In Re: Under Seal

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4625
In Re: UNDER SEAL
------------------------------
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LAVABIT, LLC.; LADAR LEVISON,
Parties-in-Interest – Appellants.
-------------------------------
AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES
UNION OF VIRGINIA; EMPEOPLED, LLC.; ELECTRONIC FRONTIER
FOUNDATION,
Amici Supporting Appellants.
No. 13-4626
In Re: GRAND JURY PROCEEDINGS
------------------------------
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LAVABIT, LLC.; LADAR LEVISON,
Parties-in-Interest – Appellants.
------------------------------
AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES
UNION OF VIRGINIA; EMPEOPLED, LLC.; ELECTRONIC FRONTIER
FOUNDATION,
Amici Supporting Appellants.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:13−sw−00522−CMH−1; 1:13−dm−00022−CMH−1)
Argued: January 28, 2014 Decided: April 16, 2014
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Niemeyer and Judge Gregory joined.
ARGUED: Ian James Samuel, New York, New York, for Appellants.
Andrew Peterson, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Jesse R. Binnall,
BRONLEY & BINNALL, PLLC, Fairfax, Virginia; Marcia Hofmann, LAW
OFFICE OF MARCIA HOFMANN, San Francisco, California; David
Warrington, Laurin Mills, LECLAIRRYAN, Alexandria, Virginia, for
Appellants. Mythili Raman, Acting Assistant Attorney General,
Criminal Division, Nathan Judish, Josh Goldfoot, Benjamin
Fitzpatrick, Brandon Van Grack, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Dana J. Boente, Acting United States
Attorney, Michael Ben’Ary, James L. Trump, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. Alexander
A. Abdo, Brian M. Hauss, Catherine Crump, Nathan F. Wessler, Ben
Wizner, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New
York; Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION OF
VIRGINIA FOUNDATION, INC., Richmond, Virginia, for Amici
American Civil Liberties Union and ACLU of Virginia. Kurt
Opsahl, Jennifer Lynch, Hanni Fakhoury, ELECTRONIC FRONTIER
2
FOUNDATION, San Francisco, California, for Amicus Electronic
Frontier Foundation. Richard M. Martinez, Mahesha P.
Subbaraman, ROBINS, KAPLAN, MILLER & CIRESI, L.L.P.,
Minneapolis, Minnesota, for Amicus Empeopled, LLC.
3
AGEE, Circuit Judge:
Lavabit LLC is a limited liability company that provided
email service. Ladar Levison is the company’s sole and managing
member. 1
In 2013, the United States sought to obtain certain
information about a target 2 in a criminal investigation. To
further that goal, the Government obtained court orders under
both the Pen/Trap Statute, 18 U.S.C. §§ 3123-27, and the Stored
Communications Act, 18 U.S.C. §§ 2701-12, requiring Lavabit to
turn over particular information related to the target. When
Lavabit and Levison failed to comply with those orders, the
district court held them in contempt and imposed monetary
sanctions. Lavabit and Levison now appeal the sanctions.
For the reasons below, we affirm the judgment of the
district court.
1
The record does not reflect the state of Lavabit’s
organization or registration to do business. Neither does the
record contain documents that verify the ownership of Lavabit’s
membership interests or the identity of its managing member.
The parties and the district court assumed below that Lavabit
and Levison were “[o]ne and the same.” (J.A. 115.) As no party
has indicated otherwise, we will also assume that Levison owns
all interests in Lavabit and is fully authorized to act in all
matters on Lavabit’s behalf.
2
Because of the nature of the underlying criminal
investigation, portions of the record, including the target’s
identity, are sealed.
4
I.
A.
This case concerns the encryption processes that Lavabit
used while providing its email service. Encryption describes
the process through which readable data, often called
“plaintext,” is converted into “ciphertext,” an unreadable
jumble of letters and numbers. Decryption describes the reverse
process of changing ciphertext back into plaintext. Both
processes employ mathematical algorithms involving “keys,” which
facilitate the change of plaintext into ciphertext and back
again.
Lavabit employed two stages of encryption for its paid
subscribers: storage encryption and transport encryption.
Storage encryption protects emails and other data that rests on
Lavabit’s servers. Theoretically, no person other than the
email user could access the data once it was so encrypted. By
using storage encryption, Lavabit held a unique market position
in the email industry, as many providers do not encrypt stored
data.
Although Lavabit’s use of storage encryption was novel,
this case primarily concerns Lavabit’s second stage of
encryption, transport encryption. This more common form of
encryption protects data as it moves in transit between the
client and the server, creating a protected transmission channel
5
for internet communications. Transport encryption protects not
just email contents, but also usernames, passwords, and other
sensitive information as it moves. Without this type of
encryption, internet communications move exposed en route to
their destination, allowing outsiders to “listen in.” Transport
encryption also authenticates -- that is, it helps ensure that
email clients and servers are who they say they are, which in
turn prevents unauthorized parties from exploiting the data
channel.
Like many online companies, Lavabit used an industry-
standard protocol called SSL (short for “Secure Sockets Layer”)
to encrypt and decrypt its transmitted data. SSL relies on
public-key or asymmetric encryption, in which two separate but
related keys are used to encrypt and decrypt the protected data.
One key is made public, while the other remains private. In
Lavabit’s process, email users would have access to Lavabit’s
public keys, but Lavabit would retain its protected, private
keys. This technology relies on complex algorithms, but the
basic idea is akin to a self-locking padlock: if Alice wants to
send a secured box to Bob, she can lock the box with a padlock
(the public key) and Bob will open it with his own key (the
6
private key). Anyone can lock the padlock, but only the key-
holder can unlock it. 3
The security advantage that SSL offers disappears if a
third party comes to possess the private key. For example, a
third party holding a private key could read the encrypted
communications tied to that key as they were transmitted. In
some circumstances, a third party might also use the key to
decrypt past communications (although some available
technologies can thwart that ability). And, with the private
key in hand, the third party could impersonate the server and
launch a man-in-the-middle attack.
When a private key becomes anything less than private, more
than one user may be compromised. Like some other email
providers, Lavabit used a single set of SSL keys for all its
various subscribers for technological and financial reasons.
Lavabit in particular employed only five key-pairs, one for each
3
Our description oversimplifies a very complicated process
that can vary depending on what cipher suites and protocols are
used. In reality, a client and a server engage in an SSL
“handshake” involving several different communication steps
between the client and the server: initial “hellos,” server
authentication using an SSL certificate, potential client
authentication, sending (by the client) and decryption (by the
server) of a pre-master secret, generation of a master secret,
generation of session keys, and formal completion of the
handshake. Later communications within the same session then
use the generated session keys to both encrypt and decrypt all
the information transmitted during the session. It is also
possible to conduct an abbreviated handshake.
7
of the mail protocols that it supported. 4 As a result, exposing
one key-pair could affect all of Lavabit’s estimated 400,000-
plus email users.
B.
With this technical background in mind, we turn to the case
before us.
1.
On June 28, 2013, the Government sought and obtained an
order (“the Pen/Trap Order”) from a magistrate judge authorizing
the placement of a pen register and trace-and-trap device on
Lavabit’s system. This “pen/trap” device is intended to allow
the Government to collect certain information, on a real-time
basis, related to the specific investigatory target’s Lavabit
email account. 5 In accordance with the Pen/Trap Statute, 18
U.S.C. §§ 3121–27, the Pen/Trap Order permitted the Government
to “capture all non-content dialing, routing, addressing, and
4
Email protocols are the technical means by which users and
servers transmit messages over a network. A given user may
choose to use one of a variety of email protocols, so Lavabit
was equipped to handle that choice.
5
A pen register captures outgoing signaling and addressing
information, while a trap/trace device captures that information
for incoming messages. See 18 U.S.C. § 3127(3), (4). As to
email, the same device often performs both functions and is
frequently referred to as a pen/trap device.
8
signaling information . . . sent from or sent to” the target’s
account. (J.A. 10.) In other words, the Pen/Trap Order
authorized the Government to collect metadata 6 relating to the
target’s account, but did not allow the capture of the contents
of the target’s emails. The Pen/Trap Order further required
Lavabit to “furnish [to the Government] . . . all information,
facilities, and technical assistance necessary to accomplish the
installation and use of the pen/trap device unobtrusively and
with minimum interference.” (J.A. 11.)
On the same day that the Pen/Trap Order issued, FBI agents
met with Levison, who indicated that he did not intend to comply
with the order. Levison informed the agents that he could not
provide the requested information because the target-user “had
enabled Lavabit’s encryption services,” presumably referring to
Lavabit’s storage encryption. (J.A. 7.) But, at the same time,
Levison led the Government to believe that he “had the technical
capability to decrypt the [target’s] information.” (J.A. 6.)
Nevertheless, Levison insisted that he would not exercise that
6
Metadata, sometimes called envelope information, describes
“the how, when, and where of the message.” Orin S. Kerr, The
Next Generation Communications Privacy Act, 162 U. Pa. L. Rev.
373, 384 (2014). It includes “IP addresses, to-from information
on emails, login times, and locations.” Id. The Pen/Trap Order
described what specific metadata the Government was authorized
to collect.
9
ability because “Lavabit did not want to ‘defeat [its] own
system.’” (J.A. 6.)
In view of Levison’s response, the Government obtained an
additional order that day compelling Lavabit to comply with the
Pen/Trap Order. This “June 28 Order,” again issued by a
magistrate judge, instructed Lavabit to “provide the [FBI] with
unencrypted data pursuant to the [Pen/Trap] Order” and
reiterated that Lavabit was to provide “any information,
facilities, or technical assistance . . . under the control of
Lavabit . . . [that was] needed to provide the FBI with the
unencrypted data.” (J.A. 9.) Further, the June 28 Order put
Lavabit and Levison on notice that any “[f]ailure to comply”
could result in “any penalty within the power of the Court,
including the possibility of criminal contempt of Court.” (J.A.
9.)
2.
Over the next eleven days, the Government attempted to talk
with Levison about implementing the Pen/Trap Order. Levison,
however, ignored the FBI’s repeated requests to confer and did
not give the Government the unencrypted data that the June 28
Order required. As each day passed, the Government lost forever
the ability to collect the target-related data for that day.
10
Because Lavabit refused to comply with the prior orders,
the Government obtained an order to show cause from the district
court on July 9. The show cause order directed both Lavabit and
Levison, individually, to appear and “show cause why Lavabit LLC
ha[d] failed to comply with the orders entered June 28, 2013[]
in this matter and why [the] Court should not hold Mr. Levison
and Lavabit LLC in contempt for its disobedience and
resist[a]nce to these lawful orders.” (J.A. 21.) Entry of the
show cause order spurred a conference call between Levison, his
counsel, and representatives from the Government on July 10.
During that call, the parties discussed how the Government could
install the pen/trap device, what information the device could
capture, and how the Government could view and preserve that
information. In addition, the Government asked whether Levison
would provide the keys necessary to decrypt the target’s
encrypted information. Although the Government again stressed
that it was permitted to collect only non-content data, neither
Levison nor his counsel indicated whether Lavabit would allow
the Government to install and use the pen/trap device. 7
7
Levison contacted the Government the day after the July 10
call to say that he would not appear at the show cause hearing
unless the Government reimbursed his travel expenses. In
response, the Government issued a grand jury subpoena to
Levison, which permitted it to cover his expenses. That
subpoena, which was later withdrawn, also required Levison to
produce Lavabit’s encryption keys.
11
On July 13, 2013, four days after the show cause order
issued, Levison contacted the Government with his own proposal
as to how he would comply with the court’s orders. In
particular, Levison suggested that Lavabit would itself collect
the Government’s requested data:
I now believe it would be possible to capture the
required data ourselves and provide it to the FBI.
Specifically the information we’d collect is the login
and subsequent logout date and time, the IP address
used to connect to the subject email account and
[several] non-content headers . . . from any future
emails sent or received using the subject account. . .
. Note that additional header fields could be captured
if provided in advance of my implementation effort.
(J.A. 83.) Levison conditioned his proposal with a requirement
that the Government pay him $2,000 for his services. More
importantly, Levison also intended to provide the data only “at
the conclusion of the 60[-]day period required by the [Pen/Trap]
Order . . . [or] intermittently[,] . . . as [his] schedule
allow[ed].” (J.A. 83.) If the Government wanted daily updates,
Levison demanded an additional $1,500. 8
The Government rejected Levison’s proposal, explaining that
it needed “real-time transmission of results.” (J.A. 83.)
Moreover, the Government would have no means to verify the
8
Although the Pen/Trap Order authorized compensation for
“reasonable expenses” to Lavabit (J.A. 11), neither Lavabit nor
Levison ever requested compensation from the district court.
Levison also did not attempt to show the Government that his
proposed fees were requests for “reasonable expenses” that could
be reimbursed.
12
accuracy of the information that Lavabit proposed to provide --
a concerning limit given Lavabit’s apparent hostility toward the
Government. Levison responded by insisting that the Pen/Trap
Order did not require real-time access, but did not otherwise
attempt to comply with the Pen/Trap Order or the June 28 Order.
3.
On July 16, 2013, three days after the Government received
Levison’s proposal and the same day as the show cause hearing,
the Government obtained a seizure warrant from the district
court under the Stored Communications Act (“SCA”). See 18
U.S.C. §§ 2701-12. The seizure warrant provided that Lavabit
was to turn over “[a]ll information necessary to decrypt
communications sent to or from [the target’s] Lavabit email
account . . ., including encryption keys and SSL keys.” (J.A.
27.) In addition, the warrant covered “[a]ll information
necessary to decrypt data stored in or otherwise associated with
[the target’s] Lavabit account.” (J.A. 27.)
13
4.
On July 16, Levison appeared before the district court pro
se, 9 on behalf of himself and Lavabit, for the show cause
hearing. When asked whether he planned to comply with the
Pen/Trap Order, Levison responded that he had “always agreed to
the installation of the pen register device.” (J.A. 42.)
Nonetheless, Levison objected to turning over his private SSL
encryption keys “because that would compromise all of the secure
communications in and out of [his] network, including [his] own
administrative traffic.” (J.A. 42.) He also maintained that
“[t]here was never an explicit demand [from the Government] that
[he] turn over the keys.” (J.A. 45.)
The district court and the parties initially discussed
whether the Pen/Trap Order required Lavabit to produce its
encryption keys. The district court observed that the Pen/Trap
Order’s “technical assistance” provision may or may not
encompass the keys, but it declined to reach the issue during
the show cause hearing “because [he had] issued a search warrant
for that.” (J.A. 43.) The Government agreed that it had sought
the seizure warrant to “avoid litigating [the] issue” of whether
the Pen/Trap Order reached the encryption keys (J.A. 43), but
9
The record does not reflect why Lavabit and Levison’s
prior counsel was no longer representing them.
14
contended that the Pen/Trap Order and the June 28 Order
“required the encryption keys to be produced” (J.A. 45).
After Levison assured the district court that he would
permit the Government to install a pen/trap device on Lavabit’s
system, the district court did not inquire further into whether
Levison would turn over his encryption keys. The district court
concluded that it need not yet resolve the matter because
Levison had not been served with the seizure warrant and had not
been called before the grand jury (as was anticipated by the
then-outstanding grand jury subpoena). The district court then
scheduled another hearing for July 26 to confirm that Lavabit
had fully complied.
After the show cause hearing, Lavabit did permit the
Government to install a pen/trap device. But, without the
encryption keys, much of the information transmitted to and from
Lavabit’s servers remained encrypted, indecipherable, and
useless. The pen/trap device was therefore unable to identify
what data within the encrypted data stream was target-related
and properly collectable.
5.
Shortly before the scheduled hearing on compliance, Lavabit
and Levison, now again represented by counsel, moved to quash
the seizure warrant. In relevant part, their motion argued that
15
the warrant (1) amounted to an impermissible general warrant
barred by the Fourth Amendment; (2) sought immaterial
information; and (3) imposed an undue burden on Lavabit’s
business.
In response, the Government contended that the warrant
merely “re-state[d] and clarif[ied] Lavabit’s obligations under
the Pen-Trap Act to provide that same information.” (J.A. 86.)
The Government noted that four different legal obligations,
including the Pen/Trap Order and the June 28 Order, required
Lavabit to produce the encryption keys. Lavabit’s motion to
quash, however, did not mention either the Pen/Trap Order or the
June 28 Order.
6.
On August 1, over a month after the Pen/Trap Order first
issued, the district court held its second hearing. 10 The court
remarked that “[t]he difficulty or the ease in obtaining the
information [didn’t] have anything to do with whether or not the
government’s lawfully entitled to that information.” (J.A.
108.) For that reason, the district court denied the motion to
quash the Government’s “very narrow, specific” warrant. (J.A.
108.) The court also found it reasonable that the Government
10
Nothing in the record indicates why the hearing,
originally set for July 26, 2013, was delayed to August 1.
16
would not collect all users’ data, even if the encryption keys
would practically enable the Government to access all that data.
The district court then entered an order (the “August 1
Order”) directing Lavabit to turn over its encryption keys. The
order further instructed Lavabit to provide the Government “any
other ‘information, facilities, and technical assistance
necessary to accomplish the installation and use of the pen/trap
device’ as required by the July 16, 2013 seizure warrant and the
[Pen/Trap Order].” (J.A. 118–19.) The August 1 Order directed
Lavabit and Levison to turn over the encryption keys by 5:00 pm
on August 2, 2013.
7.
Despite the unequivocal language of the August 1 Order,
Lavabit dallied and did not comply. Just before the 5:00 pm
August 2 deadline, for instance, Levison provided the FBI with
an 11-page printout containing largely illegible characters in
4-point type, which he represented to be Lavabit’s encryption
keys. The Government instructed Lavabit to provide the keys in
an industry-standard electronic format by the morning of August
5. Lavabit did not respond.
On August 5, nearly six weeks after the Government first
obtained the Pen/Trap Order, the Government moved for sanctions
against Levison and Lavabit for their continuing “failure to
17
comply with [the] Court’s order entered August 1.” (J.A. 120.)
The Government sought penalties of $5,000 a day until Lavabit
provided the encryption keys to the Government. The district
court granted the motion for sanctions that day.
Two days later, Levison provided the keys to the
Government. By that time, six weeks of data regarding the
target had been lost. 11
8.
Lavabit and Levison timely appealed, and we have
jurisdiction under 28 U.S.C. § 1291. See United States v.
Myers, 593 F.3d 338, 344 n.9 (4th Cir. 2010) (“[A] civil-
contempt order may be immediately appealed by a non[-]party [to
the underlying action].”); see also Buffington v. Balt. Cnty.,
Md., 913 F.2d 113, 133 (4th Cir. 1990) (explaining that civil
contempt includes “a fine that would be payable to the court . .
. when the [contemnor] can avoid paying the fine simply by
performing the affirmative act required by the court’s order”).
We further note that the appeal presents a live controversy even
11
After Levison provided the keys to the Government, he
also shut Lavabit down entirely. In a public statement, Levison
did not reveal the specific reasons behind his decision to close
Lavabit. He did post, however, a statement on the Lavabit
website explaining that he would not “become complicit in crimes
against the American people.” Lavabit, http://www.lavabit.com
(last visited Mar 3, 2014).
18
though Lavabit has now complied with the underlying orders, as
Lavabit and Levison still face potential assessments based on
their conduct in refusing to comply with the district court’s
orders. See In re Grand Jury Subpoena (T-112), 597 F.3d 189,
195 (4th Cir. 2010).
II.
A.
As a party appealing from a civil contempt order, Lavabit 12
may ask us to consider “whether contempt was proper” and may
challenge “the order alleged to have been violated” unless
“earlier appellate review was available.” United States v.
Myers, 593 F.3d at 344. In the ordinary case, we review the
ultimate decision as to whether the contempt was proper for
abuse of discretion, the underlying legal questions de novo, In
re Grand Jury Subpoena, 597 F.3d at 195, and any factual
findings for clear error, Oaks of Mid City Resident Council v.
Sebelius, 723 F.3d 581, 584 (5th Cir. 2013); cf. United States
v. Peoples, 698 F.3d 185, 189 (4th Cir. 2012) (same as to
criminal contempt). Lavabit failed, however, to raise most of
12
For simplicity’s sake, we refer only to “Lavabit” for the
remainder of the opinion. That term, however, includes both
Lavabit and Levison unless the context reflects otherwise.
19
its present arguments before the district court; that failure
significantly alters the standard of review.
B.
In the district court, Lavabit failed to challenge the
statutory authority for the Pen/Trap Order, or the order itself,
in any way. Yet on appeal, Lavabit suggests that the district
court’s demand for the encryption keys required more assistance
from it than the Pen/Trap Statute requires. Lavabit never
mentioned or alluded to the Pen/Trap Statute below, much less
the district court’s authority to act under that statute. In
fact, with the possible exception of an undue burden argument
directed at the seizure warrant, Lavabit never challenged the
district court’s authority to act under either the Pen/Trap
Statute or the SCA.
“The matter of what questions may be taken up and resolved
for the first time on appeal is one left primarily to the
discretion of the courts of appeals, to be exercised on the
facts of individual cases.” Singleton v. Wulff, 428 U.S. 106,
121 (1976). In this circuit, we exercise that discretion
sparingly. Our settled rule is simple: “[a]bsent exceptional
circumstances, . . . we do not consider issues raised for the
first time on appeal.” Robinson v. Equifax Info. Servs., LLC,
560 F.3d 235, 242 (4th Cir. 2009); see also Agra, Gill & Duffus,
20
Inc. v. Benson, 920 F.2d 1173, 1176 (4th Cir. 1990) (“We will
not accept on appeal theories that were not raised in the
district court except under unusual circumstances.”).
When a party in a civil case fails to raise an argument in
the lower court and instead raises it for the first time before
us, we may reverse only if the newly raised argument establishes
“fundamental error” or a denial of fundamental justice. Stewart
v. Hall, 770 F.2d 1267, 1271 (4th Cir. 1985). “Fundamental
error” is “more limited” than the “plain error” standard that we
apply in criminal cases. Id.; accord Shcherbakovskiy v. Da Capo
Al Fine, Ltd., 490 F.3d 130, 142 (2d Cir. 2007) (“To meet this
[fundamental error] standard, a party must demonstrate even more
than is necessary to meet the plain error standard in a criminal
trial.”). So, when a party in a civil case fails to meet the
plain-error standard, we can say with confidence that he has not
established fundamental error. See, e.g., In re Celotex Corp.,
124 F.3d 619, 631 (4th Cir. 1997) (describing the criminal
plain-error standard as a “minimum” standard that must be met
before undertaking discretionary review of a waived argument in
a civil case). 13
13
Two things might explain the higher standard that applies
in civil cases. First, “Federal Rule of Criminal Procedure
52(b) affords federal appellate courts the discretion to correct
certain forfeited errors in the criminal context,” but in the
civil context (excepting jury instructions), “such discretion is
(Continued)
21
Thus, we may use the criminal, plain-error standard -–
articulated by United States v. Olano, 507 U.S. 705, 730 (1993)
–- as something of an intermediate step in a civil case. See,
e.g., Brickwood Contractors, Inc. v. Datanet Eng’g, Inc., 369
F.3d 385, 396 (4th Cir. 2004) (applying Olano standard in civil
case). Under that familiar standard, we cannot reverse if the
party fails to establish: “(1) there is an error; (2) the error
is plain; (3) the error affects substantial rights; and (4) the
court determines . . . that the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.” Celotex, 124 F.3d at 630-31. Even the lesser
showing needed for “[p]lain error review is strictly
circumscribed, and meeting all four prongs is difficult, as it
should be.” United States v. Byers, 649 F.3d 197, 213 (4th Cir.
2011) (quotation marks and alteration omitted).
We employ these rules not to trap unwary litigants, but to
advance several important and “obvious” purposes. Wheatley v.
Wicomico Cnty., Md., 390 F.3d 328, 335 (4th Cir. 2004). Among
judicially created.” Celotex, 124 F.3d 619, 630 n.6 (4th Cir.
1997). As a judicial construction, it should be narrowly
construed. Cf. In re ESA Envtl. Specialists, Inc., 70 F.3d 388,
394 n.5 (4th Cir. 2013) (stating that a “judicially created
exception” to a rule should be “narrowly construed”). Second,
plain-error review arose in the criminal context to protect the
defendant’s “substantial liberty interests,” but “[s]uch
interests normally are not at stake in civil litigation.” Deppe
v. Tripp, 863 F.2d 1356, 1364 (7th Cir. 1988).
22
other things, forfeiture and waiver rules offer “respect for the
[integrity of the] lower court, [avoid] unfair surprise to the
other party, and [acknowledge] the need for finality in
litigation and conservation of judicial resources.” Holly Hill
Farm, 447 F.3d at 267. Our sister circuits have suggested other
reasons beyond these: waiver rules ensure that the parties
develop the necessary evidence below, In re Diet Drugs Prod.
Liab. Litig., 706 F.3d 217, 226 (3d Cir. 2013), and “prevent
parties from getting two bites at the apple by raising two
distinct arguments,” Fleishman v. Cont’l Cas. Co., 698 F.3d 598,
608 (7th Cir. 2012); see also HTC Corp. v. IPCom GmbH & Co., KG,
667 F.3d 1270, 1282 (Fed. Cir. 2012) (collecting cases). The
Supreme Court has likewise warned us not to lightly dismiss the
many interests underlying preservation requirements. See, e.g.,
Wood v. Milyard, 132 S. Ct. 1826, 1834 (2012) (“Due regard for
the trial court’s processes and time investment is also a
consideration appellate courts should not overlook.”); Exxon
Shipping Co. v. Baker, 554 U.S. 471, 487 n.6 (2008) (“[T]he
complexity of a case does not eliminate the value of waiver and
forfeiture rules, which ensure that parties can determine when
an issue is out of the case, and that litigation remains, to the
extent possible, an orderly progression.”).
Forfeiture and waiver principles apply with equal force to
contempt proceedings. See, e.g., In re Gates, 600 F.3d 333, 337
23
(4th Cir. 2010) (applying plain-error standard to unpreserved
claim of error in criminal contempt proceedings); United States
v. Neal, 101 F.3d 993, 996 (4th Cir. 1996) (same). If anything,
“[t]he axiom that an appellate court will not ordinarily
consider issues raised for the first time on appeal takes on
added significance in the context of contempt.” In re Bianchi,
542 F.2d 98, 100 (1st Cir. 1976) (internal citation omitted).
After all, “[d]enying the court of which [a party] stands in
contempt the opportunity to consider the objection or remedy is
in itself a contempt of [that court’s] authority and an
obstruction of its processes.” Id. (quotation marks omitted).
C.
Lavabit argues that it preserved an appellate challenge to
the Pen/Trap Order when Levison objected to turning over the
encryption keys at the initial show cause hearing. We disagree.
In making his statement against turning over the encryption
keys to the Government, Levison offered only a one-sentence
remark: “I have only ever objected to turning over the SSL keys
because that would compromise all of the secure communications
in and out of my network, including my own administrative
traffic.” (J.A. 42.) This statement -- which we recite here
verbatim -- constituted the sum total of the only objection that
Lavabit ever raised to the turnover of the keys under the
24
Pen/Trap Order. We cannot refashion this vague statement of
personal preference into anything remotely close to the argument
that Lavabit now raises on appeal: a statutory-text-based
challenge to the district court’s fundamental authority under
the Pen/Trap Statute. Levison’s statement to the district court
simply reflected his personal angst over complying with the
Pen/Trap Order, not his present appellate argument that
questions whether the district court possessed the authority to
act at all.
Arguments raised in a trial court must be specific and in
line with those raised on appeal. “To preserve an issue for
appeal, an objection [or argument] must be timely and state the
grounds on which it is based.” Kollsman, a Div. of Sequa Corp.
v. Cohen, 996 F.2d 702, 707 (4th Cir. 1993). It follows then
that “an objection on one ground does not preserve objections
based on different grounds.” United States v. Massenburg, 564
F.3d 337, 342 n.2 (4th Cir. 2009). 14 Similarly, a party does not
go far enough by raising a non-specific objection or claim.
14
We have emphasized this point many times before. See,
e.g., United States v. Zayyad, 741 F.3d 452, 459 (4th Cir. 2014)
(“To preserve an argument on appeal, the [party] must object on
the same basis below as he contends is error on appeal.”); Laber
v. Harvey, 438 F.3d 404, 429 n.24 (4th Cir. 2006) (“These are
different arguments entirely, and making the one does not
preserve the other.”); United States v. Banisadr Bldg. Joint
Venture, 65 F.3d 374, 379 (4th Cir. 1995) (“[A] theory not
raised at trial cannot be raised on appeal.”).
25
“[I]f a party wishes to preserve an argument for appeal, the
party must press and not merely intimate the argument during the
proceedings before the district court.” Dallas Gas Partners,
L.P. v. Prospect Energy Corp., 733 F.3d 148, 157 (5th Cir.
2013); see also United States v. Bennett, 698 F.3d 194, 199 (4th
Cir. 2012) (finding defendant waived argument where his argument
below was “too general to alert the district court to the
specific [objection]”).
In arguing that it can still pursue the issue despite its
failure to raise any specific argument challenging the Pen/Trap
Order below, Lavabit gives far too broad a reading to Yee v.
City of Escondido, 503 U.S. 519, 534 (1992). Yee explained
that, “[o]nce a federal claim is properly presented, a party can
make any argument in support of that claim; parties are not
limited to the precise arguments they made below.” 503 U.S. at
534. We, too, have recognized our need to “consider any theory
plainly encompassed by the submissions in the underlying
litigation.” Volvo Constr. Equip. N. Am., Inc. v. CLM Equip.
Co., 386 F.3d 581, 604 (4th Cir. 2004).
Yet Lavabit neither “plainly” nor “properly” identified
these issues for the district court, and a comparison between
this case and Yee illustrates why. In Yee, the parties raised
before the district court a Fifth Amendment takings claim
premised on physical occupation. 503 U.S. at 534–35. Before
26
the Supreme Court, however, they argued that the taking occurred
by regulation. Id. The difference in form there was immaterial
because the appealing party asked both courts to evaluate the
same fundamental question: whether the challenged acts
constituted a taking. In other words, the appellant/petitioner
in Yee raised two variations of the same basic argument. In
contrast, the difference in the case at bar is marked and
material: Lavabit never challenged the statutory validity of the
Pen/Trap Order below or the court’s authority to act. To the
contrary, Lavabit’s only point below alluded to the potential
damage that compliance could cause to its chosen business
model. 15
Neither the district court nor the Government therefore had
any signal from Lavabit that it contested the district court’s
authority under the Pen/Trap Statute to enter the Pen/Trap Order
or the June 28th Order. In fact, by conceding at the August 1
hearing “that the [G]overnment [was] entitled to the [requested]
information,” it likely led the district court to believe
exactly the opposite. (J.A. 108.) Accordingly, Lavabit failed
to preserve any issue for appeal related to the Pen/Trap Statute
or the district court’s authority to act under it. See Nelson
15
We might characterize this argument as some type of undue
burden challenge. But, on appeal, Lavabit does not raise any
undue burden argument as to the Pen/Trap Order. Instead, it
limits its burden arguments to the seizure warrant.
27
v. Adams USA, Inc., 529 U.S. 460, 469 (2000) (“[T]he general
rule that issues must be raised in lower courts in order to be
preserved as potential grounds of decision in higher courts . .
. requires that the lower court be fairly put on notice as to
the substance of the issue.”).
D.
Lavabit contends that, even if it failed to raise a
cognizable objection to the Pen/Trap Order in the district
court, then the Government and the district court induced it to
forfeit its present challenges. We know of no case recognizing
an “invited” or “induced” waiver exception to the traditional
forfeiture and waiver principles. Lavabit has not identified
any basis for such an exception, other than its subjective
belief that it is now in an “unfair” position. But that is not
an argument that permits us to cast aside the well-understood
interests underlying our preservation requirements. Cf. Hawkins
v. United States, 724 F.3d 915, 918 (7th Cir. 2013) (“Finality
is an institutional value and it is tempting to subordinate such
a value to the equities of the individual case. But there are
dangers, especially if so vague a term as ‘fairness’ is to be
the touchstone.”).
28
In any event, we disagree with Lavabit’s factual premise,
as neither the Government nor the district court induced or
invited Lavabit to waive anything.
The Government did not lead Lavabit to believe that the
Pen/Trap Order was somehow irrelevant. To be sure, the
Government focused more on the seizure warrant than the Pen/Trap
Order at certain times in the proceedings. At the August 1
hearing, for example, the Government concentrated on the seizure
warrant and the later-withdrawn grand jury subpoena because the
motion under consideration –- Lavabit’s motion to quash -- only
addressed those two objects. The Government, however, never
stopped contending that the Pen/Trap Order, in and of itself,
also required Lavabit to turn over the encryption keys. For
example, the Government specifically invoked the Pen/Trap Order
in its written response to Lavabit’s motion to quash by noting
that “four separate legal obligations” required Lavabit to
provide its encryption keys, including the Pen/Trap Order and
the June 28 Order. (J.A. 86.) If Lavabit truly believed the
Pen/Trap Order to be an invalid request for the encryption keys,
then the Government’s continuing reliance on that order should
have spurred Lavabit to challenge it.
The district court’s actions also put Lavabit on notice
that the Pen/Trap Order implicated Lavabit’s encryption keys.
The June 28 Order referred to encryption, and the August 1 order
29
compelling Lavabit to turn over its keys relied upon two
independent sources of authority: “the July 16, 2013 seizure
warrant and the June 28, 2013 [Pen/Trap Order].” (J.A. 119
(emphasis added).) The August 1 Order, with its plain and
unequivocal citation to the Pen/Trap Order, informed Lavabit
that the Pen/Trap Order needed to be addressed because it was
the cited authority for the turnover of the encryption keys.
Even if the district court had earlier equivocated about whether
the Pen/Trap Order reached Lavabit’s encryption keys, those
doubts were dispelled once the August 1 Order issued. 16 “When
the terms of a judgment conflict with either a written or oral
opinion or observation, the judgment must govern.” Murdaugh
Volkswagen, Inc. v. First Nat’l Bank of S.C., 741 F.2d 41, 44
(4th Cir. 1984); see also id. (“Courts must speak by orders and
judgments, not by opinions, whether written or oral, or by
chance observations or expressed intentions made by courts
during, before or after trial, or during argument.”). At an
absolute minimum, if Lavabit believed that the turnover of the
keys was invalid under the Pen/Trap Order, then it should have
16
Similarly, if Lavabit believed that the district court
mistakenly relied upon the Pen/Trap Order in its August 1 Order,
then it should have moved the district court to revise its
order. See Segars. v. Atl. Coast Line R.R. Co., 286 F.2d 767,
770 (4th Cir. 1961) (finding that party waived argument that
written order did not conform with trial court’s actual
findings, where party did not move to revise order below).
30
acted once the district court’s August 1 order issued. It did
not.
E.
Lavabit tenders other reasons why we should exercise our
discretion to hear its Pen/Trap Statute argument, but we find no
merit in those arguments. We doubt that Lavabit’s listed
factors could ever justify de novo review of an argument raised
for the first time on appeal in a civil case in this circuit.
Many years ago, this circuit held that, “at a minimum, the
requirements of [the plain-error standard] must be satisfied
before we may exercise our discretion to correct an error not
raised below in a civil case.” In re Celotex, 124 F.3d at 631(emphasis added). It makes no difference then that Lavabit’s
Pen/Trap Statute argument presents a supposedly “pure question
of law” (Reply Br. 6), or that Lavabit was unrepresented during
some of the proceedings below, or that Lavabit believes this
case to be one of “public concern” (Reply Br. 6).
At the outset, we do not agree that the issue is a “purely
legal” one. At the very least, interpreting the Pen/Trap
Statute’s third-party-assistance provision would require us to
consider technological questions of fact that have little to do
with “pure law.” But even if the question were legal, that
would not alone justify our review. Though some circuits will
31
sometimes put aside the plain-error framework when a case
presents this sort of question, see, e.g., Villas at Parkside
Partners v. City of Farmers Branch, 726 F.3d 524, 582 n.26 (5th
Cir. 2013), our precedents do not embrace that approach. To the
contrary, we have taken a more structured view, recognizing that
the forfeiture rule “is a salutary rule even where the ground
urged for reversal is a pure question of law.” Legg’s Estate v.
Comm’r, 114 F.2d 760, 766 (4th Cir. 1940); accord Richison v.
Ernest Grp., Inc., 634 F.3d 1123, 1128–30 (10th Cir. 2011)
(rejecting a party’s contention that a forfeited but “purely
legal” issue could be considered outside the plain-error
framework).
Nor does it matter that Lavabit and Levison were
unrepresented by counsel during parts of the proceedings below. 17
17
As a limited liability company, Lavabit likely should not
have been permitted to proceed pro se at all. “It has been the
law for the better part of two centuries, for example, that a
corporation may appear in the federal courts only through
licensed counsel. As the courts have recognized, the rationale
for that rule applies equally to all artificial entities. Thus,
save in a few aberrant cases, the lower courts have uniformly
held that 28 U.S.C. § 1654, providing that ‘parties may plead
and conduct their own cases personally or by counsel,’ does not
allow corporations, partnerships, or associations to appear in
federal court otherwise than through a licensed attorney.”
Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council,
506 U.S. 194, 202 (1993) (footnote omitted); see also, e.g.,
United States v. Hagerman, 545 F.3d 579, 581–82 (7th Cir. 2008)
(holding that LLCs may not proceed pro se); United States ex
rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008)
(Continued)
32
“Although pro se complaints [and arguments] are to be liberally
construed, the failure to first present claims to the district
court generally forecloses our consideration of these matters on
appeal.” United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.
1990); cf. Williams v. Ozmint, 716 F.3d 801, 810–11 (4th Cir.
2013) (“We long have recognized that, despite our expansive
consideration of the pleadings of pro se litigants, . . .
appellate courts should not permit . . . fleeting references to
preserve questions on appeal.”). Neither this Court nor the
Supreme Court has ever “suggested that procedural rules in
ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.” McNeil v.
United States, 508 U.S. 106, 113 (1993). Especially given
Lavabit’s on-again-off-again relationship with various legal
counsel, no reason exists to do so here. 18
Finally, Lavabit proposes that we hear its challenge to the
Pen/Trap Order because Lavabit views the case as a matter of
“immense public concern.” (Reply Br. 6.) Yet there exists a
perhaps greater “public interest in bringing litigation to an
(explaining that lay persons cannot represent corporations,
partnerships, or limited liability companies).
18
Litigating this case did not evidently present any
particular financial hardship, as Lavabit and Levison have never
claimed a lack of funds as a reason for their sometimes-pro-se
status.
33
end after fair opportunity has been afforded to present all
issues of law and fact.” United States v. Atkinson, 297 U.S.
157, 159 (1936). And exhuming forfeited arguments when they
involve matters of “public concern” would present practical
difficulties. For one thing, identifying cases of a “public
concern” and “non-public concern” –- divorced from any other
consideration –- is a tricky task governed by no objective
standards. See, e.g., Tony A. Weigand, Raise or Lose: Appellate
Discretion and Principled Decision-Making, 17 Suffolk J. Trial &
App. Advoc. 179, 280–87 (2012) (describing vagueness and other
problems with a “public importance” approach); Barry A. Miller,
Sua Sponte Appellate Rulings: When Courts Deprive Litigants of
an Opportunity to Be Heard, 39 San Diego L. Rev. 1253, 1306–07
(2002) (“[W]hat is an important public interest to one court
will be unimportant to another. The line will be particularly
difficult to draw and will often appear nakedly political.”).
For another thing, if an issue is of public concern, that
concern is likely more reason to avoid deciding it from a less-
than-fully litigated record. See, e.g., Kingman Park Civic
Ass’n v. Williams, 348 F.3d 1033, 1039 (D.C. Cir. 2003) (“The
issue presented, however, is of sufficient public importance and
complexity to counsel strongly against deciding it in this
posture.”); Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.
1983) (refusing to excuse procedural waiver where case involved
34
“important questions of far-reaching significance”).
Accordingly, we decline to hear Lavabit’s new arguments merely
because Lavabit believes them to be important.
In sum, Lavabit’s assorted reasons to exercise any
discretionary review authority do not convince us to review its
Pen/Trap Statute arguments de novo. If Lavabit is to succeed on
its Pen/Trap Statute claim, it must at least show plain error.
III.
A.
The Pen/Trap Statute requires law enforcement authorities
to obtain court orders to install and use pen registers and
trap/trace devices. The requirements for these orders are less
onerous than the requirements that apply to Government requests
for the “content” of communications, as pen/trap devices do not
collect “content” but only information associated with the
transfer of that content. 19 As to internet communications,
pen/trap devices collect only metadata, such as an email’s “To:”
and “From:” fields, the date and time of transmissions, and user
login information. See 18 U.S.C. § 3127(3), (4) (forbidding pen
19
For example, in the more historically common use of a
pen/trap device on a landline telephone, the only information
collected would be information such as the telephone numbers of
incoming and outgoing calls.
35
registers and trap/trace devices from collecting “the contents
of any communication”).
The Pen/Register Statute also includes provisions requiring
third parties to provide technical assistance to the Government
in connection with those devices. See 18 U.S.C. §§ 3124(a),
(b). Under the pen-register provision, for instance, Lavabit
must provide:
all information, facilities, and technical assistance
necessary to accomplish the installation of the pen
register unobtrusively and with a minimum of
interference with the services that the person so
ordered by the court accords the party with respect to
whom the installation and use is to take place.
Id. § 3124(a). Similarly, under the trap/trace provision,
Lavabit must furnish:
all additional information, facilities and technical
assistance including installation and operation of the
device unobtrusively and with a minimum of
interference with the services that the person so
ordered by the court accords the party with respect to
whom the installation and use is to take place, if
such installation and assistance is directed by a
court order as provided in section 3123(b)(2) of this
title.
Id. § 3124(b) (emphasis added).
Thus, Sections 3124(a) and (b) are similar, but not
identical. The pen-register provision refers only to
information “necessary to accomplish the installation,” id.
§ 3124(a), while the trap/trace provision references information
“including installation and operation,” id. § 3124(b).
36
B.
Lavabit now argues that the third-party-assistance
provisions found in Sections 3124(a) and (b) do not reach the
SSL keys. It reads those provisions to require only enough
assistance to attach the pen/trap device to Lavabit’s system,
not any assistance necessary to make the device operationally
effective. Further, Lavabit contends that it needed to offer
only enough help to make the installation unobtrusive. And it
insists that Congress never could have intended to grant the
Government the broad power to ask for encryption keys through
the more general language found in the third-party-assistance
provisions.
All these new arguments notwithstanding, Lavabit failed to
make its most essential argument anywhere in its briefs or at
oral argument: it never contended that the district court
fundamentally or even plainly erred in relying on the Pen/Trap
Statute to compel Lavabit to produce its keys. Yet Lavabit
bears the burden of showing, “at a minimum,” plain error. Cf.
United States v. Carthorne, 726 F.3d 503, 510 (4th Cir. 2013)
(noting, in criminal context, that the appealing defendant bears
the burden of showing plain error); see also, e.g., Abernathy v.
Wandes, 713 F.3d 538, 553 n.12 (10th Cir. 2003) (noting in civil
context that the party that failed to preserve his argument
bears the burden of showing plain error). And “[a] party’s
37
failure to raise or discuss an issue in his brief is to be
deemed an abandonment of that issue.” Mayfield v. Nat’l Ass’n
for Stock Car Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir.
2012); see also IGEN Int’l, Inc. v. Roche Diagnostics GmbH, 335
F.3d 303, 308 (4th Cir. 2003) (“Failure to present or argue
assignments of error in opening appellate briefs constitutes a
waiver of those issues.”). Taken together, these two principles
carry us to one inevitable conclusion: Lavabit’s “failure to
argue for plain error and its application on appeal . . . surely
marks the end of the road for [its] argument for reversal not
first presented to the district court.” Richison, 634 F.3d at
1131; see also Jackson v. Parker, 627 F.3d 634, 640 (7th Cir.
2010) (rejecting party’s plain error argument where, among other
things, he “ha[d] not made an attempt –- either in his briefs or
at oral argument –- to show that the elements for plain error
review ha[d] been satisfied”).
Lavabit abandoned any argument that the district court
plainly erred, much less fundamentally erred, in relying upon
the Pen/Trap Order to find Lavabit in contempt. Moreover,
Lavabit fails to identify any potential “denial of fundamental
justice” that would justify further review. For the same
reason, then, Lavabit has abandoned that argument as well.
38
C.
We reiterate that our review is circumscribed by the
arguments that Lavabit raised below and in this Court. We take
this narrow course because an appellate court is not a
freestanding open forum for the discussion of esoteric
hypothetical questions. See Swann v. Charlotte-Mecklenburg Bd.
of Educ., 489 F.2d 966, 967 (4th Cir. 1974) (“[The] Court does
not sit to render decisions on abstract legal propositions or
advisory opinions.”). Rather, we adjudicate the legal arguments
actually raised. See Erilin Co. S.A. v. Johnson, 440 F.3d 648,
654 (4th Cir. 2006) (observing that our “system of justice” is
one “in which the parties are obliged to present facts and legal
arguments before a neutral and relatively passive decision-
maker”). Our conclusion, then, must tie back to the contempt,
as the actual order on appeal, and the proceedings below, as the
record that constrains us.
IV.
Lavabit also raises several challenges to the seizure
warrant, but we need not, should not, and do not reach those
arguments. The district court’s orders compelling Lavabit to
turn over its encryption keys relied on two, separate
independent grounds: the Pen/Trap Order and the seizure warrant.
Thus, the court’s later finding of contempt found that Lavabit
39
violated both the two prior orders. When two independent bases
support a district court’s contempt order, it is enough for us
to find that one of those bases was appropriate. See Consol.
Coal Co. v. Local 1702, United Mineworkers of Am., 683 F.2d 827,
831–32 (4th Cir. 1982) (declining to address second of two
independent bases for contempt order where first basis was
properly affirmed). This contempt-specific rule flows from the
more general maxim that, “[t]o obtain reversal of a district
court judgment based on multiple, independent grounds, an
appellant must convince us that every stated ground for the
judgment against him is incorrect.” Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
Furthermore, some of Lavabit’s additional arguments
implicate constitutional concerns. Those concerns provide even
more reason to avoid addressing Lavabit’s new arguments. “The
principle of constitutional avoidance . . . requires the federal
courts to avoid rendering constitutional rulings unless
absolutely necessary.” Norfolk S. Ry. Co. v. City of
Alexandria, 608 F.3d 150, 157 (4th Cir. 2010) (citing Ashwander
v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J.,
concurring)); see also Bell Atl. Md., Inc. v. Prince George’s
Cnty., Md., 212 F.3d 863, 865 (4th Cir. 2000) (“[C]ourts should
avoid deciding constitutional questions unless they are
essential to the disposition of a case.”). So, we “will not
40
decide a constitutional question, particularly a complicated
constitutional question, if another ground adequately disposes
of the controversy.” Strawser v. Atkins, 290 F.3d 720, 730 (4th
Cir. 2002). The long-established constitutional-avoidance rule
applies squarely to this case.
V.
In view of Lavabit’s waiver of its appellate arguments by
failing to raise them in the district court, and its failure to
raise the issue of fundamental or plain error review, there is
no cognizable basis upon which to challenge the Pen/Trap Order.
The district court did not err, then, in finding Lavabit and
Levison in contempt once they admittedly violated that order.
The judgment of the district court is therefore
AFFIRMED.
41