In Re: UNDER SEAL
No. 13-4625
United States Court of Appeals, Fourth Circuit
April 16, 2014
PUBLISHED
AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA; EMPEOPLED, LLC.; ELECTRONIC FRONTIER FOUNDATION, Amici Supporting Appellants.
In Re: GRAND JURY PROCEEDINGS
No. 13-4626
United States Court of Appeals, Fourth Circuit
April 16, 2014
UNITED STATES OF AMERICA, Plaintiff – Appellee, v.
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
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 target2 in a criminal investigation. To further that goal, the Government obtained court orders under both the Pen/Trap Statute,
For the reasons below, we affirm the judgment of the district court.
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
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
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
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,
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
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.
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
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
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
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
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
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
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
II.
A.
As a party appealing from a civil contempt order, Lavabit12 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
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,
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
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).
Forfeiture and waiver principles apply with equal force to contempt proceedings. See, e.g., In re Gates, 600 F.3d 333, 337 (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
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.
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
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 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.“).
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
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
Nor does it matter that Lavabit and Levison were unrepresented by counsel during parts of the proceedings below.17
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
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
The Pen/Register Statute also includes provisions requiring third parties to provide technical assistance to the Government in connection with those devices. See
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.
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.
Thus,
Lavabit now argues that the third-party-assistance provisions found in
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
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.
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
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
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.