Nov 21, 2013 · 3 minutes

When it came time to mount a legal challenge to the government’s seizure of encryption keys from secure email provider Lavabit, three groups stepped forward. The Electronic Frontier Foundation and the American Civil Liberties Union both filed amicus briefs in support of Lavabit, which was perhaps to be expected. Both groups have a long track record of defending Internet freedom. But only one company took the same action: a Chicago-based startup called Empeopled.

Empeopled founder Aris Michalopoulos, who has been running his online conversations website since April last year, says it is important for startups and tech companies to speak out in support of Lavabit, because the government’s surveillance activities put democracy at risk.

Lavabit, which was likely targeted by the government, because one of its customers was Edward Snowden, has been out of business since August after its owner, Ladar Levison, decided to shut down the service rather than “become complicit in crimes against the American people.” Levison, who is facing contempt of court charges for his shut-down decision, has since filed an appeal against a court order that would force him to turn over the keys to Lavabit’s encryption.

In support of Levison’s appeal, the ACLU argued in its brief that the court order placed an unreasonable burden on Lavabit and that encryption services are a fundamental part of the Internet. The EFF, meanwhile, said in its brief that the government’s request to Lavabit disrupts the security model on which the Internet depends, and that it violates Constitutional protections against unreasonable search and seizure.

For Michalopoulos, however, the argument in support of Lavabit is even more ideological. “If they rule against Lavabit in this case, they risk sabatoging the roots of democracy on the Internet before they really had a chance to take hold,” Michalopoulos said.

For him, it’s not just a matter of one person, one company, and one case. The ruling on Lavabit’s appeal could have wide implications for privacy in general. “In addition to ruling on email, we’re ruling on technology that touches a lot of things in a lot of complex ways.” It’s not just business that is at risk, but also any productive technologies that depend on even a modicum of privacy for the frank exchange of ideas.

In Empeopled’s brief, the company said “that just as private membership lists and a secret ballot are vital to civic participation in a democratic society, so too are the privacy-protecting measures that are employed by online service providers worldwide in order to encourage free speech and association among their users on the Internet.”

A ruling against Lavabit would send a chilling message to online service provides about how much they should value the political privacy of their users, the brief argued.

Michalopoulos expressed disappointment that Empeopled was the only company that stepped forward to file an amicus brief in support of Lavabit. But he urged his peers to make their voices heard.

“It’s time to speak up and it’s time to not be fearful that you are crossing the government,” he said.

He argued that, in the spirit of an amicus brief, Empeopled is actually helping the government. “We are trying to help the United States make a decision about how it should be ruling.”

The government is not feeling the love. It has come out strongly against Lavabit’s appeal. In its reply brief to the filing (which comes via Lawfare), it said that the district court-ordered search warrant was “plainly lawful.”

The government also attacked Lavabit’s tactics.

Lavabit appeals a contempt order from the district court. But instead of attempting to justify Lavabit’s contemptuous conduct, Lavabit instead launches a host of new challenges to the underlying orders. Almost none of these challenges were presented to the district court.

In the meantime, Lavabit has six days remaining in a Kickstarter campaign to raise funds to release the source code for a “dark mail” initiative, which could be deployed to protect the privacy of email users. The campaign has so far raised just over $95,000 of a $196,608 goal.