing its self-interest for the privacy rights of its users. Those inclined to do so can return that support by helping it with lawyers' fees to fight the US government's orders, via this paypal link provided in the company's statement.
One of the most remarkable, and I think enduring, aspects of the NSA stories is how much open defiance there has been of the US government. Numerous countries around the world have waved away threats, from Hong Kong and Russia to multiple Latin American nations. Populations around the world are expressing serious indignation at the NSA and at their own government to the extent they have collaborated. And now Lavabit has shut itself down rather than participate in what it calls "crimes against the American people", and in doing so, has gone to the legal limits in order to tell us all what has happened. There will undoubtedly be more acts inspired by Snowden's initial choice to unravel his own life to make the world aware of what the US government has been doing in the dark.