UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ApolloMedia Corporation (“ApolloMedia”) hereby moves the District Court for an order staying Paragraph 7 of Magistrate Judge Marcia A. Crone’s June 16, 1999 Order, pending appeal. ApolloMedia believes that it is likely to succeed on the merits of its appeal and irreparable harm to ApolloMedia’s First Amendment rights will occur if the Order is not stayed. ApolloMedia also requests that the Court unseal the record in this proceeding.

1. Factual And Procedural Background.

ApolloMedia has appealed from an order that was secretly obtained by the United States (on the basis of a secret application) that is an unconstitutional prior restraint that prohibits ApolloMedia from discussing the existence of the order with anyone.

ApolloMedia is an electronic communications services provider dedicated to providing a forum for free speech through its “annoy.com” web site. Declaration of Clinton Fein, filed herein (“Fein Decl.”), 2-4. In addition to enabling others to exercise their First Amendment rights, ApolloMedia and its President, Clinton Fein, regularly exercise their First Amendment rights to comment publicly on newsworthy events. See Motion to Quash 7.9; Fein Decl., 4, 6-8.

In June 1999, ApolloMedia received a telephone call and a fax dated June 16, 1999 from the University of Houston Police Department, regarding a criminal investigation at the University of Houston. Fein Decl., 9. The next day, ApolloMedia received Magistrate Judge Marcia A. Crone’s June 16, 1999 Order (“Magistrate’s Order”). Fein Decl., 10, Ex. A. The Magistrate’s Order required ApolloMedia to produce records pertaining to the sender of certain email messages within three days. ApolloMedia was never served with or allowed to see the Government’s application for this order. Fein Decl., 10. In addition to ordering ApolloMedia to produce information, Paragraph 7 of the Magistrate’s Order imposed a broad gag order, which prevents ApolloMedia from disclosing the application for the Order, the Order, or the investigation to anyone:

ApolloMedia its agents and affiliates, shall not disclose the existence of the United States’ application or this order, or the existence of any investigation, to the listed subscriber or lessee or to any other person (except as necessary to carry out this Order) until authorized to do so by this Court.

Magistrate’s Order 7; Fein Decl., Ex. A (emphasis added).

ApolloMedia challenged Paragraph 7 of the Magistrate’s Order as an unconstitutional prior restraint on its First Amendment rights. See ApolloMedia’s Response to and Motion to Quash Order Under 18 U.S.C. § 2703(d) (“Motion to Quash”), 7.2, 7.9. ApolloMedia also reported to the Magistrate that it did not have any information responsive to the Order. In response, Magistrate Judge Crone issued an order dismissing ApolloMedia’s motion as moot. Order, dated August 13, 1999. On September 1, 1999 Judge Lynn H. Hughes affirmed the Magistrate Judge Crone’s order dismissing ApolloMedia’s Motion to Quash as moot. Order, dated September 1, 1999. ApolloMedia has filed notices of appeal from the Magistrate’s Order as well as from the District Court’s order of September 1, 1999.

Despite the fact that the Magistrate Judge Crone and District Judge Hughes have dismissed ApolloMedia’s motion to quash as moot, Paragraph 7 of the Magistrate’s Order remains in effect and unconstitutionally prohibits ApolloMedia from discussing the order with anyone.

2. The Court Should Grant A Stay Of Paragraph 7 Of The Appealed Order.

1. Standard for Granting a Motion to Stay

The factors for evaluating whether a stay should be granted pending appeal are well established in the Fifth Circuit:

(1) Whether the movant has made a showing of likelihood of success on the merits;

(2) Whether the movant has made a showing of irreparable injury if the stay is not granted;

(3) Whether the granting of the stay would substantially harm the other parties; and

(4) Whether the granting of the stay would serve the public interest.

See In re First South Sav. Ass’n, 820 F.2d 700, 704 (5th Cir. 1987) (citing Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir. 1982)). Moreover, “the movant need not always show a ‘probability’ of success on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay.” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. Unit A Jun. 1981), quoted in First South Sav. Ass’n, 820 F.2d at 704.

2. ApolloMedia has a Substantial Likelihood of Success on the Merits.

1. The Magistrate’s Order Was Not Moot Because the Gag Order in Paragraph 7 Remains in Effect.

The unconstitutional prior restraint in Paragraph 7 of the Magistrate’s Order remains in effect. The plain language of Paragraph 7 prevents ApolloMedia, its agents, and affiliates from discussing the order with “any … person … until authorized to do so” by the Court. As of this date of filing this instant motion, the Court has not taken any action to lift the constraints contained in Paragraph 7. Neither Magistrate Judge Crone’s August 16, 1999 Order nor Judge Hughes’s September 1, 1999 Order addresses the restraints contained in Paragraph 7. Accordingly, this matter is not moot, even though ApolloMedia complied with the subpoena, because ApolloMedia’s acts are still restricted by the Magistrate’s Order. See Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 222 (6th Cir. 1996) (case is not moot because permanent injunction remains in effect).

2. Paragraph 7 of the Magistrate’s Order Constitutes an Unconstitutional Prior Restraint of ApolloMedia’s First Amendment Rights

Paragraph 7 of the June 16, 1999 Order constitutes an unconstitutional prior restraint of speech protected by the First Amendment. See New York Times v. United States, 403 U.S. 713, 714 (1971) (impermissible prior restraint against publication of Pentagon Papers even though majority of the justices believed that publication would probably be harmful to national security; any prior restraint bears “a heavy presumption against its constitutional validity”); Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (“prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights”); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 844-45 (1978) (“this Court has consistently rejected the argument that [out-of-court statements on pending cases or grand jury investigations] constituted a clear and present danger to the administration of justice”); Worrel Newspapers of Indiana v. Westhafer, 739 F.2d 1219, 1224-1225 (7th Cir. 1984), affirmed, 469 U.S. 1200 (1985) (holding unconstitutional a state statute subjecting to criminal punishment any person who published names of persons against whom a sealed indictment or information was filed); Procter & Gamble, 78 F.3d at 225 (“gagging of publication has been considered acceptable only in ‘exceptional cases'”).

3. ApolloMedia and Its President Clinton Fein Will Suffer Irreparable Harm To Its First Amendment Rights If A Stay Is Not Granted

Paragraph 7 of the Magistrate’s Order has prevented and will continue to prevent ApolloMedia, its agents, and affiliates – including ApolloMedia’s President Clinton Fein – from discussing the Order with anyone. The unconstitutional restraint of their First Amendment rights wrought by Paragraph 7 causes them continuing and irreparable harm. Fein Decl., 13, 17. See Elrod v. Burns, 427 U.S. 347, 373-74 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”).

The First Amendment injury is especially grave in this instance because both ApolloMedia and Mr. Fein are prominent proponents of issues related to freedom of speech and privacy on the Internet. The case of Nebraska Press Assn. v. Stuart, 427 U.S. 1327 (1976) is instructive. There, Justice Blackmun, in granting an emergency motion to stay an injunction that created a prior restraint of free speech, poignantly observed:

Where … a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment. The suppressed information grows older. Other events crowd upon it. To this extent, any First Amendment infringement that occurs with each passing day is irreparable.

Id. at 1329. See also CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1995)(opinion of Blackmun, J., in chambers, quoting Nebraska Press Assn. and granting emergency motion to stay).

ApolloMedia is a multimedia company which – in addition to its private Internet consulting work – operates the “annoy.com” web site as a forum for free speech and the free exchange of ideas over the Internet. Fein Decl., 3, 4. In 1997, ApolloMedia challenged the constitutionality of certain aspects of the Communications Decency Act which ApolloMedia believed placed unconstitutional limitations on freedom of speech. Fein Decl., 5. Besides serving as President of ApolloMedia, Mr. Fein is a prominent spokesperson on issues related to speech and privacy on the Internet and is frequently called upon to express his and policy views in the public media. Fein Decl., 6-8. The circumstances surrounding the issuance of the Magistrate’s Order, the procedural basis for the Order, and the restrictions of free speech contained in Paragraph 7 of the Order are newsworthy and directly relate to ApolloMedia’s and Mr. Fein’s work. Fein Decl., 4, 12-16.

4. The Granting Of A Stay Would Serve The Public Interest.

By the same token that Paragraph 7 of the Magistrate’s Order speech harms ApolloMedia, it harms the public interest. Visitors to the annoy.com web site and the general public have the right to be informed of the manner in which the United States and local law enforcement agencies are using the courts to attempt to secretly enlist web sites such as annoy.com to invade the privacy of users of the Internet.

3. This Court Should Unseal the Record.

The shroud of secrecy that has surrounded the Magistrate’s Order should be lifted. This Court should unseal the entire record, including the government’s application for the Magistrate’s Order. Both private and public interests favor unsealing the record. ApolloMedia’s lack of access to the entire record handicaps its ability to make a complete argument on the merits of its challenge to Paragraph 7. More fundamentally, the sealing order is inimical to the public’s (including ApolloMedia’s) interest in open court proceedings and the common-law right of access to judicial records. See Nixon v. Warner Communications, 435 U.S. 589, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978) (recognizing a “general right to inspect and copy public records and documents”); Leucadia, Inc. v. Applied Extrusion Tech., Inc., 998 F.2d 157, 161 (3d Cir. 1993)(stating that common law right of access, recognized in Nixon, applies to civil and criminal judicial proceedings and to pretrial proceedings); Smith v. United States District Court, 956 F.2d 647, 650 (7th Cir. 1992)(same).

Dated: August 31, 2000

SUSMAN GODFREY LLP

MARK L.D. WAWRO

1000 Louisiana Street
Suite 5100
Houston, TX 77002-5096
Telephone: (713) 651-9366
Facsimile: (713) 653-7897

 COOLEY GODWARD LLP

MICHAEL TRAYNOR

One Maritime Plaza, 20th Floor
San Francisco, CA 94111-3580
Telephone: (415) 693-2000
Facsimile: (415) 951-3699

 ROGERS JOSEPH O’DONNELL & QUINN

WILLIAM BENNETT TURNER

311 California Street, 10^th Floor
San Francisco, CA 94104-2602
Telephone: (415) 956-2828
Facsimile: (415) 956-6457

Attorneys for ApolloMedia Corporation

IN RE THE APPLICATION OF THE UNITED STATES
FOR AN ORDER UNDER 18 U.S.C. § 2703(D)

I, Clinton Fein, declare:

1. 1. I am the President of ApolloMedia Corporation (“ApolloMedia”), a Delaware corporation based in San Francisco, California.
   2. In 1994 I co-founded ApolloMedia. ApolloMedia is a multimedia technology company whose business is entirely devoted to computer-mediated communication. ApolloMedia provides consulting services, designs, develops, constructs and implements Internet and database technologies, including sites on the World Wide Web. ApolloMedia licenses customized network solutions for the management and delivery of information using telecommunications. ApolloMedia also writes, develops and produces multimedia content for corporate, educational and entertainment purposes.
   3. On January 30, 1997, ApolloMedia publicly launched the “annoy.com” web site.
   4. The annoy.com web site is devoted to free speech and the free exchange of ideas. The web site allows visitors to participate in online discussions on topics of current interest such as gun control, abortion, health care, the military, the environment, censorship, and privacy. Generally, ApolloMedia does not mediate, censor, or filter these discussions in any way. The web site also allows visitors to send anonymous or pseudonymous email postcards, related to the discussion topics, to public figures or to persons of the sender’s choice.
   5. At the same time that it launched the annoy.com web site, ApolloMedia brought an action in the United States District Court for the Northern District of California challenging the constitutionality of the provisions in 47 U.S.C. Sec. 223 making it a federal crime to communicate anything “indecent” on the Internet “with intent to annoy” another person. The Justice Department did not attempt to defend the provisions as written. Instead, Attorney General Reno argued that the statute did not criminalize “indecent” speech at all, only “obscene” material. She represented to the court numerous times that the Justice Department would not and could not prosecute ApolloMedia for communicating merely “indecent” material. She persuaded the three-judge court to adopt her statutory interpretation. ApolloMedia Corp. v. Reno, 19 F.Supp. 2d 1081 (N.D. Cal. 1998). When ApolloMedia appealed to the United States Supreme Court, the Attorney General represented to the Court that ApolloMedia had no “well-founded fear of prosecution.” The Supreme Court summarily affirmed on April 19, 1999. 119 S.Ct. 1450 (1999). The United States government sought the Order involved in the instant action a few weeks after the Supreme Court’s decision.
   6. During the course of the lawsuit and since, I have frequently commented on issues surrounding speech and privacy on the Internet. In December 1997, my opinions regarding the future of the Internet were published by The Wall Street Journal, who profiled me in their “Names on the Net” Special Feature. My work addressing policy and legal issues on the Internet is referenced by educational institutions, including Harvard Law School, and is frequently referred to by news organizations, including CNN and the New York Times.
   7. I am also co-chairman of Public Policy for the San Francisco Partnership’s Multimedia Task Force, a private not-for-profit organization set up to encourage investment in San Francisco’s Internet and multimedia industry, and serve as a conduit between the city and digital media industry to advise and comment on policy issues that impact consumers and Internet companies.
   8. As a result of ApolloMedia’s content and properties, the annoy.com website, and other activities such as the Service members Legal Defense Network (www.sldn.org), and yet-to-be-released ejournalism.com, ApolloMedia and I, as its President, find ourselves constantly having to engage in legal issues relating to privacy, First Amendment, trademark, libel, defamation and intellectual property law, especially as they pertain to journalism and the shaping of electronic content strategies. My career depends upon my ability to comment upon and shape these issues.
   9. In late April or early May 1999, I received a telephone call from a man who identified himself as Lieutenant Malcolm Davis of the University of Houston police department. Lieutenant Davis inquired about obtaining records from annoy.com in connection with a criminal investigation at the University of Houston. On June 16, 1999, I received a facsimile letter from Lieutenant Davis informing me that I would receive a federal court order in connection with this investigation.
   10. On June 17, 1999, I received by Federal Express overnight mail an order entered by the Honorable Marcia A. Crone in In Re The Application Of The United States For An Order Under 18 U.S.C. § 2703(D), Magistrate’s No. H-99-607-M. This order required ApolloMedia to produce records pertaining to the sender of certain email messages within three days. ApolloMedia responded and moved to quash the order. ApolloMedia was never served with or allowed to see the Government’s application for this order. Attached hereto as Exhibit B is a true and correct copy of the order.
   11. Paragraph 7 of the Magistrate’s June 16, 1999 Order ordered ApolloMedia, its agents, or affiliates not to “disclose the existence of the United States’ application or [the] order, or the existence of any investigation” to the sender of the email messages “or to any other person” until further order by the Court. I refer to this as the “gag order.”
   12. Upon receiving the order, I was troubled that the United States appeared to be secretly attempting to invade the privacy of innocent users of the Internet and the annoy.com web site. I was troubled that ApolloMedia had had no notice of the United States’ application for the order and no opportunity to be heard regarding the application or the order itself. I was troubled that ApolloMedia was ordered to comply with the order within three days, notwithstanding the importance of careful attention and scrutiny to such a demand. I was troubled that the only person who had personally contacted me about this extraordinary order was an officer in the University of Houston police department and I was further troubled that the United States appeared to be operating at the behest of this private entity.
   13. However, under the terms of the order I was unable to discuss any of my concerns with anyone because the gag order imposed by the Court directly prohibited me, as ApolloMedia’s president, from exercising my freedom of speech. Even now, more than three months after issuance of the order, I am unable to speak, comment, or even ask for information regarding the validity of the order. The gag order is damaging to my career, my company, and its and my freedom of expression.
   14. The United States government has refused to disclose the nature of the present “criminal investigation,” in particular whether any communication by or through ApolloMedia is being investigated as a violation of 47 U.S.C. section 223. I do not know what crimes are under investigation or whether the government now contends that ApolloMedia is somehow implicated in some crime. Although the government’s secrecy makes me suspicious that it is not honoring the representations it made in the prior litigation that it would not and could not prosecute “indecent” speech, ApolloMedia and I, as its President, am barred by the Magistrate’s Order from even revealing the existence of the investigation “to anyone.” I am thus prohibited from posting any information about the order on our web site to ask for information about the experiences of other online publishers and sources or to comment about the extraordinary aspects of this entire proceeding.
   15. As a privacy advocate, I understand the Government’s interest in protecting the identity of the alleged victim in this case. I would not have revealed such information because of my own ethical and journalistic standards. My present intention is to maintain such privacy on that voluntary basis. But, still, I am offended by the Government’s attempt to compel my silence by Court order.
   16. Privacy of Internet communications, and the ability of the Government to monitor or control such communications, are issues of substantial public interest. The Government’s application for an order in this case exemplifies one method that the Government is apparently using to monitor and control Internet communications. ApolloMedia and I would like to discuss this method publicly, and we would like to use our own experiences with this application and order to demonstrate the limitations of the Government’s approach, as well as the potential invasiveness of the approach. We would like to refer specifically to the orders in this proceeding as an example of the dangers from unconstitutional prior restraints and secret government invasions of privacy. Furthermore, the gag order provision itself is especially newsworthy, because it represents a departure from the typical notion that the business of the judiciary in the United States is open to public view and scrutiny. We intend to fully publicize, discuss, and criticize this aspect of the court’s order and to take all necessary measures to challenge the validity of the order, hence our filing objections with the magistrate, seeking this stay in the district court, noticing our appeal to the Fifth Circuit, and, if necessary, publishing without any leave of court on the ground that paragraph 7 of the order is transparently invalid. We wish, however, to afford the courts a timely opportunity to undo immediately the unconstitutional prior restraint that was issued in the name of this court.

1. ApolloMedia and I suffer continuous harm from the gag order insofar as it prevents us from discussing these issues that are matters of concern to us, visitors to the annoy.com web site, and many members of the general public.
2. Finally, on a personal note, it is important for me to state for the record that I was born and raised in South Africa during Apartheid. My desire to be a journalist was thwarted by the repressive censorship, as I lived in a country where one could be imprisoned for quoting Nelson Mandela (who at the time was in prison for revolutionary activities). I underwent the often difficult process of immigration, becoming an American citizen in 1994, partly because of the First Amendment’s promise of free speech. Upon being naturalized as an American, I took an oath to protect the principles of the Constitution from enemies foreign and domestic. I am deeply concerned that the Government is using secret invasions of privacy and gag orders that undermine the First Amendment and America’s promise of freedom.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Dated: _____________, 1999, San Francisco, California

__________________________________________
Clinton Fein

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

FILED UNDER SEAL

ORDER DENYING APOLLOMEDIA’S
MOTION TO STAY AND TO UNSEAL THE RECORD

ApolloMedia’s motion to stay and to unseal the record is denied.

On August 13, 1999, United States magistrate Judge Marcia A. Crone signed a written Order denying ApolloMedia’s motion to quash this Court’s original Order Under 18 U.S.C. § 2703(d), which had been signed on June 16, 1999.

On September 1, 1999, United States District Judge Lynn Hughes signed an Order and a written opinion affirming Magistrate Judge Crone’s dismissal of ApolloMedia’s motion to quash Magistrate Judge Crone’s Order dated June 16, 1999.

Judge Hughes’ Order and Opinion constitutes a "final decision" of the United States District Court for the Southern District of Texas. Judge Hughes’ Order and Opinion "ends the litigation on the merits and leaves nothing for the Court to do…" See In Re: Grand Jury Subpoena, Nos. 98-40870, 99-40262 and 99-40271, 1999 WL 734987, at *3 (5th Cir. Sept. 20, 1999), quoting, Cunningham v. Hamilton County. —U.S.—-, —–, 119 S. Ct. 1915, 1919-20, 144 L. Ed. 2d 184 (1999) (internal citations and quotes omitted). The only court having jurisdiction over ApolloMedia’s claim is the United States Court of Appelas for the Fifth Circuit. 28 U.S.C. § 1291.

Signed in Houston, Texas on October 28, 1999

______________________________

HONORABLE MARCIA A. CRONE
UNITED STATES MAGISTRATE JUDGE

No. 99-20849

IN THE UNITED STATES COURT OF
APPEALS
FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SEALED APPELLANT 1,

Defendant-Appellant.

Appeal from the United States
District Court

for the Southern District of
Texas, Houston Division

Magistrate’s No. H-99-607-M

FILED UNDER SEAL

MOTION OF SEALED APPELLANT 1
TO AUGMENT RECORD AND STRIKE MISSTATEMENTS IN APPELLEE’S RESPONSE
BRIEF

ApolloMedia Corporation files this Motion To
Augment Record And Strike Misstatements In Appellee’s Response
Brief.

ApolloMedia moves to augment the Record in this
matter by including therein the November 2, 1999 letter of
Assistant U.S. Attorney, J. Richard Berry, attached hereto as
Exhibit A.

Consideration of this letter will help to
clarify the record by correcting misstatements that the
Government has made in its Response. The Government erroneously
states that it made an offer to ApolloMedia’s attorneys to allow
ApolloMedia to publish a redacted version of the Magistrate’s
Order in the proceedings before the District Court. Assistant
U.S. Attorney Berry’s letter, written after the Government filed
its Opposition to ApolloMedia’s Motion To Stay And To Unseal The
Record before the District Court, contradicts these statements
and demonstrates that the Government made no such offer.

Accordingly, ApolloMedia moves that the Court
strike the first three full sentences on page 7 and footnote 3 of
the Government’s Response brief.

Dated: January 18, 2000
Respectfully submitted,

Mark L.D. Wawro
SUSMAN GODFREY LLP

William Bennett Turner
ROGERS, JOSEPH, O’DONNELL & QUINN

Michael Traynor
Lori R.E. Ploeger
J. Timothy Nardell
COOLEY GODWARD LLP

By:_________________________________
Michael Traynor

ATTORNEYS FOR
APOLLOMEDIA CORP.

REDACTED

NO. 99-20849

___________________

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V.

SEALED APPELLANT 1,

Defendant-Appellant.

___________________

On Appeal from the United States District Court

For the Southern District of Texas

Houston Division, Magistrate’s No. H-99-607-M

___________________

FILED UNDER SEAL

REDACTED BRIEF OF PLAINTIFF-APPELLEE

MERVYN M. MOSBACKER
United States Attorney

PAULA C. OFFENHAUSER
Assistant United States Attorney

KATHLYN G. SNYDER
Assistant United States Attorney

Attorneys for Appellee
910 Travis, Suite 1500
P.O. Box 61129
Houston, Texas 77208
(713) 567-9102

STATEMENT REGARDING ORAL ARGUMENT

Oral argument should be denied because (1) the facts and legal arguments are adequately presented in the briefs and record and (2) the decisional process would not be significantly aided by oral argument. Fed. R. App. P. 34(a)(3).

REDACTED

NO. 99-20849

___________________

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SEALED APPELLANT 1,

Defendant-Appellant.

___________________

On Appeal from the United States District Court

For the Southern District of Texas

Houston Division, Magistrate’s No. H-99-607-M

___________________

FILED UNDER SEAL

REDACTED BRIEF OF PLAINTIFF-APPELLEE

The United States of America, Plaintiff-Appellant, through the United States Attorney for the Southern District Of Texas, files this brief in response to that of Defendant-Appellant ("Sealed Appellant 1").

STATEMENT OF JURISDICTION

This appeal is from the order entered by the district court on September 1, 1999, denying Sealed Appellant 1’s motion to quash as moot (Record Excerpts ("RE") of Sealed Appellant 1 at tabs 6 and 7. Notice of appeal was filed timely on September 10, 1999 (RE of Sealed Appellant 1 at tab 3), thereby vesting this court with jurisdiction pursuant to 28 U.S.C. § 1291.

STATEMENT OF THE ISSUE

Whether Sealed Appellant 1 has failed to demonstrate any First Amendment violation due to the district court’s entry of a protective order pursuant to 18 U.S.C. §2705(b).

STATEMENT OF THE CASE

On June 16, 1999, the United States filed ex parte and under seal an application for disclosure order under 18 U.S.C. § 2703(c) and (d). This statute sets forth the requirements under which the United States may require the disclosure of records concerning electronic communication service or subscriber information that is in the possession of an Internet Service Provider (IPS). In particular, it requested that Sealed Appellant 1 supply certain information. It also requested, pursuant to 18 U.S.C. §2705(b), that the application and order of the court be sealed, and that Sealed Appellant 1 be ordered not to disclose the existence or content of the order, except to the extent necessary to carry it out.

United States Magistrate Judge Marcia A. Crone granted the United States’ application and its request to seal on June 16, 1999, the date it was filed. In particular, the court found (1) reasonable grounds to believe that the information sought is relevant and material to an ongoing criminal investigation, and that (2) disclosure of this investigation or the United States’ application would seriously jeopardize the investigation (RE of Sealed Appellant at tab 4,p. 1). It ordered Sealed Appellant 1 to provide the above listed information within three (3) days of the order. Paragraph seven of the order directed Sealed Appellant not to disclose its existence or the existence of the investigation, except as necessary to carry out the order, until authorized to do so by the court (RE of Sealed Appellant 1 at tab 4, p.3).

Sealed Appellant 1 filed its response under seal on June 23, 1999, and moved to quash the order (RE of Sealed Appellant 1 at tab 8). In particular, Sealed Appellant 1 responded that there were three electronic postcards from its service to the identified address, but disclaimed any knowledge as to the sender.

¶ 3. Respondent does not have in its possession or control any records known to it that meet the description set forth in the Order. . . . . Except as so stated [identifying the three electronic postcards],

Respondent does not have in its possession or control any records known to it and is not aware of any e-mail traffic from John Doe to [WITHHELD BY APOLLOMEDIA: GOVERNMENT RELEASES NAME OF ALLEGED VICTIM IN REDACTED BRIEF] at e-mail accountI [WITHHELD BY APOLLOMEDIA:GOVERNMENT RELEASES NAME OF ALLEGED VICTIM IN REDACTED BRIEF] or at any other e-mail address, from April 20, 1999, united the date the Order was signed, June 16, 1999. . . .

¶ 4. Respondent does not have subscribers. Anyone who can access the annoy.com web site can send a message and can do so anonymously or pseudonymously. John Doe does not have an e-mail account with Respondent or annoy.com. Respondent’s log records do not identify John Doe. They show e-mail traffic to [identified address], which Respondent has reviewed and produced . . . .

(RE of Sealed Appellant 1 at tab 8).

Sealed Appellant 1 alternatively argued that compliance with the court’s order would be unduly burdensome, that it would invade the privacy of persons other than John Doe who used Sealed Appellant 1’s Internet service. Id. at ¶ 5. It claimed that the order is unconstitutional in that it failed to provide adequate notice and violated the First Amendment right to free speech. Id. at ¶ 7.1-7.3. Sealed Appellant 1 claimed that the fact of an ongoing investigation is a newsworthy event:

Respondent regularly exercises its First Amendment rights to comment publicly on various issues. It is newsworthy, for example, that there is an investigation concerning the e-mail messages . . .; that some government entity is enlisting the aid of a federal court to issue secret orders and prior restraints and that the court is cooperating; that the United States is investigating e-mail messages allegedly communicated via annoy.com, notwithstanding its representations in ApolloMedia Corporation v. Reno; that the United States and the court are trying via the application for the order and the Order to silence Respondent; . . . that the government with the collaboration of the court is secretly attempting to invade the privacy of innocent users of the Internet and Respondent’s web site. . . . The Order and it attendant prior restraint continually violate Respondent’s First Amendment rights an the public’s right to know about unconstitutional action, every minute that they are in effect.

Id. at ¶7.9.

The United States filed its reply to Sealed Appellant 1’s response under seal (RE of Sealed Appellant 1 at tab 9). The United States accepted Sealed Appellant 1’s response that it does not have any of the requested information and stated that Sealed Appellant 1r had complied with the court’s order. Id. at p. I. It took the position that Sealed Appellant 1’s motion to declare the order unconstitutional was moot in light of that compliance. Id. at 2. As to the portion of the order prohibiting disclosure, the United States pointed out that it was based on 18 U.S.C. § 2705(b), the statutory mechanism for delaying notification of the existence of a warrant, subpoena or court order. Id. at p.2.

Magistrate Judge Crone denied the motion to quash as moot on August 16, 1999 (RE of Sealed Appellant 1 at tab 5). Sealed Appellant 1 appealed to the district court, which affirmed with written order on September 1, 1999 (RE of Sealed Appellant at tab 6). The court summarily held that Sealed Appellant 1 could not answer the subpoena and move to quash it (RE of Sealed Appellant 1 at tab 7).

Sealed Appellant filed its notice of appeal to this court on September 10, 1999 (RE of Sealed Appellant 1 at tab 3). While its appeal was pending, Sealed Appellant requested the Magistrate Judge on October 1, 1999, to stay paragraph seven of the original order (i.e., "Sealed Appellant 1 its agents and affiliates, shall not disclose the existence of the United States’ application or this order, or the existence of any investigation, to the listed subscriber or lessee or to any other person (except as necessary to carry out this order) until authorized to do so by this Court"), and requested the court to unseal the record. It claimed that the court’s non-disclosure order infringed on its First Amendment right "to comment publicly on newsworthy events." (RE of United States at tab 3).

The United States filed its reply under seal on October 27, 1999, arguing, in part, that the application should remain under seal "until such time as the investigation has concluded or formal proceedings against the target of the investigation have been initiated, either through arrest of on a criminal complaint or though the issuance of an indictment," and that unsealing the application might alert the target to the existence of the investigation and provide the opportunity to conceal evidence; (2) that Sealed Appellant 1’s motion for stay and to unseal was an attempt to relitigate issues finally resolved and that its remedy was in the Fifth Circuit Court of Appeals; (3) that Sealed Appellant 1 is not a representative of the "press" but rather a participant in the investigatory process because its web site was used as the vehicle to deliver a threat (RE of Sealed Appellee at tab 1). The United States offered to allow Sealed Appellant 1 to "print, publish, disseminate or post on the Internet a redacted version of Magistrate Crone’s June 16, 1999, Order. Id. at pp. 5-6 and n.1. The only requirement would be that all references to the recipient of the threat contained within the e-mails from ANNOY.COM be deleted." Id. According to the United States’ reply, Sealed Appellant 1 has indicated that it would be willing to accept this requirement. The Magistrate Judge denied Apollo Media motion to stay and unseal the record on October 28, 1999 (RE of United States at tab 2).

Sealed Appellant 1 also filed with this court a Motion for Stay Pending Appeal, or, in the Alternative, to Expedite Appeal and Motion to Unseal Record. In particular, Sealed Appellant 1 sought a stay of paragraph seven of the order entered by the district court on June 16, 1999 (RE of Sealed Appellant at tab 4, p.3). It also sought an order form this court directing the district court to unseal the entire record. Included with its application for a stay is the declaration by Sealed Appellant 1’s president which includes that assertion that he is a privacy advocate and intends to not reveal the identity of the victim on a voluntary basis (RE of Sealed Appellant 1 at tab 10, Declaration at ¶15). On November 24, 1999, this court entered an order denying Sealed Appellant 1’s stay pending appeal and his motion to unseal the record. It also ordered the appeal expedited.

SUMMARY OF ARGUMENT

Sealed Appellant 1 has failed to demonstrate a First Amendment violation due to the entry of a nondisclosure order in this case. Not all prior restraints on speech violate the First Amendment. Where information is obtained pursuant to a court order that both grants access to the information and places restraints on it, there is no First Amendment violation if the practice furthers an important government interest unrelated to the suppression of expression and the limitation on First Amendment freedoms is no greater than necessary or essential to the protection of that interest. Here, the nondisclosure order was designed to protect an ongoing criminal investigation, a substantial government interest. In addition, there is no common law right of access to information gained by the government at this stage of a criminal proceeding, that is, during the course of a criminal investigation and before formal charges are filed. Assuming arguendo, that the order should have been more narrowly drawn, the United States is not opposed to the court’s order be unsealed, so long as any references to the victim and other identifying information concerning the investigation is redacted.

ARGUMENT

PARAGRAPH SEVEN THE DISTRICT COURT’S ORDER IS A
CONSTITUTIONAL APPLICATION OF 18 U.S.C. §2705(B)

[Sealed Appellant 1] contends that paragraph seven of the district court’s order of June 16, 1999, is an unconstitutional prior restraint on free speech and violates his First Amendment rights. The order directed Sealed Appellant 1 to provide the United States with the information it had requested. In paragraph seven, the court ordered the following, pursuant to the provisions of §2705(b):

Sealed Appellant 1 its agents and affiliates, shall not disclose the existence of the United States’ application or this order, or the existence of any investigation, to the listed subscriber or lessee or to any person (except as necessary to carry out this Order) until authorized to do so by this Court.

(RE of Sealed Appellant 1 at tab 4, p.3). It is this portion of the order that Sealed Appellant 1 challenges.

This court reviews a district court’s decision on a motion to quash for abuse of discretion. See In re Grand Jury Proceedings, 115 F.3d 1240, 1243 (5th Cir. 1997). It reviews constitutional challenges de novo. United States v. Jennings, 195 F.3d 795, 800 (5th Cir. 1999).

Title 18 U.S.C. §2705(b) provides, in pertinent part:

A governmental entity acting under section 2703, when it is not required to notify the subscriber or customer under section 2703(b)(1), or to the extent that it may delay such notice pursuant to subsection (a) of this section, may apply to a court for an order commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for such a period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order. The court shall enter such an order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in … otherwise seriously jeopardizing an investigation or unduly delaying a trial.

18 U.S.C. §2705(b) (emphasis added).

The United States acted under section 2703, that is, 2703(c)(1)(A), which requires a provider to disclose records or other information pertaining to subscribers that do not pertain to the contents of the communications. It did not act pursuant to §2703(b)(1), the procedure for obtaining the content of electronic communications, therefore it was not required to notify the subscriber or customer under that section and §2705(b) applied.

The district court, in it order, found "that disclosure of this investigation or the United States’ application would seriously jeopardize the investigation." (RE of Sealed Appellant 1 at tab 4, p.1).

Sealed Appellant 1 argues that application of §2705(b) in this case constitutes an unconstitutional restraint of his First Amendment rights. He also argues that the sealing of the United States’ application prevents him from challenging the validity of §2705(b)’s application in this case. As to the latter assertion,

It is well established in this Circuit that district courts have an inherent power to receive in camera evidence and place such evidence under seal. See United States v. De Los Santos, 810 F.2d 1326, 1331-1333 (5th Cir. 1987). In the criminal context, we have recognized that the receipt of evidence ex parte permits the court to balance the interests of the Government in safeguarding its confidential informants and in ensuring the viability of its ongoing investigations against the interests of defendants in confronting adverse witnesses. See United States v. Singh, 922 F.2d 1169, 1172 (5th Cir. 1991) (holding that district court’s in camera review was appropriate, and that furnishing the appellant with a copy of the transcript of that review "would defeat the very purpose of the in camera procedure."). … Because courts routinely balance the interests of the Government in anonymity against that of civil litigants in full disclosure and have permitted the submission of evidence ex parte, see, e.g., Abell v. Potomac Insurance Co., 858 F.2d 1104, 1143 (5th Cir. 1988), vacated on other grounds, 492 U.S. 914, 109 S.Ct. 3236, 106 L.Ed.2d 584 (1989) (sealing the record of in camera discussions with FBI agent about attempts to bribe jury members); In re Grand Jury Witness, 835 F.2d 437, 441 (2d Cir. 1987) (permitting Government to file a sealed ex parte affidavit and to adjourn to chambers for ex parte discussion in closed civil contempt hearing), we find no abuse of discretion in the present case.

United States v. $9,041,598.68, 163 F.3d 238, 251 (5th Cir. 1998). In view of the United States’ need for nondisclosure to protect its ongoing investigation, no abuse of discretion is demonstrated.

In addition, the legislative history of the ECPA reflects that Congress intended for its provisions to take into account the government’s legitimate need for law enforcement activity. "While Congress acted to protect the privacy of electronic communications, the [Senate Judiciary Committee Report recommending passage of ECPA] … indicates that Congress intended to strike ‘a fair balance between the privacy expectations of American citizens and the legitimate needs of law enforcement agencies.’" Organization JD LTDA. v. U. S. Dept. of Justice, 124 F.3d 354, 360 (2d Cir. 1997) (quoting legislative history).

With regard to Sealed Appellant 1’s claim that the nondisclosure order constitutes an unconstitutional prior restraint on his First Amendment rights, the Supreme Court has observed "that ‘[f]reedom of speech … does not comprehend the right to speak on any subject at any time.’" Seattle Times Company v. Rhinehart, 467 U.S. 20, 31, 104 S.Ct. 2199, 2206 (1984) (citation omitted). Here, as in Seattle Times,

The critical question that this case presents is whether a litigant’s freedom comprehends the right to disseminate information that he has obtained pursuant to a court order that both granted him access to that information and placed restraints on the way in which the information might be used. In addressing that question it is necessary to consider whether the "practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression" and whether "the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved."

Id. 467 U.S. at 32, 104 S.Ct. at 2207. Here, Sealed Appellant 1 only came by the information its seeks to publish pursuant to a court order that simultaneously placed restraints on the manner in which it could be used. Like the district court’s discovery order in Seattle Times that prohibited dissemination of discovered information before trial, this case "is not the kind of classic prior restraint that requires First Amendment scrutiny. Id. 467 U.S. at 33, 104 S.Ct. at 2208. Protective orders such as the one entered in this case are lawful restraints on dissemination. See e.g. American Civil Liberties Union v. Mississippi, 911 F.2d 1066, 1072 (5th Cir. 1990) (citation omitted). Also, the government’s need for secrecy while its criminal investigation is ongoing is an important or substantial governmental interest unrelated to the suppression of expression; and, the limitation of First Amendment freedoms is no greater than is necessary or essential to the protection of the that interest. As the Court of Appeals for the Ninth Circuit explained in Times Mirror Co. v. United States, 873 F.2d 1210, 1217 (9th Cir. 1989), in determining there is no First Amendment right of access to search warrant proceedings that take place before indictment:

We believe that secrecy [of grand jury proceedings] is no less important to the process of investigating crime for the purpose of obtaining evidence to present to a grand jury. First, and most obviously, if the warrant proceeding itself were open to the public, there would be the obvious risk that the subject of the search warrant would learn of its existence and destroy evidence of criminal activity before the warrant could be executed. Additionally, if the proceeding remained closed but the supporting affidavits were made public when the investigation was still ongoing, persons identified as being under suspicion of criminal activity might destroy evidence, coordinate their stories before testifying, or even flee the jurisdiction.

(emphasis added).

Although the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents, that right is not absolute. Nixon v. Warner Communications, 435 U.S. 589, 597-98, 98 S.Ct. 1306, 1311-12 (1978). "Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes." Id. In addition, "[t]he First Amendment generally grants the press no right to information about a trial superior to that of the general public." Id. 435 at 609, 98 S.Ct. at 13.18.

"As a general rule, citizens have no first amendment right of access to traditionally nonpublic government information." McGehee v. Casey, 718 F.2d 1137, 1147 (D.C.Cir. 1983) (citations omitted). The First Amendment guarantees the press and public access to court proceedings, including documents, if such access has historically been available. United States v. El-Sayegh, 131 F.3d 158, 160 (D.C.Cir. 1997) (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 2740 (1986)). The stage of a criminal investigation that precedes formal charges is not traditionally one in which the public has a common law right of access.

Recognition of a right of access by the public and the press does not obliterate the differences between trial and pretrial, nor does it fix the judicial scales against closure beyond counterweight. Despite the categorical language of the first amendment, the rights it safeguards are not absolute. Like the freedom to speak, the freedom to publish, the freedom to exhibit movies, and other first amendment-protected rights, the right of courtroom access is limited by the constitutional right of defendants to a fair trial and "by the needs of the government to obtain just convictions and to preserve the confidentiality of sensitive information and the identity of informants."

United States v. Chara, 701 F.2d 354, 364 (5th Cir. 1983) (footnotes omitted, emphasis added). In view of the manner in which Sealed Appellant 1 received access to the information, the substantial government interest at stake and the absence of any public right of access to the information, no First Amendment violation is demonstrated.

Assuming, arguendo, that the court’s order is not sufficiently narrow to accommodate any First Amendment rights that Sealed Appellant 1 might have, the United States is not opposed to a redacted version of the order being unsealed by the district court. Such a version should omit all reference to the victim and to the specifics of the investigation to avoid putting the subjects of the investigation on notice as to its existence.

CONCLUSION

For these reasons, the denial of Sealed Appellant 1’s motion to quash should be affirmed. In the alternative, the case should be remanded to the district court with directions to unseal a redacted version of the order that keeps the victim’s identity and other identifying information about the investigation confidential.

Respectfully submitted,

MERVYN M. MOSBACKER
United States Attorney

KATHLYN G. SNYDER
Assistant United States Attorney

910 Travis Street, Suite 1500
P.O. Box 61129 Houston, Texas 77208-1129 (713) 567-9368

NO. 99-20849

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA

Plaintiff-Appellant

SEALED APPELLANT 1.

Defendant-Appellee.

On Appeal from the United States District Court

for the Southern District of Texas

Houston Division, Magistrate’s No. H-99-607-M

The United States of America, Plaintiff-Appellant, through the United States Attorney for the Southern District of Texas, files this brief in response to that of Defendant-Appellant (‘,”Sealed Appellant I “).

This appeal is from the order entered by the district court on September 1, 1999, denying Sealed Appellant I’s motion to quash as moot (Record Excerpts (“RE”) of Sealed Appellant I at tabs 6 and 7. Notice of appeal was filed timely an September 10, 1999 (RE of Sealed Appellant I at tab 3), thereby vesting this court with jurisdiction pursuant to 28 U.S.C. § 1291 ¹.

Whether Sealed Appellant I has failed to demonstrate any First Amendment violation due to the district court’s entry of a protective order pursuant to 18 U.S.C. §2705(b).

On June 16,1999, the United States filed ex parte and under seal an application for disclosure order under 18 U.S.C. § 2703(c) and (d). This statute sets forth the requirements under which the United States may require the disclosure of records concerning electronic communication service or subscriber information that is in the possession of an Internet Service Provider (IPS), In particular, it requested that Sealed Appellant I supply certain information. It also requested, pursuant to 18 U.S.C. §2705(b), that the application and order of the court be sealed, and that Sealed Appellant I be ordered not to disclose the existence or content of the order, except to the extent necessary to carry it out.

The application alleged that Apollo Media, a company doing business as ANNOY.COM, is an IPS, located in San Francisco, California. In April 1999, complainant [VOLUNTARILY WITHHELD BY APOLLOMEDIA ("Alleged Victim")], who is the [VOLUNTARILY WITHHELD], received electronic mail ("e-mail”) via ApolloMedia, which she interpreted as both offensive and threatening. The person suspected of sending the application was identified as a John Doe (Doe), a [VOLUNTARILY WITHHELD] student in [VOLUNTARILY WITHHELD] at the University of Houston who had filed a discrimination complaint with the Affirmative Action Office of the University of Houston in August of 1 999. (See Application at 2.)

On April 5, 1999, Doe met with "Alleged Victim" and expressed his anger about the manner in which his discrimination complaint was being handled. The next day, "Alleged Victim" found a large nail in one of the tires on her car. On April 8, 1999, "Alleged Victim" notified Doe by letter that the Affirmative Action Office was dismissing his discrimination complaint as without merit. The next day, "Alleged Victim" found another large nail in one of her tires.

On April 20, 1999, "Alleged Victim" notified Doe by telephone that the Affirmative Action Office was dismissing his complaint. Within 15 minutes of that telephone call, Trevino received the following e-mail in the form of a postcard from “your friend at UH” via Apollo Media. The postcard contained an offensive photograph with the phase “‘OPEN PUSSY, OPEN MIND” superimposed over it, and was worded as follows:

(Exhibit A to Application). She contemporaneously received a second “‘hate mail ge-mail from “UH Employee” using the CARTALK-CARS-COM "hate mail generator."³

Lieutenant Malcom Davis with the University of Houston Police Department began investigating a possible violation of 18 U.S.C. § 875 (c) (threat to injury the person of another which is transmitted in interstate commerce), as well as potential state offenses. The United States requested that Apollo Media disclose subscriber records and other information, including computer log files, pertaining to John Doe. In particular, the United States requested that Apollo Media be directed to produce:

(a) all records concerning John Doe which are stored on any ApolloMedia log files which show e-mail traffic from John Doe’s account to "Alleged Victim", at e-mail account [VOLUNTARILY WITHHELD] or any other e-mail address whatsoever, from April 20, 1999 until the date this order is signed; and

(b) all basic subscriber information for John Doe which ApolloMedia has in its possession or under its control, (Application at 5).

United States Magistrate Judge Marcia A. Crone granted the United States’ application and its request to seal on June 16, 1999, the date it was filed. 1n particular, the court found (1) reasonable grounds to believe that the information sought is relevant and material to an ongoing criminal investigation, and that (2) disclosure of this investigation or the United States’ application would seriously jeopardize the investigation (RE of Scaled Appellant at tab 4,p. 1). It ordered Sealed Appellant I to provide the above listed information within three (3) days of the order. Paragraph seven of the order directed Scaled Appellant I not to disclose its existence or the existence of the investigation, except as necessary to carry out the order, until authorized to do so by the court (RE of Sealed Appellant I at tab 4, p.3).

Sealed Appellant I filed its response under seal on June 23, 1999, and moved to quash the order (RE of Sealed Appellant I at tab 8). In particular, Sealed Appellant I responded that there were three electronic postcards from its service to the identified address, but disclaimed any knowledge as to the sender.

(RE of Sealed Appellant I at tab 8).

Sealed Appellant I alternatively argued that compliance with the court’s order would be unduly burdensome, that it would invade the privacy of persons other than John Doe who used Sealed Appellant I’s Internet service. Id. at ¶5. It claimed that the order is unconstitutional in that it failed to provide adequate notice and violated the First Amendment right to free speech. Id. at 17.1-7.3. Sealed Appellant I claimed that the fact of an ongoing investigation is a newsworthy event:

¶d. at 17.9.

The United States filed its reply to Sealed Appellant I’s response under seal (RE of Sealed Appellant I at tab 9). The United States accepted Sealed Appellant I’s response that it does not have any of the requested information and stated that Sealed Appellant I had complied with the court’s order. Id. at p. 1. It took the position that Sealed Appellant I’s motion to declare the order unconstitutional was moot in light of that compliance. Id. at 2. As to portion of the order prohibiting disclosure, the United States pointed out that it was based on 18 U.S.C. § 2705(b), the statutory mechanism for delaying notification of the existence of a warrant, subpoena or court order. Id. at p.2.

Magistrate Judge Crone denied the motion to quash as moot on August 16, 1999 (RE of Sealed Appellant 1 at tab 5). Sealed Appellant 1 appealed to the district court, which affirmed with written order on September 1, 1999 (RE of Sealed Appellant at tab 6). The court summarily held that Sealed Appellant 1 could not answer the subpoena and move to quash it (RE of Sealed Appellant at tab 7).

Sealed Appellant I filed its notice of appeal to this court on September 10, 1999 (RE of Sealed Appellant I at tab 3). While its appeal was pending, Apollo Media requested the Magistrate Judge on October 1, 1999, to stay paragraph seven of the original order (i.e., [Sealed Appellant 1] its agents and affiliates, shall not disclose the existence of the United States’ application or this order, or the existence of any investigation, to the listed subscriber or lessee or to any other person (except as necessary to carry out this order) until authorized to do so by this Court”), and requested the court to unseal the record. It claimed that the court’s non-disclosure order infringed on its First Amendment right “to comment publicly on newsworthy events.” (RE of United States at tab 3).

The United States filed its reply under seal on October 27, 1999, arguing, in part, that the application should remain under seal "until such time as the investigation has concluded or formal proceedings against the target of the investigation have been initiated, either through arrest of on a criminal complaint or though the issuance of an indictment," and that unsealing the application might alert the target to the existence of the investigation and provide the opportunity to conceal evidence; (2) that Sealed Appellant I’s motion for stay and to unseal was an attempt to relitigate issues finally resolved and that its remedy was in the Fifth Circuit Court of Appeals; (3) that Sealed Appellant I is not a representative of the “press” but rather a participant in the investigatory process because its web site was used as the vehicle to deliver a threat (RE of United States at tab 1). The United States offered to allow Sealed Appellant I to “print, publish, disseminate or post on the Internet a redacted version of Magistrate Crone’s June 16, 1999, Order. Id. at pp. 5-6 and n. I. The only requirement would be that all references to the recipient of the threat contained within the e-mails from ANNOY.COM be deleted.” Id. According to the United States’ reply, Sealed Appellant I has indicated that it would be willing to accept this requirement.⁴ The Magistrate Judge denied Sealed Appellant I Is motion to stay and unseal the record on October 28, 1999 (RE of Sealed Appellee 1 at tab 2).

Sealed Appellant I also filed with this court a Motion for Stay Pending Appeal, or, in The Alternative, to Expedite Appeal and Motion to Unseal Record. In particular, Sealed Appellant I sought a stay of paragraph seven of the order entered by the district court on June 16, 1999 (RE of Sealed Appellant at tab 4, p.3). it also sought an order form this court directing the district court to unseal the entire record. Included with its application for a stay is the declaration by Sealed Appellant I’s president which includes that assertion that he is a privacy advocate and intends to not reveal the identity of the victim on a voluntary basis (RE of Sealed Appellant I at tab 10, Declaration atJ15). On November 24,1999, this court entered an order denying Sealed Appellant I’s stay pending appeal and his motion to unseal the record.

It also ordered the appeal expedited.

Sealed Appellant I has failed to demonstrate a First Amendment violation due to the entry of a nondisclosure order in this case. Not all prior restraints on speech violate the First Amendment. Where information is obtained pursuant to a court order that both grants access to the information and places restraints on it, there is no First Amendment violation if the practice furthers an important government interest unrelated to the suppression of expression and the limitation on First Amendment freedoms is no greater than necessary or essential to the protection of that interest. Here, the nondisclosure order was designed to protect an ongoing criminal investigation, a substantial government interest. In addition, there is no common law right of access to information gained by the government at this stage of a criminal proceeding, that is, during the course of a criminal investigation and before formal charges are filed. Assuming arguendo that the order should have been more narrowly drawn, the United States is not opposed to the court’s order be unsealed, so long as any references to the victim and other identifying information concerning the investigation is redacted.

Sealed Appellant I contends that paragraph seven of the district court’s order of June 16, 1999, is an unconstitutional prior restraint on free speech and violates his First Amendment rights. The order directed Sealed Appellant I to provide the United States with the information it had requested. In paragraph seven, the court ordered the following, pursuant to the provisions of §2705(b):

(RE of Sealed Appellant I at tab 4, p.3). It is this portion of the order that Sealed

Appellant 1 challenges.

This court reviews a district court’s decision on a motion to quash for abuse of

discretion. See In re Grand Jury Proceedings, 115 F-3d 1240, 1243 (5 1h Cir. 1997).

It reviews constitutional challenges de novo. United States v. Jennings, 195F.3d795,

800 (S’h Cir. 1999).

Title 18 U.S.C. §2705(b) provides, in pertinent part:

18 U.S.C. §2705(b) (emphasis added).

The United States acted under section 2703, that is, 2703(c)(1)(A), which requires a provider to disclose records or other information pertaining to subscribers that do not pertain to the contents of the communications.⁵ It did not act pursuant to §2703(b)(1), the procedure for obtaining the content of electronic communications, therefore it was not required to notify the subscriber or customer under that section and §2705(b) applied.

The United States requested the district court to place its application for an order pursuant to §2703(d) and the ensuing order under seal “‘until such time as the court directs otherwise…" Application atp.5. It also requested that ApolloMedia “be ordered not to disclose the existence or content of the Order, except to the extent necessary to carry out the Order.” Id. In support of its requests, the United States asserted:

Application at p.5. The district court, in it order, found “that disclosure of this investigation or the United States’ application would seriously jeopardize the investigation.”‘ (RE of Sealed Appellant I at tab 4, p. 1).

Sealed Appellant I argues that application of §2705(b) in this case constitutes an unconstitutional restraint of his First Amendment rights. He also argues that the sealing of the United States’ application prevents him from challenging the validity of §2705(b)’s application in this case. As to the latter assertion,

United States v. $9,041,598.68, 163 F.3d 238, 251 (5″ Cir. 1998). In view of the United States’ need for nondisclosure to protect its ongoing investigation, no abuse of discretion is demonstrated.

In addition, the legislative history ofthe ECPA reflects that Congress intended for its provisions to take into account the government’s legitimate need for law enforcement activity. “While Congress acted to protect the privacy of electronic communications, the (Senate Judiciary Committee Report recommending passage of ECPA] …’indicates that Congress intended to strike a fair balance between the privacy expectations of American citizens and the legitimate needs of law enforcement agencies.”‘ Organization JD LTDA. V U. S. Dept. ofJustice, 124 F-3 d

354, 360 (2d Cir. 1997) (quoting legislative history).

With regard to Sealed Appellant I’s claim that the nondisclosure order constitutes an unconstitutional prior restraint on his First Amendment rights, the Supreme Court has observed "that ‘[f]reedom of speech … does not comprehend the right to speak on any subject at any time.”‘ Seattle Times Company v. Rhinehart, 467 U.S. 20, 31, 104 S.Ct. 2199, 2206 (1984) (citation omitted). Here, as in Seattle Times,

Id. 467 U.S. at 32, 104 S.Ct. at 2207. Here, Sealed Appellant I only came by the information it seeks to publish pursuant to a court order that simultaneously placed restraints on the manner in which it could be used. Like the district court’s discovery order in Seattle Times that prohibited dissemination of discovered information before trial, this case “is not the kind of classic prior restraint that requires First Amendment entered in this case are lawful restraints on dissemination. See e.g. American Civil Liberties Union v. MississiPP, 911 P.2d 1066,1072 (5d, Cir. 1990) (citation omitted).

Also, the government’s need for secrecy while its criminal investigation is ongoing is an important or substantial governmental interest unrelated to the suppression of expression; and, the limitation of first Amendment freedoms is no greater than is necessary or essential to the protection of the that interest. As the Court of Appeals for the Ninth Circuit explained in Times Mirror Co. v. United States, 873 F.2d 1210, 1217 (9th Cir. 1989), in determining there is no First Amendment right of access to search warrant proceedings that take place before indictment:

(emphasis added).

Although the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents, that right is not absolute. Nixon v. Warner Communications, 435 U.S. 589, 597-98, 98 S.Ct. 1306,1311-12 (1978). “Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes.” Id. In addition, “[t]he First Amendment generally grants the press no right to information about a trial superior to that of the general public.”‘ Id. 435 at 609, 98 S.Ct. at 13 1 S.

“As a general rule, citizens have no first amendment right of access to traditionally nonpublic government information. ” McGehee v. Casey, 718 F.2d 113 7, 1147 (D.C.Cir.1983) (citations omitted). The First Amendment guarantees the press and public access to court proceedings, including documents, if such access has historically been available. United States v. EI-Sayagh, 131 F.3d 158, 160 (D.C.Cir. 1997) (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 273 5, 2740 (1986)). The stage of a criminal investigation that precedes formal charges is not traditionally one in which the public has a common law right of access.

United States v. Chara, 701 F.2d 354, 364 (5″ Cir. 1983) (footnotes omitted, emphasis added). In view of the manner in which Sealed Appellant I received access to the information, the substantial government interest at stake and the absence of any public right of access to the information, no First Amendment violation is demonstrated.

Assuming, arguendo, that the court’s order is not sufficiently narrow to accommodate any First Amendment rights that Sealed Appellant I might have, the United States is not opposed to a redacted version of the order being unsealed by the district court. Such a version should omit all reference to the victim and to the specifics of the investigation to avoid putting the subjects of the investigation on notice as to its existence.

For these reasons, the denial of Sealed Appellant I’s motion to quash should be affirmed. In the alternative, the case should be remanded to the district court with directions to unseal a redacted version of the order that keeps the victim’s identity and other identifying information about the investigation confidential.

FOOTNOTES

1 See Certain Interested Individuals, John Doe,s Who Are Employees of McDonnell Douglas Corp. v. Pulitzer Publishing Co., 895 F?2d 460,462 (8th Cir.1990) (and authorities cited therein).

2 Because the relevant facts are the course of proceedings below, the United States has combined the discussion into one section.

3 See Appendix B to application. This e?mail wrote:

“Let me put it bluntly. Putting you in a car is like putting an Elephant in a plate glass window factory. It’s like putting dog shit in an enchilada. In other words, it’s a bad idea

I saw you trying to get out of a parking space the other day. I thought [VOLUNTARILY WITHHELD BY APOLLOMEDIA] was driving. First you hit the Fiat in front of you, then you hit the police car behind you, then you backed into a rhododendron.

Then you went barreling down the street like a Rhino with a hemorrhoidal flare up, and almost ran down a poor little old lady and her three?legged pigion. When she saw you coming, the poor woman looked like she was about to pass a large lego. But did you slow down? No. You acted like your were late for your get drunk appointment. You dragged her and her pigion three blocks until you were stopped by a mob of angry University of Houstons.

And that left turn you took! Who taught you to take a left turn? Speedy Gonzalez? Haven’t you ever heard of turn signals. What do you think that lever is for, to hang your thong underwear on?

The worst thing, though, was when I saw you try to merge. You were so pushy, you reminded me of Tio pepe at the Taco Bell take?out window.

To top it all off, you made a U?turn in the middle of 1?80 during rush hour. What happened? Did you suddenly remember that you left cartalk.com up on our bosses computer screen?

If it were up to me, I would take your license and let Alfonse D’Amato use it clean his Anus. And please do us all a favor and stay off the roads, at least until Don Imus is invited back to the White House.”

4 Tbe United States advised the court that it “offered to discuss the publication of a redacted version of Magistrate Judge Crone’s June 16, 1999, Order with counsel for Apollo in a telephone message to counsel for Apollo on August 27, 1999,” and *,[t]hat offer remains open.” See Reply at n. 1.

5 Section 2703(c)(1)(A) of the Electronic Communications Privacy Act of 1986 (the “ECPA”) provides, in pertinent part, that

A provider of electronic communication service or remote computing service shall disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a) or (b) of this section) to a governmental entity only when the governmental entity … (ii) obtains a court order for such disclosure under subsection (d) of this section….

I8 U.S.C. §2703(c)(1)(A).

Respectfully submitted,

MERVYN M. MOSBACKER

United States Attorney

KATHLYN G> SNYDER~

Assistant United States Attorney

910 Travis Street, Suite 1500

P.O. Box 61129

Houston, Texas 77208-1129

(713) 567-9368

No. 99-20849 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SEALED APPELLANT 1,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas, Houston Division

Magistrate’s No. H-99-607-M

FILED UNDER SEAL

REPLY BRIEF OF SEALED APPELLANT 1

Introduction

The plot gets curiouser and curiouser. First the Government, on a secret application, obtains a United States Magistrate’s Order (the “Magistrate’s Order”) that requires ApolloMedia to produce, on three days’ notice, documents concerning a supposed criminal investigation conducted by a private university. Then Paragraph 7 of the Magistrate’s Order prohibited ApolloMedia from even mentioning the existence of the Government’s application or the Magistrate’s Order “until authorized to do so by this Court.” Now, seeking to defend this gag order on the ground that it had a compelling interest in placing a prior restraint on ApolloMedia’s speech, the Government has provided ApolloMedia with only a “redacted” version of the brief it has presented to this Court, a version that omits all discussion of the Government’s supposed compelling interest. Thus, ApolloMedia finds itself in the impossible position of fighting blindly against a gag order that continues to impose limitations on its First Amendment rights without even an inkling of the facts, if any, supporting the Government’s alleged interest in secrecy.

Nonetheless, well-established Supreme Court and Fifth Circuit precedent compels the conclusion that Paragraph 7 of the Magistrate’s Order is an unconstitutional prior restraint of speech. The cases that the Government cites in its brief do not support its extreme position. The gag order imposed on ApolloMedia should be lifted.

The Magistrate’s Order Is Unconstitutional

The Government argues in its response that Paragraph 7 of the Magistrate’s Order was simply an application of 18 U.S.C. § 2705(B). The statute provides that a court may render an order that commands a provider of electronic communications “not to notify any other person of the existence of the warrant, subpoena, or court order” “for such a period as the court deems appropriate.” 18 U.S.C. § 2705(B). But the statute must be construed consistently with the Constitution.

As discussed in ApolloMedia’s brief, Section 2705(B) cannot authorize such a broad and unwarranted prior restraint on ApolloMedia’s free speech. See Worrell Newspapers of Indiana, Inc. v. Westhafer, 739 F.2d 1219, 1222 (7th Cir. 1984)(striking down an Indiana state statute that prohibited public disclosure of a sealed indictment as an unconstitutional prior restraint). The gag order can only be upheld if the Government carries the burden of showing under the “most exacting scrutiny” that it has a “compelling” interest in accomplishing the prior restraint, and there is no less restrictive means of accomplishing the Government’s compelling interest, with the “heavy presumption” that the order is unconstitutional. Id. (citing Smith v. Daily Mail Pub. Co., 443 U.S. 97, 101-02 (1979); First National Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 585 (1983); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)). See also Davis v. East Baton Rouge Parish School Bd., 78 F.3d 920, 928 (5th Cir. 1996)(“A prior restraint is constitutional only if the government demonstrates that the protected speech restrained poses a ‘clear and present danger, or a serious or imminent threat to a protected competing interest.’ … Furthermore, ‘[t]he restraint must be narrowly drawn and cannot be upheld if reasonable alternatives are available having a lesser impact on First Amendment freedoms.”)(citations omitted).

Even the limited facts available to ApolloMedia compel the conclusion that the Magistrate’s Order is unconstitutional. Without the benefit of reviewing the Government’s application or even the Government’s argument to this Court, ApolloMedia cannot be expected completely to rebut the Government’s asserted interest in preventing ApolloMedia’s speech. But even without the record, the breadth and indeterminate duration of the gag order indicate that it was not the least restrictive means of accomplishing the Government’s goals. Furthermore, the ease with which the Government obtained the Magistrate’s Order strongly suggests that the Government’s application did not receive the “most exacting scrutiny.”

Paragraph 7 Of The Magistrate’s Order Is A Prior Restraint On ApolloMedia’s Speech, Not A Protective Order On A Party To An Existing Civil Lawsuit

The Government likens Paragraph 7 of the Magistrate’s Order to a protective order that prevents parties in a civil case from publicly disclosing information they have obtained in the course of discovery. On this basis, the Government argues that under Seattle Times Company v. Rhinehart, the gag order should be upheld so long as it furthers a governmental interest unrelated to the suppression of expression and the limitation of First Amendment freedoms is no greater than necessary to protect the governmental interest. The Government’s analogy fails.

First, ApolloMedia is not a party to any case. The Seattle Times decision was premised on the fact that the Seattle Times had obtained information in the civil discovery process. The trial court had compelled the production of financial records and other private information to the Seattle Times in discovery but issued a protective order to prevent the Seattle Times from publicly disclosing that information. 467 U.S. 20, 27 (1984). The Supreme Court determined under those circumstances that the protective order was subject to First Amendment scrutiny but could not be considered to be an invalid prior restraint on speech. Id. at 31. The Court imposed a lower level of First Amendment scrutiny because it found that “judicial limitations on a party’s ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination in a different context.” Id. at 34. Here, in contrast, ApolloMedia is an innocent third party that was thrust into this controversy when it was served with the Magistrate’s Order, and the order forbids it from telling anybody about either the controversy or the Order. It did not obtain independent information only “pursuant to a court order” and with the court’s assistance, as in Seattle Times.

Second, Paragraph 7 of the Magistrate’s Order imposes heavier restrictions on ApolloMedia’s speech than the protective order in Seattle Times. The protective order in Seattle Times prevented the newspaper from “publishing or disseminating” information received during discovery but “[b]y its terms, … did not apply to information gained by means other than the discovery process.” Id. at 27. The Magistrate’s Order, in contrast, does not merely prohibit ApolloMedia from disclosing private information, if any, that it received pursuant to the order. It also prevents ApolloMedia from speaking to anyone for an indeterminate amount of time about the unorthodox way in which the Government obtained the order and the very existence of the order itself.

In short, the Magistrate’s Order infringes ApolloMedia’s First Amendment rights to a far greater extent that the protective order at issue in Seattle Times. The Court must apply the highest level of scrutiny.

The Government’s Arguments Regarding Public Right Of Access And In Camera Review Of Evidence Miss The Mark

The Government also relies on cases involving the public right of access to nonpublic government information to attempt to lower the level of scrutiny that this Court should use in reviewing the gag order. Again, the analogy is not apt.

Each of the public access cases that the Government cites – Nixon v. Warner Communications, American Civil Liberties Union v. Mississippi, and Times Mirror Co. v. United States – involved private citizens seeking access to materials in the possession of the courts. In such situations, the Supreme Court has established that courts have discretion to limit the public’s common law right to inspect and copy court records, and the First Amendment does not grant the press a right of access to information that the courts have not made public. Nixon v. Warner Communications, 435 U.S. 589, 597-99 (1978). These cases have no bearing on this controversy because ApolloMedia is not seeking access to private government information. ApolloMedia is merely seeking to speak freely about information that it has already learned.

Similarly, the Government’s discussion of U.S. v. $9,041,598.68 is inapposite. That case involved the court’s power to receive in camera the Government’s evidence regarding corruption at the highest levels of the Mexican attorney general’s office. 163 F.3d 238, 244-45, 251 (5th Cir. 1998). In the context of the forfeiture proceedings at issue, the Court determined that the Government’s interest in protecting the confidentiality of its sources outweighed the claimant’s interest in viewing the evidence that the Government used to obtain its seizure order. Id. at 251. Again, this case involved access to evidence, not a prior restraint on speech.

Finally, the Government’s citation to McGehee v. Casey – a case involving limitations on an ex-CIA agent’s right to publish secrets learned during his employment – is inapposite because that case explicitly turned on the Government’s interest as an employer in regulating the speech of employees. 718 F.2d 1137, 1141 (D.C. Cir. 1983) (“[T]he State has interests as employer in regulating the speech of employees that differ significantly from those it possesses in connection with regulation of speech of the citizenry in general.”). Such prepublication review restrictions on former CIA agents are contractually or otherwise voluntarily assumed and therefore have been excluded from the prohibition against prior restraints. See Snepp v. United States, 444 U.S. 507, 509 n.3 (1980).

The Government’s Offer To Redact The Magistrate’s Order Effectively Concedes The Lack Of A Compelling Interest In Maintaining Its Secrecy

In its brief, the Government acquiesces to the redaction and release of the Magistrate’s Order. This demonstrates that the Government has no compelling interest in prohibiting ApolloMedia from speaking about it.

The Court Should View The Government’s Rendition Of The Facts In This Matter With Skepticism

The Government’s rendition of its offer to redact the Magistrate’s Order in the proceedings before the District Court is inaccurate, and shows that the Court should treat the Government’s Response with skepticism. The Government’s redacted brief states,

The United States advised the court that it “offered to discus s the publication of a redacted version of Magistrate Judge Crone’s June 16, 1999, Order with counsel for Apollo in a telephone message to counsel for Apollo on August 27, 1999,” and “[t]hat offer remains open.”

(Redacted Brief of Plaintiff-Appellee, at 7 fn.3.) The Government thereby restates a similar prior statement to the district court. (RE of Plaintiff-Appellee at Tab 1, p.5 fn.1.) The truth, however, is that both statements are erroneous and that Assistant U.S. Attorney J. Richard Berry, after making the erroneous statement to the district court, wrote to ApolloMedia’s counsel to apologize and stated “I apologize for any suggestion in my pleading that you had ignored my earlier telephone call regarding the release of a redacted version of Magistrate Judge Crone’s Order. I may have misdialed the number or I may have been much less than clear in my message. In any event, I apologize if I implied that you or your client had ignored my offer to release a redacted version of the order.” (See Sealed Appellant’s Motion to Augment the Record and to Strike, Exhibit A.) Notwithstanding the Government’s apology, however, the Government elected not to correct the record in the district Court and to repeat its misstatements in this court, knowing they were wrong.

The Government’s misrepresentation of these basic procedural facts is especially troubling because ApolloMedia has not had the opportunity to scrutinize the entire record and the argument made in the Government’s unredacted brief.

Request For Oral Argument

As ApolloMedia stated in its opening brief and its Motion to Expedite, the constitutional issues raised by the gag order merit oral argument. This Court agreed in its Order expediting this appeal and designated this matter for oral argument before the first available oral argument panel. Order Dated November 24, 1999.

In its continuing effort to put wraps on this proceeding, the Government contends that “Oral argument should be denied because (1) the facts and legal arguments are adequately presented in the briefs and record and (2) the decisional process would not be significantly aided by oral argument.” To eliminate any doubt about ApolloMedia’s position, ApolloMedia restates its request for oral argument. Consistently with its position that these proceedings should be unsealed, ApolloMedia also requests that the oral argument in this case be in open court in accordance with the Court’s customary procedures.

Conclusion

Secret proceedings, ex parte evidence, and gag orders are the instruments of a totalitarian regime. They are intolerable in a free country. The Government has abused ApolloMedia’s rights under the First Amendment and under the Due Process Clause. It has aggravated that abuse in this court with a secret brief, undisclosed to ApolloMedia.

This Court should remedy the violations of the Constitution as follows:

1. By a published order reversing the gag order and instructing the court below to vacate it.

2. By a published order unsealing the proceedings in this Court, including the secret brief of the Government, and further ordering the court below to unseal all proceedings affecting ApolloMedia, including the Government’s initial application in the court below for an order requiring ApolloMedia to respond to the Government’s demands for information.

3. By a published order requiring the Government forthwith to deliver to ApolloMedia true and exact copies of its secret brief in this Court and such secret initial application for an order in the court below.

4. By a published opinion that discloses the violations of constitutional rights that occurred in this case and that demonstrates beyond question that the Court will not tolerate the tactics that the Government has employed.

5. By a published order instructing the court below to provide ApolloMedia with any and all additional relief that is fair and proper in the circumstances.

Dated: January 18, 1999 Respectfully submitted,

Mark L.D. Wawro
SUSMAN GODFREY LLP

William Bennett Turner
ROGERS, JOSEPH, O’DONNELL & QUINN

Michael Traynor
Lori R.E. Ploeger
J. Timothy Nardell
COOLEY GODWARD LLP

By:_________________________________
Michael Traynor

ATTORNEYS FOR APOLLOMEDIA CORP.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Proceedings held before the Honorable Emilio M. Garza, the Honorable Harold DeMoss, and the Honorable Carl E. Stewart, Fifth Circuit Court of Appeal, 600 Camp Street, New Orleans, Louisiana, on Thursday, the 4th day of May, 2000.

APPEARANCES:

APPEARANCES (continued):

ALSO PRESENT:

REPORTED BY:

MR. TRAYNOR:

May it please the Court. Michael Traynor. With me at counsel table is my co-counsel, Lori Ploeger and Timothy Nardell, and in the courtroom is Clinton Fein, the president of ApolloMedia, Inc.

The key points I’d like to make this morning are that the gag order of the government is an unconstitutional restraint, that this is an expression –that this is an expression case, not an access to other people’s files case. That this case is not moot, notwithstanding the last minute maneuver of the federal government to preclude review, and lastly to make specific suggestions about relief that we are seeking from this court.

We greatly appreciate Your Honors granting this hearing today and your making it in open court, which is very important.

This prior restraint is one of unprecedented breadth in this case, it’s lasted over 10 months. It not only dealt with the contents of the order but even the very existence of the order and the application of it.

It’s the most intolerable kind of infringement of First Amendment rights under our Constitution. It comes to this court with a heavy presumption against its validity and a heavy burden on the government to try to sustain it. Even when a limited prior restraint is issued it has to be narrowly drawn. There was no limitation in time in this order, there was no limitation in scope, and we’ve just learned from the receipt of the papers on April llth, that there was hardly any justification at all for this.

There are two requirements under the statute under which the government proceeded. First, to get an order of the kind that was issued here, the government must show specific and articularable facts to believe that the records are relevant to an ongoing criminal investigation. Here we have a pro forma application that’s not accompanied by any affidavit or declaration. There is no testimony, there appears to be no hearing. We don’t have even the scrutiny that’s given a search warrant or the protection of an accompanying affidavit. When we come to the gag order, the statute, 2705B, explicitly requires that the order last only for such period as the court deems appropriate.

Here the order specified it would last until authorized by the court. It was indefinite. It’s lasted for over 10 months. Compare the 90 day provision under the late notice provision of the statute 2705A with regard to the disclosure of the contents themselves which are on the record. It also requires, the statutes require that the court determine that there’s reason to believe that notification of the existence of the order will result in one of 5 very serious things, the one relied on by the government as it would seriously jeopardize an investigation. Here we find out just on April llth, but again no declaration or affidavit, no-evidence conclusory allegations by the government that John Doe might destroy evidence, nothing at all on the separate point of the gag order, a pro forma proceeding rubber stamped by the magistrate and again no hearing.

Now, we’re dealing here with core First Amendment values. The operations of the courts and the judicial conduct of judges are matters of the utmost public concern. Here we have a blanket gag order unlimited in time, unlimited in scope, issued without evidence or a hearing. We have the highest levels of our government involved, the Solicitor General’s office has now come into this court to be involved in this case. It’s the process of rubber stamping the United States Attorney’s conclusory allegations, it’s done at the instance of a public institution of higher learning that ought to be devoted to the expansion of knowledge and fostering of knowledge not the suppression of it. This case has been aggravated not only with a gag order but by secret proceedings, secret briefs, last minute maneuvers.

There is a critical public issue today, as the court knows, about privacy in the internet and governance of the internet. We have two presidential candidates, one claims to be the father of the internet. Part of this government that brought these repressive unconstitutional proceedings. The other is in the State of Texas, indeed from the town of Houston where this case emanates.

JUDGE STEWART:

You want to make a legal argument or a political?

MR. TRAYNOR:

No, not — this is a very strong legal argument to show the proof of our legal argument.

JUDGE STEWART:

Make your legal — Hold on. Make your legal argument which is what’s relevant to the court and separate out the political part. We understand the nature of the claim, because bear in, you know, more on the specifics of the claim. When you talk about rubber stamping by the magistrate and so on and so forth, that’s political, so let’s change course a little bit.

MR. TRAYNOR:

The central point, Your Honor, is that the prior restraint in this case affected not just ordinary speech, but speech and expression close to the core values of the First Amendment, and what the First Amendment is all about and about having the proceedings of courts and the government be open for comment and discussion.

Let me turn to the point that this case involves expression, fundamental expression and not access to other people’s materials. The government has a line of cases, Seattle Times and so forth, where there have been protective orders where a litigant for the press has sought access to materials. But here, in this case, we would deliberately — we lawfully got it, we were not seeking access, the government is seeking access. The government is seeking access to our client’s transcripts. We are not an outside member of the press seeking access to somebody else’s proceedings. We did not enter into any agreement. We didn’t seek a discovery on behalf of the Seattle Times or agree to be part of the protective order situation. In all of these situations, which the government relies on, they are, the press is seeking access.

There’s a First Amendment right to get that information. But it’s a different type of situation from an expression case. When there’s a prior restraint in an expression case you can’t say anything about it. In the access case people are quite free to talk about what they have and what they know. And in the expression cases, even when something has been surreptitiously or unlawfully obtained as in the Pentagon papers case, you’re perfectly free to talk about it. In the Pentagon papers case by contrast the government came into court, it has testimony, it has declarations. The proceedings were in court for opposing counsel to be present and even in that case, and even though the government sought only a very limited restraining order, the courts declined to issue a prior restraining order and the United States Supreme Court established the fundamental principle that no matter how surreptitiously obtained, the press is not to be stopped from publishing information which is the core of the First Amendment values.

Let me say a word about mootness. This is a typical paradigm case, that’s one where the issue is capable of repetition, yet evading review. The United States will certainly do this again and the ApolloMedia is a representative case of the First Amendment. It’s a repeat player. This is a statute that has national significance, it’s a national forum. It’s an internet service provider. It’s a provider over which people can send annoying messages. This voluntary maneuver, again secret, we haven’t even seen the motion that the government filed. This voluntary maneuver does not moot the case. It’s like the Procter & Gamble case where the court tried to do, the court below tried to do two things, keep the gag order alive and yet permit to unseal the record.

It was just a gambit that the appellate court was wise enough to reject, and even if the government’s theory was accepted, which we don’t think it should be, even if it is accepted, this case is not moot. It clearly is not moot as to the names of the institution of higher learning, the e-mail address of the sender, the name of the recipient that our client has voluntarily refrained from disclosing. And other identifying information and references to the other possible investigating entities in this case, besides the federal government.

To say that a prior restraining is moot after modification of this sort would mean that a district court can create an unreasonable 10 month exception to the prior restraint rule that was not allowed for three weeks in the Procter & Gamble case and surely should not be allowed here.

But let me say a word about relief. In the court this is the first case that we know of under this statute, understandably the court is going to have to wrestle with the tensions between the First Amendment rights and the legitimate need of law enforcement and investigation. But here we have a clear marking point. This order is clearly unconstitutional. So we suggest, one, that the court unequivocally reverse the prior restraint and itself vacate the order. Second, to unseal the proceedings in this proceeding as they affect the ApolloMedia, certainly the briefs and records that affect the ApolloMedia in this case. And third, we would request that the court publish an opinion that clearly discloses the unconstitutional violations-and conduct of the government that occurred in this case, that demonstrates that this court, this circuit will not allow unverified applications, pro forma showings, lack of substantial, really substantial government interest as what occurred here. And we would also request fourthly, that the court instruct the district court to allow ApolloMedia all other appropriate relief that’s fair and proper in the circumstances.

I think I’ve reserved five minutes for rebuttal, Your Honors. Thank you very much, Your Honors.

JUDGE GARZA:

Thank you.

MS. STRAUBER:

May it please the Court — may it please the Court, I’m Jocelyn Strauber from the Department of Justice and I’m here on behalf of the United States. I’d first like to clarify before this court why I’m here. I am from the Solicitor General’s office and the office has had a relationship with various District Attorneys offices, United States attorneys offices whereby they will give our office cases for younger attorneys to argue to get experience and that is why I’m here.

I’d first like to address the recent developments in this case which bear on the issue of movement and then turn to the merits.

The order requiring appellant to disclose its records and the government’s application for that order was recently unsealed by the magistrate judge with the victims name and other specific identifying information redacted. Because the appellant notify the public both of the order and the government’s application for the order and because appellants have never sought to disclose the victim’s name, we believe that no controversy exists between the parties and that this case is therefore moot and should be dismissed.

We also believe that the controversial issues are not capable of repetition but evading review and therefore that that exception to the mootness doctrine does not apply.

In a recent opinion Justice Stewart stated the standard for mootness which is that for the exception to mootness capable of repetition but evading review, which is that there is a reasonable expectation that the complaining party will be subject to the same action again. Now, that is not the case here.

The possibility that appellant will again be subject to the same action that it is subject to here, depends on future criminal conduct, or allegedly criminal conduct by users of appellant’s message system, and that possibility we would submit is purely speculative.

Second, the action must be by its nature of such limited duration that it would seek to expire before it could be fully litigated and that part is also not met here.

The orders issued under 2705B, the nondisclosure orders, will vary in time depending on the need of the underlying investigation but they are not like orders closing hearings, for example, by their nature of limited duration.

With respect to the merits, the government submits that the order at issue is valid and it is valid because it is substantial and overriding government interest which supports it. The nature of the entity upon which it is imposed and the manner in which that mover received the information which it seeks to disclose in this case.

With respect to the government’s substantial interest, the Electronic Communications Priority Act of 1986, pursuant to which this order was entered, permits courts to issue orders which require electronic communication service providers to produce their subscriber records when those records are material and relevant to an ongoing issue. The statute also permits a court to bar such entities from disclosing the existence of the order, the government’s application for the order and the existence of the investigation, but only when adhered the court finds reason to believe that one of a number of factors exists, that being a disclosure to endanger someone’s safety, result in the destruction of evidence, the intimidation of witnesses, flight from prosecution or other serious jeopardy to an investigation. And in those situations the government clearly has a substantial and overriding interest that the order not be disclosed, indeed the efforts of law enforcement would arguably be frustrated if it could not do so. And the Supreme Court, and this court has recognized in different circumstances the importance of secrecy with respect to ongoing government investigations. For example, in the conduct of jury proceedings — grand jury proceedings. Excuse me. If the target of the proceedings was made aware of them, public notice might allow the suspect to flee, other witnesses might be intimidated if their identities were disclosed and also in search warrant proceedings, which are typically also conducted ex parte and often accompanying affidavits are placed under seal. Public notice might allow suspects to destroy or conceal evidence, so when we have sensitive government activities of the kind we have here in the conduct of a criminal investigation, those activities historically have been inaccessible.

Second, the statute is narrowly tailored because it is narrowly directed to a class of entities, particularly a unique class of entities, electronic communication service providers. Under the Statute 18 US Code 2702A, those entities are already subject to a duty of nondisclosure in their capacity as custodians of and carriers of e-mail messages, so, for example, they’re not able to disclose the contents of those communications for the public, and in that sense, we believe they are similar to phone companies which historically and traditionally by custom and-statute have a unique duty of nondisclosure with respect to the messages that go over their wires, and just as they can’t expose those conversations, appellant can’t expose the contents of e-mails.

And the order issued under this statute simply extends that duty of nondisclosure to reach court orders that seek those with information related to those particular messages. So these unique institutions which are subject to nondisclosure orders with respect to the information they store, an additional order that they not disclose the government’s request for some of that information does not offend the First Amendment.

And I would like to point out that in the context of federal wiretap laws and pen register statutes the government can also seek orders requiring, for example, providers of telephone services to assist the government in installing a wiretap or to install a pen register. In the wiretap context those orders were also sealed and could not be disclosed except for good cause if the court so orders. In the pen register statutes those, both the entities assistance in installing the pen register and the order itself are also placed under seal and cannot be disclosed to the public.

Under the Right to Financial Privacy Act, upon which this statute is actually modeled, banks when they receive orders from the government to disclose information pertaining to the records of their customers. If the similar five factors or one of the five factors that were shown in this case to exist, in those situations, the bank can also — I’m sorry — the bank is also ordered not to disclose to its customers that the government sought that information.

So these types of orders are routinely sought by law enforcement to facilitate their ongoing criminal investigation, and their substantial interest in doing so.

And finally I think it is significant that appellant receive the information which it wishes to disclose in the case only by virtue of a court order, but simultaneously ordered it to disclose the information and not to notify any person of that fact. In that sense, appellant is comparable to a litigant in the civil discovery file, and the Supreme Court has held that when such a litigant receives information pursuant to a court order, it can also be ordered not to disclose that information.

And so the appellant was made aware of the order for the sole purposes of obtaining accounts records, the court had authority to seal that order and ordered appellant not to disclose it, in part to protect the court’s own jurisdiction in front of it, the court had sealed the order and the government’s application for it. We think that this order furthers the government’s interest, it maintains the nonpublic nature of the order and the investigation and that it was narrowly tailored applicable only to an entity subject to the unique duties of nondisclosure as a carrier and custodian messages required to produce that information in that capacity and with no independent interest in the investigation, or the information in its capacity as the carrier or custodian.

If the court has —

JUDGE GARZA:

One question. Are you at liberty to indicate how much longer this investigation will continue?

MS. STRAUBER:

Your Honor, I am. It’s not in the record, but if the court will permit me, I am at liberty to indicate that. The investigation is currently inactive. That is to say, it is not — there is no continuing active investigation. If there was further information, perhaps, that permitted the government to tie UP, that targeted the investigation to these e-mails there might be, but at the moment it is inactive, and in recognition of that, the government has asked and did ask the magistrate judge to unseal a redacted version of the order, which it has done. The government has no objection to unsealing the record below with the exception of the victim’s name and other specific identifying information. It is our policy not to disclose the name of the victim of crimes in all circumstances whether or not those crimes are ever prosecuted.

JUDGE GARZA:

What is the government’s position about the gag order?

MS. STRAUBER:

Does Your Honor mean with respect to, the gag order with respect to the victim’s name, which is all we understand?

JUDGE GARZA:

No. The gag order that the ApolloMedia will not publish or disclose in any way the fact of having been asked to furnish this information and so forth.

MS. STRAUBER:

Well, Your Honor, let me explain that we recently filed with the court a copy of the magistrate judge’s order to unseal a redacted version of both the government’s application for the order and the order, so it’s important to recognize that ApolloMedia is now free to disclose all information that it has from the government about the investigation with the exception of the victim’s name and very specific identifying information, such as the location of the office where she works and the name of that office and the name of the institution. So that is the only issue with respect to which appellant cannot speak.

JUDGE GARZA:

You say this is not an ongoing investigation at this time and I’m assuming that this order has absolutely no limitation as to time?

MS. STRAUBER:

That is correct, Your Honor. With respect to the name of the victim, the order has no limitation as to time. But I would also like to point out that what has happened in this case now is that Appellant has our application for the order, which it did not have before which is the specific information blocked out and it also has the government’s order requesting the information, which, I believe, the only information that is redacted from that is the actual name of the victim.

So Appellant never had the specific identifying information, but it did have the victim’s name and that is correct, that would be, it would never be able to disclose the victim’s name, that’s correct.

JUDGE GARZA:

The only problem I can see is you’re asking for an indefinite period of time in which this, effectively this has been redacted or in its redacted, recently redacted fashion.

MS. STRAUBER:

That’s correct, Your Honor. But we would also note that -to our understanding, Appellant has no interest in and never has had an interest in disclosing that.

JUDGE GARZA:

Doesn’t the statute say, give only a reasonable time limit?

MS. STRAUBER:

Yes, Your Honor, that’s correct. And to the extent that we have now permitted a redacted order to be released. The statute does not address the issue of the victim’s name and we would think that that would be within the inherent authority of the court to protect the information that it has and to protect the name of the victim, if there is a compelling interest on the part of the government, which we think there is, that it do so. But you’re correct, the statute does not address the issue of specific

JUDGE GARZA:

There are a lot of victims out there. And what makes this particular investigation — do you have anything else right now?

MS. STRAUBER:

If there are no more questions, I have none.

JUDGE STEWART:

The information in redacted form, the redaction has occurred as soon as the magistrate’s written order, correct? Let me ask it another way, the question is, you’re asking, the point you’re arguing about is indefinite duration of the redaction of the victim’s name. You argue that matter the government’s policy that the victim’s name not be disclosed the point we sanction the redacted order in its present form, right?

MS. STRAUBER:

Yes, that’s correct.

JUDGE STEWART:

My question is, what cases do you argue in support of the court’s endorsing policies of the government concerning this authority?

MS. STRAUBER:

Your Honor, I don’t have any case authority on point. I would say, though, that I think this court has recognized the inherent authority of a district court to seal its papers that it has published when it decides that it is necessary and I would view the redacted order essentially as maintaining the victim’s name under seal while forbidding appellant to disclose all the other information it needs to do. It just so happened that because this is information that the court has that Appellant is now authorized to disclose, the information that the court keeps under seal is redacted. But I think it effectuates the court’s authority to seal a document.

JUDGE DEMOSS:

Counsel, let me ask you, the last paragraph of the order issued by the magistrate says that ApolloMedia shall not disclose the existence of the United States application. I assume that’s your application for the information?

MS. STRAUBER:

Yes, Your Honor, that’s correct.

JUDGE DEMOSS:

Or this order, this particular order.

MS. STRAUBER:

That’s correct.

JUDGE DEMOSS:

Or the existence of any investigation to the listed subscriber, or lessee, or to any other person until authorized to do so by this court.

Now, is that order still in effect?

MS. STRAUBER:

Your Honor, no. That order is no longer in effect, because the information has specifically now been given to Appellant to release in a redacted form. That is what was accomplished by the magistrate judge’s recent decision to grant our motion to unseal the government’s application for the order and the order itself. So our position would be that that order from which you just read is no longer in effect.

JUDGE DEMOSS:

So this Appellant is no longer under the restriction that it was formerly under not to disclose as a list of things to the subscriber or lessee or to any other person as of then?

MS. STRAUBER:

That is exactly correct, Your Honor. It is only

JUDGE GARZA:

The only thing we are talking about right now is the identification of the victim, any other identification mentioned the institution, I think that was the last things you mentioned.

MS. STRAUBER:

Yes, Your Honor.

JUDGE GARZA:

That we are talking about right now.

MS. STRAUBER:

That is correct.

JUDGE STEWART:

Do we have the most recent order?

JUDGE GARZA:

Yes, everybody should have a copy of it.

MS. STRAUBER:

Yes, I believe you do, but I will be happy to provide a copy.

If there are no further questions. Thank you.

JUDGE GARZA:

Mr. Traynor?

MR. TRAYNOR:

Thank you, Your Honor. In response to the last question, the order has not been vacated as of this moment. The government’s suggestion is a good one, but what happened below is that the order is still in effect but yet the documents have been released. The very gambit that was precluded in the Procter & Gamble case addressing the government points. The statute may be arguably narrowly tailored but the order was not. The unique nature of the ApolloMedia and it’s requirements to keep customers’ files secret or confidential is a bogus argument. That’s a separate issue from the gag order which carries contempt proceedings.

The investigation was the only ground for which the government sought the gag order. It did not deal with endangered life or physical safety of a particular victim. So it’s invoking here a point that it didn’t seek and didn’t really care about in the court below. The unsealing recently occurred, again without notice to us, doesn’t say anything about the briefs and records in this court. We would invite the government to stipulate that all of those are unsealed and open.

The April llth order is, again, insufficient. It’s still redacts key information.

The phone company and other pen register arguments have not been supported by any brief of the government. There’s no particular specific argument based on those cases in the court’s briefs. And just briefly, the search warrants, those require the agent requesting the warrants provide an affidavit or affidavits sworn to before the magistrate. No such affidavit occurred here.

Wiretaps, those require applications to be made in writing under oath, not here. They allow the judge to require additional testimony for documentary evidence in support of the application, not here. Search of financial records relied on by the government, again, the limitation there is 90 days, not an indefinite gag order.

So the statutes that are relied on by the government not briefed by them are not applicable. If the court would like to hear a briefing on these issues we would be glad to provide it.

In short, Your Honor, we have a gag order that’s never been vacated, there’s been substantial harm to the public and the press, to our clients in the ten and a half months delay that occurred in this case and we request this court unseal the record, reverse the gag order, and direct itself that it be vacated as the court did in Procter & Gamble.

Thank you, Your Honor.

JUDGE STEWART:

Thank you, Mr. Traynor.

JUDGE GARZA:

The case is under submission and the court will take it under consideration under the new rule.

Thank you very much.

(Whereupon the proceeding was concluded at this time.)

* * * * *

I, JOSEPH R. KAISER, JR., Certified Court Reporter, State of Louisiana, do hereby certify that the foregoing proceeding was reported by me in shorthand and transcribed under my personal direction and supervision, and is a true and correct transcript, to the best of my ability, hearing and understanding;

That I am not of counsel, not related to counsel or the parties hereto, and not in any way interested in the outcome of this matter, k

Certified Court Reporter

State of Louisiana

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 99-20849

UNITED STATES OF AMERICA

versus

APOLLOMBDIA CORPORATION

Plaintiff-Appellee

Defendant-Appellant

Appeals from the United States District Court

For the Southern District of Texas

No. H-99-M-607-ALL