The US Government Strikes Back

UNITED STATES V. APOLLOMEDIA

A Texas court lifted a year-long gag order from ApolloMedia Corporation, a San Francisco-based multimedia company. Following an opinion to reconsider by the U.S. Court of Appeals for the Fifth Circuit, the District Court lifted the gag order, an action that enables ApolloMedia, the publisher of the annoy.com Web site, to finally discuss its role in the controversial case.

In June 1999, the U.S. government ordered ApolloMedia to disclose the identity of a user of annoy.com's e-greeting card service, a service that facilitates anonymous communications. The information they were seeking followed a similar attempt in April 1999 by the University of Houston, who tried unsuccessfully to obtain ApolloMedia records. Paragraph 7 of the Magistrate's June 16, 1999 Order prohibited ApolloMedia from discussing not only the details of the government's investigation and the content of the order with anyone until authorized by the court, but also the very existence of the order and its application.

"Though we may have been silenced for over a year, what continues to be of utmost importance to us is that we are able to extend the dialog regarding Internet privacy and the freedom to publish information regarding the case," said ApolloMedia's president, Clinton Fein.

The United States v. ApolloMedia case continues to challenge existing notions of on-line privacy and to raise First Amendment issues of free speech on the Internet. All relevant documents and background information regarding United States v. ApolloMedia can be found on the Internet at www.ejournalism.com.

ApolloMedia has been involved in litigation since the inception of their controversial Web site, annoy.com, including a high profile U.S. Supreme Court lawsuit against Attorney General Janet Reno. Although that case challenged a provision of the Communications Decency Act that criminalizes "indecent" Web content, Apollo's latest legal battle has centered more specifically on the issue of individual privacy and freedom of the press.

"The gag order violated the First Amendment ban on prior restraints and the statutory requirement that it have a definite duration. It was not issued upon affidavits establishing probable cause. It did not arise during an investigation of a bomb threat or kidnapping or comparably serious crime," stated Cooley Godward's Michael Traynor, one of the attorneys who represented ApolloMedia in the case. "ApolloMedia's successful challenge in the courts is an important step toward limiting unjustifiably secret investigations of communications over the Internet."

CLINTON FEIN VERSION OF EVENTS

On June 17, 1999, I received an order entered by the Honorable Marcia A. Crone (Under 18 U.S.C. § 2703(D), a Texas magistrate, requiring me to produce records pertaining to the sender of certain email messages from Annoy.com's postcard service within three days, along with an order 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."

Essentially, I was being told to turn over the identity of people for whom, as far as I knew, there was no evidence had committed any crime, who had sent communications using Annoy.com, and who had a reasonable expectation that the government was not scrutinizing their communications. And to shut up about it.

Even creepier was the fact that the "privacy" argument the government used to impose the gag order on me was to protect the alleged victim's identity. However, the victim and any information pertaining to her was under seal, inaccessible to me or anyone else.

Since I was unable to release the identity of the sender with any degree of certainty and was not prepared to release all of ApolloMedia's records, I could not comply, but turning the tables against the United States sought to have the record unsealed to see if I, or Annoy.com, was under investigation, and to remove the overly broad and unconstitutional gag order, which represented an unconstitutional prior restraint.

Before their final defeat in oral argument before the U.S. Court of Appeals for the Fifth Circuit in New Orleans, the government sought to retain the gag insofar as it pertains to releasing the identity of the alleged victim in the criminal investigation that launched the case (which had been declared inactive by that stage). They also sought to prevent me from making mention of the institution - the University of Houston - involved in the unmasking of an anonymous identity and upon whose behest they supposedly were acting. They were unsuccessful. The record was unsealed, and the gag order was removed.

With the help of my attorneys, my hard-fought victory to prevent undue governmental secrecy while protecting and balancing both the public's right to know and an individual's privacy is one of which I am incredibly proud.

SELECT MEDIA COVERAGE

Annoy.com Claims Victory for Free Speech
By Dan Fost
The San Francisco Chronicle
September 13, 2000
A magistrate in Texas issued the gag order, and Fein fought it -- taking his fight first to U.S. District Court and then seeking emergency intervention from U.S. Supreme Court Justice Antonin Scalia, who oversees appeals from Texas. Fein lost at every turn.
But finally, the U.S. Court of Appeals in New Orleans heard oral arguments in May and ordered the district court to have another look at the issue. In oral arguments, the government admitted it was no longer interested in obtaining the name of the offending party. The issue was moot. The gag was lifted and, last week, Fein was given the green light to make all court records public.
There's still one record he won't publicize: the name of the victim. "I respect privacy enormously," he said.
Fein said he brings passion to his free-speech advocacy because of his experience living under South Africa's hated apartheid regime.

Now it can be told: Annoy.com, a San Francisco Web site that tests the limits of the First Amendment, has declared victory in a federal lawsuit.

The case was kept under tight wraps for the past year, as Annoy.com was the subject of an incredibly restrictive gag order.

The Web site, of course, could make any reasonable person want to gag. The main page features ethnic slurs, four-letter words and photos of body parts flashing on the screen. Then you get into the really nasty stuff, including e-postcards about controversial subjects and obnoxious form letters to politicians.

In words posted at the top of the home page: “The intention of this site is to annoy, to disturb or bother in a way that displeases, troubles or irritates.”

The offensive material is Annoy.com’s way of saying freedom of speech protects everything, not just the nice stuff.

It was a vile e-postcard that someone found on Annoy.com’s site and sent to a staffer at the University of Houston that started the current legal mess. Investigators wanted Annoy.com to reveal the identity of the person who sent it; Annoy.com viewed that as an invasion of privacy and said it wouldn’t name names without a court order.

When the mess wound up in court, Annoy.com found itself slapped with the gag order. The free-speech advocate was not allowed to discuss any aspect of the case — or even the existence of the case.

But last week, a federal court in Texas lifted the gag order, and the government revealed it had dropped its investigation. Annoy.com is now free to reveal virtually all the details of the case and to crow about its victory. It wasted no time publishing all the court documents — as well as an essay blasting the government — at a related site, www.ejournalism.com.

Annoy.com is the brainchild of Clinton Fein, a 35-year-old from South Africa who runs a small Web development firm, ApolloMedia. Fein (rhymes with pain) used to work for Orion Pictures before that firm went bankrupt. He went on to establish ApolloMedia, which got its start by making the CD-ROM of the late Chronicle reporter Randy Shilts’ book about gays in the military, “Conduct Unbecoming.”

In that effort, Fein fought the Navy over trademark issues and became something of a free-speech advocate. After Congress passed the controversial Communications Decency Act in 1996, Fein sued Attorney General Janet Reno over the provisions prohibiting communications that are “indecent” with an intent to “annoy.” At the same time, he started Annoy.com.

After a long and complicated court battle, he lost at the U.S. Supreme Court — but he and others consider his cause the true victor. Although he did not succeed in overturning the Communications Decency Act, he did get it re-defined so that offensive and annoying communications remain a form of protected speech online.

While that case was wrapping up, however, the Houston case was starting. Someone used Annoy.com to send an e-mail with a picture that can be described as pornographic, and a message saying, in less-polite terms, “Tell your husband that I want to f– your brains out, you slut, while he watches.”

Authorities, who believed the message was a threat that carried criminal intent, asked Fein for the sender’s identity. Fein’s policy in such situations: “We’re not going to turn over anything unless we’re ordered by a court.” So the U.S. attorney’s office in Houston filed suit. (The attorney handling the case did not return phone calls seeking comment.)

A magistrate in Texas issued the gag order, and Fein fought it — taking his fight first to U.S. District Court and then seeking emergency intervention from U.S. Supreme Court Justice Antonin Scalia, who oversees appeals from Texas. Fein lost at every turn.

But finally, the U.S. Court of Appeals in New Orleans heard oral arguments in May and ordered the district court to have another look at the issue. In oral arguments, the government admitted it was no longer interested in obtaining the name of the offending party. The issue was moot. The gag was lifted and, last week, Fein was given the green light to make all court records public.

There’s still one record he won’t publicize: the name of the victim. “I respect privacy enormously,” he said.

Fein said he brings passion to his free-speech advocacy because of his experience living under South Africa’s hated apartheid regime.

“You could be imprisoned for quoting Nelson Mandela,” he said. “That’s insane.”

He said Americans don’t appreciate the freedoms bestowed under the First Amendment. He sees any threat as “serious and not to be taken for granted.”

Although ApolloMedia has about five employees and swells to 20 when it has a major project, Fein said he has not yet tried to make Annoy.com a commercial venture.

“We haven't found anyone stupid enough to brand their product there,” he said.

When he counts, Annoy.com gets as many as 100,000 users in a day. Someday, he may try to sell ads on the site. After spending what he said was hundreds of thousands of dollars on the site, Fein said, “I'd like to see it generate some revenue.”

Yet it’s not about money for Fein. Instead, he has created a place where provocative opinions actually get discussed.

“It might sound hokey, but it’s unbelievable. You get white racists and homophobic people and black racists who started communicating with each other in a way that allows them to express whatever anger or hatred or fear they have, because it’s not punished,” he said. “Over time, I’ve seen people transformed.”

One white supremacist wrote in, “Thanks for providing a space where over time, I can change my way of thinking,” Fein said. “That’s where my motivation lies. It’s not about being able to piss someone off. Anyone can do that.”

Annoy.com Claims Victory for Free Speech
Written by Dan Fost
The San Francisco Chronicle