“Feds Targeted Snowden’s Email Provider the Day After NSA Whistleblower Went Public”

October 3, 2013

Wired on September 27, 2013 released the following:

BY KEVIN POULSEN

“When on June 9 Edward Snowden stood up in Hong Kong and revealed himself to the world as an NSA whistleblower, the Justice Department wasted little time in targeting his email provider. A new appeals court filing today shows the government served a court order on Texas-based Lavabit the very next day, demanding metadata on an unnamed customer that the timing and circumstances suggest was Snowden.

The June 10 records demand was issued under 18 USC 2703(d), a 1994 amendment to the Stored Communications Act that allows law enforcement access to non-content internet records without demonstrating the “probable cause” needed for a search warrant. That would include email “To” and “From” lines, and the IP addresses used to access the account, but would not include the content of the email.

That order was followed on June 28 with a so-called “pen register order”, which provides the same information prospectively — recording the metadata for every new email sent or received.

It’s not clear what information, if any, Lavabit produced at that stage of the investigation. But on July 9 the court evidently issued an “Order to Show Cause,” which in a records case is usually the result of the government asking the court to enforce a demand that hasn’t been complied with to the government’s satisfaction.

The new information is revealed in a government filing in Lavabit’s appeal in the case. Lavabit attorney Jesse Binnall on Tuesday asked the 4th U.S. Circuit Court of Appeals to unseal some information in the case so that public interest groups could learn enough to potentially file amicus briefs on the core legal issues. The government today filed its opposition to the unsealing motion — under seal, naturally — along with a public timeline of previous orders keeping the case secret.

“The entire record in the district court, including all applications, subpoenas, motions, warrants, and orders, remains under seal,” prosecutors wrote in the public filing.

The timeline shows that the government’s records demands to Lavabit in the case began on June 10, almost two months before owner Ladar Levison shut down the service on August 8 with an oblique message saying he’d been left with little choice in the matter.

“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 wrote at the time. “After significant soul searching, I have decided to suspend operations.”

Levison and his lawyer are both bound by a gag order preventing them from discussing the details of the case, or identifying who the government’s target is.

The June 29 pen register order may well have been the issue. A standard email provider can easily funnel email headers to the government in response to such a request. But Lavabit offered paying customers a secure email service that stores incoming messages encrypted to a key known only to that user. Lavabit itself did not have access.

Levison could have complied with a prospective metadata demand in a number of ways: by providing the government with Lavabit’s private SSL certificate — allowing its users to be wiretapped; by modifying the software to store a user’s private encryption key at the next login; or by recording the email metadata before it’s encrypted. But Levison may have balked at actively circumventing the privacy system he built for users.

After shutting down the site, Levison appealed on August 29. His opening brief in his appeal is due October 3.

“He’s optimistic that we use this opportunity to possibly get some good law,” attorney Binnall told WIRED earlier this month. “My client is somebody’s who’s very concerned about privacy rights and protecting the United States Constitution from unlawful searches and seizures and protecting the First Amendment.””

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

Federal Mail Fraud Crimes

Federal Crimes – Appeal

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Federal appeals court hears murder-for-hire case

May 18, 2012

Richmond Times-Dispatch on May 18, 2012 released the following:

“By: REED WILLIAMS

RICHMOND, Va. —
Attorneys on Thursday argued before a federal appeals panel in Richmond the question of whether a death sentence should be reinstated against Justin Wolfe in a murder-for-hire in Northern Virginia.

Wolfe, 31, was convicted in 2002 of hiring Owen Barber IV to kill Daniel Petrole Jr., Wolfe’s marijuana supplier, in Prince William County. Wolfe was sentenced to death.

Barber, who pleaded guilty to first-degree murder and was sentenced to life in prison, testified as the star witness against Wolfe, but he later recanted that testimony in an affidavit stating that Wolfe did not hire him for the shooting.

Barber later recanted the affidavit. Wolfe has maintained his innocence.

Wolfe’s attorneys argue that no jury would have convicted Wolfe without Barber’s testimony against him, but the Virginia Attorney General’s Office contends that enough other evidence existed to convince a jury of Wolfe’s guilt.

In July, U.S. District Judge Raymond A. Jackson overturned Wolfe’s convictions and sentences, criticizing evidence in the case and finding prosecutorial misconduct. Jackson found that prosecutors failed to provide exculpatory information to Wolfe’s attorneys and allowed Barber to give false testimony.

The Virginia Attorney General’s Office appealed Jackson’s ruling to the 4th U.S. Circuit Court of Appeals.

Katherine Baldwin Burnett, a senior assistant attorney general, argued Thursday before a three-judge panel at the appeals court that the defense had been given full discovery and that the evidence of Wolfe’s guilt was overwhelming at his trial.

Burnett said Jackson was wrong in concluding that Barber’s testimony was the only direct evidence of Wolfe’s guilt. She said Wolfe’s own testimony corroborated the prosecution’s case against him.

Ashley C. Parrish, an attorney for Wolfe, said that Jackson observed Barber “eye to eye and face to face” at an evidentiary hearing before concluding that he found Barber’s recantation credible.

The defense has argued that the prosecution should have turned over to the defense a police report detailing a conversation between Barber and an investigator.

According to the report, the detective named Wolfe as a suspect and said Barber would not get the death penalty if he told the truth.

Burnett argued that prosecutors were not obligated to disclose the report to the defense. “This is not material,” Burnett said.

Parrish argued, however, that the report would have been important because it showed that Barber was told he should name Wolfe “or you’re going to get the chair.”

Parrish also said that Barber testified at the trial that he didn’t know Petrole and that police knew that wasn’t true. “This trial was so tainted,” he said.

Wolfe is still in prison. His mother, Terri Steinberg, attended Thursday’s arguments.

“Now that we’re a little closer to the door, it’s like the time clock moves a little slower,” Steinberg said. “Hopefully this nightmare can be over for our family and we can finally start to heal.”

She added that the proceedings also are hard on Petrole’s family.

The appeals court panel will rule on the case at a later date.

According to authorities, on March 5, 2001, Barber fatally shot Petrole after he pulled up to his town house in Bristow after returning from a meeting at which he had given Wolfe between 10 and 15 pounds of high-grade marijuana.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Appeal

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.