Why shutting down Groklaw & Lavabit was a bad move

By Adam L. Penenberg , written on August 20, 2013

From The News Desk

It seems that 2013 may go down as the year of 1984.

I didn’t make that up. It’s a meme making the rounds online and on Twitter. It’s an obvious comparison, of course, since Edward Snowden-fueled revelations surfaced that our government may be eavesdropping on its own citizenry. No wonder sales of George Orwell’s classic tale of a government-run surveillance state have spiked, even though Orwell published "1984," which popularized the term “Big Brother,” three years before the NSA was formed.

As far as I can tell, the first 2013-1984 comparison, dated this past New Year’s Eve, appeared on a blog predicting economic collapse, “martial law declared across America,” “disagreement with the government characterized [as] a mental disorder,” President Obama deliberately destroying the economy, “riots in the street,” food shortages, and solar flares that threaten communication. We’re only approaching September, but I think it’s safe to say that, so far, none of this has occurred. Still, there are six more months before the New Year.

Actually, the blogger looked further ahead, mixing metaphors with his prediction that “2013 will be 1984 on steroids.” He says:

The ultimate plan, as you will see rolled out over the next few years, is installing Communism in America, which requires the complete government takeover of the economy, the total disarmament of the population so that people cannot fight back, the ‘elimination’ of all who believe in freedom and liberty, and the official destruction of the Constitution and the Bill of Rights.
It’s easy to dismiss this as typical radical right-wing claptrap, but unease over government snooping cuts across the political spectrum. Knowledge that the government may be surveilling email led the founder of Groklaw, an award-winning site that covers legal issues pertaining to the open source software community, to shut down. She followed in the footsteps of Lavabit – an email encryption service that counted Edward Snowden as a customer – which closed up shop earlier this month rather than, it appears, comply with a government investigation.

Ladar Levinson, Lavabit’s founder, told Kashmir Hill of Forbes:

This is about protecting all of our users, not just one in particular. It’s not my place to decide whether an investigation is just, but the government has the legal authority to force you to do things you’re uncomfortable with. The fact that I can’t talk about this is as big a problem as what they asked me to do.
Shortly after Lavabit made its announcement, Silent Circle preemptively pulled the plug on its Silent Mail encrypted email service, but not before destroying all customer email.

Both Lavabit and Silent Circle say their revenues increased in the wake of the NSA revelations, so it’s refreshing to see entrepreneurs put principles before profits. Still, I think they – and Groklaw – have made a mistake. Instead of rallying the public around the issue I’m afraid their actions – as laudable as they are – will end up forgotten in the avalanche of news.

Pamela Jones, Groklaw’s operator, wrote that she was aghast “knowing that persons I don't know can paw through all my thoughts and hopes and plans in my emails” with readers. She adds: “There is now no shield from forced exposure. . . You don't expect a stranger to read your private communications to a friend. And once you know they can, what is there to say?”

In reality, though, Groklaw has always been subject to the possibility of a government subpoena – one that it would have to comply with or face the possibility of jail time. It's been the case that you could only trust, say, Google, as much as you could trust the Bush Administration, and now the Obama administration. Email has never been a safe mode of contact for readers to provide input to any site. After all, the NSA has been operating for decades, and no one knows how long it has scooped up email messages from abroad.

Remember when the clarion call after 9/11 was, if you give in to paranoia, the terrorists win? Well, giving in to a nebulous threat that the NSA has the ability and wherewithal but probably not the desire or need to eavesdrop on your communication isn’t a good reason to quit. Because the NSA may have included you in an investigation, as the case appears to be with Lavabit, doesn’t mean you should shutter your doors. And while the government may hold on to encrypted communications for up to five years, hoping that its ability to decrypt them will improve, it shouldn’t lead you to a scorched earth policy of shuttering part of your business and destroying email – as with Silent Circle.

If you flip the analogy on its head, going out of business is like letting the terrorists win – by that, I mean giving in to fears. I’m not calling the US government terrorists, but closing down because of the faint possibility that it could monitor communications if it chose to doesn’t pressure it to change, if that is your goal.

You probably didn't stop flying because you have to go through airport screeners, take off your shoes, let your laptop be X-rayed and your luggage possibly rummaged through by security personnel. You shouldn't close your business either. Instead, level with your customers, tell them what the government is capable of doing, and allow them make up their own minds as to whether to do business with you or not.

Revelations aside, nothing has changed. The NSA monitored communications well before Edward Snowden leaked documents to Glenn Greenwald and Laura Poitras. It has long had the power of the subpoena to compel a business to hand over records and documents.

Shutting down won't accomplish much. Staying open just might.

Correction: An earlier version of this story erroneously reported that Silent Circle had gone out of business when the company had only shuttered its encrypted email business.

[Original image via Wikimedia]