I know nothing of Lavabit, but let's say he did comply with the order and then months or years later the company simply isn't profitable and he needs to shut it down. Could he shut it down then? Or would he suddenly find himself hosting lots of paid government accounts - enough to make it financially viable? (But define viable... Does "I'm not pocketing $1m/year from this business, so I don't care any more. Turn it off!" count?)
Could he sell the business? If so, at what point does the new owner get to find out they have extra non-negotiable obligations to the government?
An NSL simply cannot be included in any due diligence.
That's absolutely brilliant and insightful - there are 192,499 (1) NSL's issued - which either will represent a huge and uncountable liability during due diligence or a massive impact on M&A work in the future.
I would think he could quit saying it was not profitable. The argument is that because he mentioned an order he violated the gag order.
It is stupid. It is blatantly Unconstitutional. I would hope he'd be suing for declaratory judgement that his conduct did not violate the law (now that he has been threatened with arrest he has standing to sue, I think).
That's why the government is paying the companies to access the data. So it's much easier for companies to just comply with the order. The carrot and the stick.
Well, the government is paying for some degree of predigestion of the data. The alternative for the company is having a government black box installed in their machine room doing who knows what....
Could he sell the business? If so, at what point does the new owner get to find out they have extra non-negotiable obligations to the government?