                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4625


In Re:   UNDER SEAL

------------------------------

UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

LAVABIT, LLC.; LADAR LEVISON,

                Parties-in-Interest – Appellants.

-------------------------------

AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES
UNION OF VIRGINIA; EMPEOPLED, LLC.; ELECTRONIC FRONTIER
FOUNDATION,

                Amici Supporting Appellants.



                            No. 13-4626


In Re:   GRAND JURY PROCEEDINGS

------------------------------

UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.
LAVABIT, LLC.; LADAR LEVISON,

                Parties-in-Interest – Appellants.

------------------------------

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

                                 2
FOUNDATION, San Francisco, California, for Amicus Electronic
Frontier   Foundation.     Richard   M.   Martinez,  Mahesha   P.
Subbaraman,   ROBINS,   KAPLAN,    MILLER   &   CIRESI,   L.L.P.,
Minneapolis, Minnesota, for Amicus Empeopled, LLC.




                               3
AGEE, Circuit Judge:

     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 target 2 in a criminal investigation.                              To

further that goal, the Government obtained court orders under

both the Pen/Trap Statute, 18 U.S.C. §§ 3123-27, and the Stored

Communications Act, 18 U.S.C. §§ 2701-12, requiring Lavabit to

turn over particular information related to the target.                               When

Lavabit     and    Levison    failed   to       comply   with    those    orders,     the

district     court     held    them    in    contempt      and       imposed    monetary

sanctions.        Lavabit and Levison now appeal the sanctions.

     For     the    reasons     below,      we    affirm   the       judgment    of   the

district court.




     1
        The record does not reflect the state of Lavabit’s
organization or registration to do business.   Neither does the
record contain documents that verify the ownership of Lavabit’s
membership interests or the identity of its managing member.
The parties and the district court assumed below that Lavabit
and Levison were “[o]ne and the same.” (J.A. 115.) As no party
has indicated otherwise, we will also assume that Levison owns
all interests in Lavabit and is fully authorized to act in all
matters on Lavabit’s behalf.
     2
        Because of the nature of the underlying criminal
investigation, portions of the record, including the target’s
identity, are sealed.


                                            4
                                              I.

                                              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

                                              5
for internet communications.              Transport encryption protects not

just email contents, but also usernames, passwords, and other

sensitive      information      as   it   moves.      Without       this    type   of

encryption,     internet     communications        move   exposed    en    route   to

their destination, allowing outsiders to “listen in.”                      Transport

encryption also authenticates -- that is, it helps ensure that

email clients and servers are who they say they are, which in

turn    prevents      unauthorized    parties      from   exploiting       the   data

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




                                          6
private key).            Anyone can lock the padlock, but only the key-

holder can unlock it. 3

       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


       3
       Our description oversimplifies a very complicated process
that can vary depending on what cipher suites and protocols are
used.   In reality, a client and a server engage in an SSL
“handshake” involving several different communication steps
between the client and the server: initial “hellos,” server
authentication using an SSL certificate, potential client
authentication, sending (by the client) and decryption (by the
server) of a pre-master secret, generation of a master secret,
generation of session keys, and formal completion of the
handshake.   Later communications within the same session then
use the generated session keys to both encrypt and decrypt all
the information transmitted during the session.      It is also
possible to conduct an abbreviated handshake.


                                           7
of the mail protocols that it supported. 4   As a result, exposing

one key-pair could affect all of Lavabit’s estimated 400,000-

plus email users.



                                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, 18

U.S.C. §§ 3121–27, the Pen/Trap Order permitted the Government

to “capture all non-content dialing, routing, addressing, and

     4
       Email protocols are the technical means by which users and
servers transmit messages over a network.      A given user may
choose to use one of a variety of email protocols, so Lavabit
was equipped to handle that choice.
     5
       A pen register captures outgoing signaling and addressing
information, while a trap/trace device captures that information
for incoming messages.    See 18 U.S.C. § 3127(3), (4).    As to
email, the same device often performs both functions and is
frequently referred to as a pen/trap device.


                                8
signaling information . . . sent from or sent to” the target’s

account.   (J.A.   10.)    In    other   words,   the   Pen/Trap   Order

authorized the Government to collect metadata 6 relating to the

target’s account, but did not allow the capture of the contents

of the target’s emails.       The Pen/Trap Order further required

Lavabit to “furnish [to the Government] . . . all information,

facilities, and technical assistance necessary to accomplish the

installation and use of the pen/trap device unobtrusively and

with minimum interference.”     (J.A. 11.)

     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




     6
       Metadata, sometimes called envelope information, describes
“the how, when, and where of the message.”     Orin S. Kerr, The
Next Generation Communications Privacy Act, 162 U. Pa. L. Rev.
373, 384 (2014). It includes “IP addresses, to-from information
on emails, login times, and locations.” Id. The Pen/Trap Order
described what specific metadata the Government was authorized
to collect.


                                   9
ability    because    “Lavabit    did     not       want   to    ‘defeat   [its]    own

system.’”    (J.A. 6.)

      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.



                                         10
        Because Lavabit refused to comply with the prior orders,

the Government obtained an order to show cause from the district

court on July 9.          The show cause order directed both Lavabit and

Levison, individually, to appear and “show cause why Lavabit LLC

ha[d] failed to comply with the orders entered June 28, 2013[]

in this matter and why [the] Court should not hold Mr. Levison

and     Lavabit     LLC     in     contempt   for    its   disobedience     and

resist[a]nce to these lawful orders.”               (J.A. 21.)   Entry of the

show cause order spurred a conference call between Levison, his

counsel, and representatives from the Government on July 10.

During that call, the parties discussed how the Government could

install the pen/trap device, what information the device could

capture, and how the Government could view and preserve that

information.        In addition, the Government asked whether Levison

would     provide    the    keys    necessary   to    decrypt    the   target’s

encrypted information.           Although the Government again stressed

that it was permitted to collect only non-content data, neither

Levison nor his counsel indicated whether Lavabit would allow

the Government to install and use the pen/trap device. 7


      7
       Levison contacted the Government the day after the July 10
call to say that he would not appear at the show cause hearing
unless the Government reimbursed his travel expenses.          In
response, the Government issued a grand jury subpoena to
Levison, which permitted it to cover his expenses.           That
subpoena, which was later withdrawn, also required Levison to
produce Lavabit’s encryption keys.


                                         11
       On July 13, 2013, four days after the show cause order

issued, Levison contacted the Government with his own proposal

as     to    how    he   would    comply       with      the    court’s      orders.     In

particular, Levison suggested that Lavabit would itself collect

the Government’s requested data:

       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

       8
       Although the Pen/Trap Order authorized compensation for
“reasonable expenses” to Lavabit (J.A. 11), neither Lavabit nor
Levison ever requested compensation from the district court.
Levison also did not attempt to show the Government that his
proposed fees were requests for “reasonable expenses” that could
be reimbursed.


                                             12
accuracy of the information that Lavabit proposed to provide                         --

a concerning limit given Lavabit’s apparent hostility toward the

Government.          Levison responded by insisting that the Pen/Trap

Order did not require real-time access, but did not otherwise

attempt to comply with the Pen/Trap Order or the June 28 Order.



                                            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   18

U.S.C. §§ 2701-12.            The seizure warrant provided that Lavabit

was     to    turn    over    “[a]ll      information     necessary      to   decrypt

communications         sent   to    or    from   [the   target’s]     Lavabit   email

account . . ., including encryption keys and SSL keys.”                         (J.A.

27.)         In   addition,    the       warrant    covered    “[a]ll    information

necessary to decrypt data stored in or otherwise associated with

[the target’s] Lavabit account.”                 (J.A. 27.)




                                            13
                                              4.

        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



        9
       The record does not reflect why Lavabit and Levison’s
prior counsel was no longer representing them.


                                              14
contended    that    the     Pen/Trap        Order   and   the     June    28      Order

“required the encryption keys to be produced” (J.A. 45).

     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

                                          15
the warrant (1) amounted to an impermissible general warrant

barred      by   the     Fourth       Amendment;       (2)     sought       immaterial

information;     and     (3)   imposed     an      undue     burden    on    Lavabit’s

business.

      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

      10
         Nothing in the record indicates why the hearing,
originally set for July 26, 2013, was delayed to August 1.


                                         16
would not collect all users’ data, even if the encryption keys

would practically enable the Government to access all that data.

     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

                                  17
comply with [the] Court’s order entered August 1.”                            (J.A. 120.)

The Government sought penalties of $5,000 a day until Lavabit

provided the encryption keys to the Government.                          The district

court granted the motion for sanctions that day.

      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     28   U.S.C.    §    1291.      See   United       States    v.

Myers,     593    F.3d     338,   344     n.9    (4th    Cir.   2010)    (“[A]       civil-

contempt order may be immediately appealed by a non[-]party [to

the underlying action].”); see also Buffington v. Balt. Cnty.,

Md., 913 F.2d 113, 133 (4th Cir. 1990) (explaining that civil

contempt includes “a fine that would be payable to the court . .

.   when    the   [contemnor]      can     avoid    paying      the   fine     simply    by

performing the affirmative act required by the court’s order”).

We further note that the appeal presents a live controversy even


      11
        After Levison provided the keys to the Government, he
also shut Lavabit down entirely. In a public statement, Levison
did not reveal the specific reasons behind his decision to close
Lavabit.    He did post, however, a statement on the Lavabit
website explaining that he would not “become complicit in crimes
against the American people.”    Lavabit, http://www.lavabit.com
(last visited Mar 3, 2014).


                                            18
though Lavabit has now complied with the underlying orders, as

Lavabit and Levison still face potential assessments based on

their conduct in refusing to comply with the district court’s

orders.      See In re Grand Jury Subpoena (T-112), 597 F.3d 189,

195 (4th Cir. 2010).



                                          II.

                                            A.

      As a party appealing from a civil contempt order, Lavabit 12

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




      12
       For simplicity’s sake, we refer only to “Lavabit” for the
remainder of the opinion.     That term, however, includes both
Lavabit and Levison unless the context reflects otherwise.


                                            19
its present arguments before the district court; that failure

significantly alters the standard of review.



                                            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,

                                            20
Inc. v. Benson, 920 F.2d 1173, 1176 (4th Cir. 1990) (“We will

not   accept   on   appeal   theories        that   were   not   raised    in   the

district court except under unusual circumstances.”).

      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


      13
       Two things might explain the higher standard that applies
in civil cases.    First, “Federal Rule of Criminal Procedure
52(b) affords federal appellate courts the discretion to correct
certain forfeited errors in the criminal context,” but in the
civil context (excepting jury instructions), “such discretion is
(Continued)
                                        21
     Thus,    we   may    use   the   criminal,      plain-error    standard   -–

articulated by United States v. Olano, 507 U.S. 705, 730 (1993)

–- as something of an intermediate step in a civil case.                   See,

e.g., Brickwood Contractors, Inc. v. Datanet Eng’g, Inc., 369

F.3d 385, 396 (4th Cir. 2004) (applying Olano standard in civil

case).    Under that familiar standard, we cannot reverse if the

party fails to establish: “(1) there is an error; (2) the error

is plain; (3) the error affects substantial rights; and (4) the

court determines . . . that the error seriously affects the

fairness,     integrity         or    public    reputation         of   judicial

proceedings.”        Celotex, 124 F.3d at 630-31.            Even the lesser

showing     needed       for    “[p]lain     error     review      is   strictly

circumscribed, and meeting all four prongs is difficult, as it

should be.”     United States v. Byers, 649 F.3d 197, 213 (4th Cir.

2011) (quotation marks and alteration omitted).

     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).


                                        22
other things, forfeiture and waiver rules offer “respect for the

[integrity of the] lower court, [avoid] unfair surprise to the

other     party,    and   [acknowledge]       the       need    for    finality     in

litigation and conservation of judicial resources.”                     Holly Hill

Farm, 447 F.3d at 267.         Our sister circuits have suggested other

reasons    beyond    these:    waiver    rules      ensure      that   the   parties

develop the necessary evidence below, In re Diet Drugs Prod.

Liab. Litig., 706 F.3d 217, 226 (3d Cir. 2013), and “prevent

parties    from    getting    two   bites    at   the    apple    by   raising    two

distinct arguments,” Fleishman v. Cont’l Cas. Co., 698 F.3d 598,

608 (7th Cir. 2012); see also HTC Corp. v. IPCom GmbH & Co., KG,

667 F.3d 1270, 1282 (Fed. Cir. 2012) (collecting cases).                          The

Supreme Court has likewise warned us not to lightly dismiss the

many interests underlying preservation requirements.                     See, e.g.,

Wood v. Milyard, 132 S. Ct. 1826, 1834 (2012) (“Due regard for

the   trial   court’s     processes     and   time       investment     is   also   a

consideration      appellate    courts      should      not    overlook.”);    Exxon

Shipping Co. v. Baker, 554 U.S. 471, 487 n.6 (2008) (“[T]he

complexity of a case does not eliminate the value of waiver and

forfeiture rules, which ensure that parties can determine when

an issue is out of the case, and that litigation remains, to the

extent possible, an orderly progression.”).

      Forfeiture and waiver principles apply with equal force to

contempt proceedings.         See, e.g., In re Gates, 600 F.3d 333, 337

                                        23
(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

                                               24
Pen/Trap Order.            We cannot refashion this vague statement of

personal preference into anything remotely close to the argument

that     Lavabit     now    raises      on    appeal:     a    statutory-text-based

challenge to the district court’s fundamental authority under

the Pen/Trap Statute.            Levison’s statement to the district court

simply      reflected      his   personal      angst    over   complying   with   the

Pen/Trap      Order,       not    his       present    appellate    argument      that

questions whether the district court possessed the authority to

act at all.

       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.


       14
        We have emphasized this point many times before.    See,
e.g., United States v. Zayyad, 741 F.3d 452, 459 (4th Cir. 2014)
(“To preserve an argument on appeal, the [party] must object on
the same basis below as he contends is error on appeal.”); Laber
v. Harvey, 438 F.3d 404, 429 n.24 (4th Cir. 2006) (“These are
different arguments entirely, and making the one does not
preserve the other.”); United States v. Banisadr Bldg. Joint
Venture, 65 F.3d 374, 379 (4th Cir. 1995) (“[A] theory not
raised at trial cannot be raised on appeal.”).


                                             25
“[I]f a party wishes to preserve an argument for appeal, the

party must press and not merely intimate the argument during the

proceedings before the district court.”                            Dallas Gas Partners,

L.P.    v.     Prospect     Energy    Corp.,         733    F.3d    148,    157    (5th     Cir.

2013); see also United States v. Bennett, 698 F.3d 194, 199 (4th

Cir. 2012) (finding defendant waived argument where his argument

below    was        “too   general    to    alert      the       district    court     to    the

specific [objection]”).

         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

                                                26
the Supreme Court, however, they argued that the taking occurred

by regulation.         Id.   The difference in form there was immaterial

because the appealing party asked both courts to evaluate the

same        fundamental      question:       whether          the     challenged         acts

constituted a taking.             In other words, the appellant/petitioner

in Yee raised two variations of the same basic argument.                                   In

contrast,      the    difference     in     the   case    at        bar    is   marked    and

material: Lavabit never challenged the statutory validity of the

Pen/Trap Order below or the court’s authority to act.                                 To the

contrary, Lavabit’s only point below alluded to the potential

damage       that    compliance     could    cause       to    its        chosen     business

model. 15

       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

       15
       We might characterize this argument as some type of undue
burden challenge.   But, on appeal, Lavabit does not raise any
undue burden argument as to the Pen/Trap Order.      Instead, it
limits its burden arguments to the seizure warrant.


                                            27
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.”).




                                      28
       In any event, we disagree with Lavabit’s factual premise,

as   neither   the   Government     nor   the   district   court     induced   or

invited Lavabit to waive anything.

       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

                                      29
compelling     Lavabit    to     turn   over      its    keys    relied     upon       two

independent sources of authority: “the July 16, 2013 seizure

warrant and the June 28, 2013 [Pen/Trap Order].”                            (J.A. 119

(emphasis    added).)      The    August      1   Order,    with    its     plain      and

unequivocal    citation     to    the   Pen/Trap        Order,   informed       Lavabit

that the Pen/Trap Order needed to be addressed because it was

the cited authority for the turnover of the encryption keys.

Even if the district court had earlier equivocated about whether

the   Pen/Trap   Order     reached      Lavabit’s       encryption        keys,   those

doubts were dispelled once the August 1 Order issued. 16                           “When

the terms of a judgment conflict with either a written or oral

opinion or observation, the judgment must govern.”                           Murdaugh

Volkswagen, Inc. v. First Nat’l Bank of S.C., 741 F.2d 41, 44

(4th Cir. 1984); see also id. (“Courts must speak by orders and

judgments,    not   by    opinions,     whether     written      or   oral,       or   by

chance     observations    or    expressed        intentions       made    by     courts

during, before or after trial, or during argument.”).                             At an

absolute minimum, if Lavabit believed that the turnover of the

keys was invalid under the Pen/Trap Order, then it should have


      16
        Similarly, if Lavabit believed that the district court
mistakenly relied upon the Pen/Trap Order in its August 1 Order,
then it should have moved the district court to revise its
order.   See Segars. v. Atl. Coast Line R.R. Co., 286 F.2d 767,
770 (4th Cir. 1961) (finding that party waived argument that
written order did not conform with trial court’s actual
findings, where party did not move to revise order below).


                                         30
acted once the district court’s August 1 order issued.                     It did

not.



                                       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

                                       31
sometimes    put     aside    the     plain-error    framework       when   a    case

presents this sort of question, see, e.g., Villas at Parkside

Partners v. City of Farmers Branch, 726 F.3d 524, 582 n.26 (5th

Cir. 2013), our precedents do not embrace that approach.                      To the

contrary, we have taken a more structured view, recognizing that

the forfeiture rule “is a salutary rule even where the ground

urged for reversal is a pure question of law.”                 Legg’s Estate v.

Comm’r, 114 F.2d 760, 766 (4th Cir. 1940); accord Richison v.

Ernest    Grp.,     Inc.,    634    F.3d   1123,   1128–30    (10th    Cir.     2011)

(rejecting a party’s contention that a forfeited but “purely

legal”     issue     could    be     considered     outside    the    plain-error

framework).

     Nor     does     it     matter    that     Lavabit      and   Levison       were

unrepresented by counsel during parts of the proceedings below. 17



     17
       As a limited liability company, Lavabit likely should not
have been permitted to proceed pro se at all. “It has been the
law for the better part of two centuries, for example, that a
corporation may appear in the federal courts only through
licensed counsel. As the courts have recognized, the rationale
for that rule applies equally to all artificial entities. Thus,
save in a few aberrant cases, the lower courts have uniformly
held that 28 U.S.C. § 1654, providing that ‘parties may plead
and conduct their own cases personally or by counsel,’ does not
allow corporations, partnerships, or associations to appear in
federal court otherwise than through a licensed attorney.”
Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council,
506 U.S. 194, 202 (1993) (footnote omitted); see also, e.g.,
United States v. Hagerman, 545 F.3d 579, 581–82 (7th Cir. 2008)
(holding that LLCs may not proceed pro se); United States ex
rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008)
(Continued)
                                           32
“Although pro se complaints [and arguments] are to be liberally

construed, the failure to first present claims to the district

court generally forecloses our consideration of these matters on

appeal.”     United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.

1990); cf. Williams v. Ozmint, 716 F.3d 801, 810–11 (4th Cir.

2013)     (“We    long    have       recognized      that,       despite     our   expansive

consideration        of    the       pleadings      of    pro    se    litigants,      .    .    .

appellate courts should not permit . . . fleeting references to

preserve questions on appeal.”).                         Neither this Court nor the

Supreme     Court    has       ever     “suggested        that    procedural       rules        in

ordinary civil litigation should be interpreted so as to excuse

mistakes     by    those       who    proceed       without      counsel.”         McNeil       v.

United     States,       508   U.S.     106,     113     (1993).         Especially        given

Lavabit’s        on-again-off-again         relationship              with   various       legal

counsel, no reason exists to do so here. 18

     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



(explaining that lay persons cannot represent                                 corporations,
partnerships, or limited liability companies).
     18
        Litigating this case did not evidently present any
particular financial hardship, as Lavabit and Levison have never
claimed a lack of funds as a reason for their sometimes-pro-se
status.


                                               33
end   after   fair        opportunity      has     been    afforded       to    present      all

issues of law and fact.”                  United States v. Atkinson, 297 U.S.

157, 159 (1936).               And exhuming forfeited arguments when they

involve   matters         of    “public     concern”       would     present         practical

difficulties.         For one thing, identifying cases of a “public

concern” and “non-public concern” –- divorced from any other

consideration        –-    is    a   tricky      task     governed       by    no    objective

standards.      See, e.g., Tony A. Weigand, Raise or Lose: Appellate

Discretion and Principled Decision-Making, 17 Suffolk J. Trial &

App. Advoc. 179, 280–87 (2012) (describing vagueness and other

problems with a “public importance” approach); Barry A. Miller,

Sua Sponte Appellate Rulings: When Courts Deprive Litigants of

an Opportunity to Be Heard, 39 San Diego L. Rev. 1253, 1306–07

(2002) (“[W]hat is an important public interest to one court

will be unimportant to another.                     The line will be particularly

difficult to draw and will often appear nakedly political.”).

For   another    thing,         if   an   issue      is    of    public       concern,      that

concern is likely more reason to avoid deciding it from a less-

than-fully    litigated          record.         See,     e.g.,    Kingman          Park    Civic

Ass’n v. Williams, 348 F.3d 1033, 1039 (D.C. Cir. 2003) (“The

issue presented, however, is of sufficient public importance and

complexity      to   counsel         strongly      against       deciding       it    in    this

posture.”);     Carducci        v.    Regan,       714    F.2d    171,    177       (D.C.   Cir.

1983) (refusing to excuse procedural waiver where case involved

                                              34
“important        questions       of         far-reaching        significance”).

Accordingly, we decline to hear Lavabit’s new arguments merely

because Lavabit believes them to be important.

     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 18 U.S.C. § 3127(3), (4) (forbidding pen



     19
        For example, in the more historically common use of a
pen/trap device on a landline telephone, the only information
collected would be information such as the telephone numbers of
incoming and outgoing calls.


                                        35
registers and trap/trace devices from collecting “the contents

of any communication”).

       The Pen/Register Statute also includes provisions requiring

third parties to provide technical assistance to the Government

in connection with those devices.              See 18 U.S.C. §§ 3124(a),

(b).       Under the pen-register provision, for instance, Lavabit

must provide:

       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.

Id.    §    3124(a).   Similarly,    under    the    trap/trace      provision,

Lavabit must furnish:

       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.

Id. § 3124(b) (emphasis added).

       Thus,   Sections    3124(a)    and    (b)    are   similar,    but    not

identical.         The    pen-register       provision     refers     only    to

information     “necessary   to     accomplish      the   installation,”     id.

§ 3124(a), while the trap/trace provision references information

“including installation and operation,” id. § 3124(b).



                                      36
                                         B.

       Lavabit     now     argues       that    the      third-party-assistance

provisions found in Sections 3124(a) and (b) do not reach the

SSL keys.        It reads those provisions to require only enough

assistance to attach the pen/trap device to Lavabit’s system,

not any assistance necessary to make the device operationally

effective.       Further, Lavabit contends that it needed to offer

only enough help to make the installation unobtrusive.                     And it

insists that Congress never could have intended to grant the

Government the broad power to ask for encryption keys through

the more general language found in the third-party-assistance

provisions.

       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

                                         37
failure to raise or discuss an issue in his brief is to be

deemed an abandonment of that issue.”              Mayfield v. Nat’l Ass’n

for Stock Car Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir.

2012); see also IGEN Int’l, Inc. v. Roche Diagnostics GmbH, 335

F.3d 303, 308 (4th Cir. 2003) (“Failure to present or argue

assignments of error in opening appellate briefs constitutes a

waiver of those issues.”).            Taken together, these two principles

carry us to one inevitable conclusion: Lavabit’s “failure to

argue for plain error and its application on appeal . . . surely

marks the end of the road for [its] argument for reversal not

first presented to the district court.”                Richison, 634 F.3d at

1131; see also Jackson v. Parker, 627 F.3d 634, 640 (7th Cir.

2010) (rejecting party’s plain error argument where, among other

things, he “ha[d] not made an attempt –- either in his briefs or

at oral argument –- to show that the elements for plain error

review ha[d] been satisfied”).

      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.




                                        38
                                           C.

       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

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violated both the two prior orders.                    When two independent bases

support a district court’s contempt order, it is enough for us

to find that one of those bases was appropriate.                              See Consol.

Coal Co. v. Local 1702, United Mineworkers of Am., 683 F.2d 827,

831–32   (4th    Cir.    1982)    (declining           to   address       second     of   two

independent     bases    for     contempt          order    where     first       basis   was

properly affirmed).        This contempt-specific rule flows from the

more general maxim that, “[t]o obtain reversal of a district

court    judgment      based     on        multiple,       independent       grounds,       an

appellant    must   convince      us        that   every     stated    ground       for   the

judgment     against     him     is    incorrect.”            Sapuppo        v.    Allstate

Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).

     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

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decide   a   constitutional   question,   particularly   a   complicated

constitutional question, if another ground adequately disposes

of the controversy.”    Strawser v. Atkins, 290 F.3d 720, 730 (4th

Cir. 2002).     The long-established constitutional-avoidance rule

applies squarely to this case.



                                   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.




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