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Wednesday, September 6, 2000

Houston, We Have a Problem
The Full Story Behind The United States v. ApolloMedia

by Clinton Fein

The case you are about to read about is finally in the open and can be summed up succinctly, despite its many complexities. It involved the competing interests of government secrecy and individual privacy on the one hand and the reporting of public events and First Amendment freedoms from prior restraint on the other. Within that context, and in the responsible exercise of its First Amendment rights, ApolloMedia fought to prevent undue governmental secrecy while protecting both the public's right to know and an individual's privacy.

The facts of United States vs. ApolloMedia a federal lawsuit filed by the United States government under seal present two of the most important issues facing the Internet today -- privacy and the First Amendment.

A Gag is Lifted

For the first time since June 1999, I am able to write about a case that has consumed much of my time for more than a year now. United States v. ApolloMedia, broke new ground in almost every aspect of its development, including the first time a particular statute was used in an attempt to garner private information about the sender of an anonymous online communication. That attempt was coupled with the imposition of a gag order unprecedented in breadth.

In June 1999 the government ordered ApolloMedia to disclose the identity of a user of our site annoy.com's popular electronic greeting card service. The service facilitates anonymous communications. The information they were seeking followed a similar attempt in April 1999 by the University of Houston, which tried unsuccessfully to obtain ApolloMedia records.

The United States and the University of Houston characterized this particular electronic greeting card as threatening. However, without any context, and if one is to look at the visual and textual content of this card on its face, it may perhaps be offensive, perhaps lacking in taste, insulting even, but would unlikely really be considered a threat. (And certainly not worthy of a potentially massive privacy violation.)

At the same time the court slapped a gag order on ApolloMedia. We were ordered to refrain from discussing not only the content of the order with anyone until authorized by the court, but the very existence of the order and its application. The unprecedented blanket gag order was unlimited in time and scope. Payback for our own Supreme Court lawsuit against the United States, ApolloMedia v. Reno? Paranoia, say some. Naïveté not to think it, say others.

Houston, We Have A Problem

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 local entity.

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. More than a year after issuance of the order, I was unable to speak, comment, or even ask for information regarding the validity of the order, let alone the other extraordinary aspects of this case.

ApolloMedia filed a response and motion to quash the order asserting an unconstitutional prior restraint on speech. Both a Texas magistrate court and District Court refused to lift the gag. Following a series of secret proceedings, secret briefs and last minute and cunning maneuvers by the government, ApolloMedia appealed to the Fifth Circuit Court of Appeals who in February 2000 agreed to hear oral argument, which it finally heard in May 2000.. During that time, ApolloMedia attempted to solicit the intervention of Supreme Court Justice Antonin Scalia by filing a motion to stay the Order. Scalia saw fit to uphold the seal and the gag order. The government engaged the Solicitor General's office to handle the oral argument, which usually only involves itself in cases of high importance. 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. It lasted for over a year even though the government was no longer pursuing any investigation.

In a six-page opinion the Fifth Circuit remanded the case back to the District Court to determine whether the gag order on ApolloMedia was still valid given the constitutional precariousness of the order's indefinite duration. Weeks later, the entire record, including the government's application and the entire subsequent proceedings that consumed us over the last year, was unsealed and the gag order was lifted unequivocally by the District Court, without any of the exceptions the government had sought in a last ditch effort before the Fifth Circuit. Finally, last week, the Fifth Circuit agreed to unseal the records under their jurisdiction, including a transcript of the oral argument, at last freeing ApolloMedia to speak unimpeded.

There were some interesting anecdotes. The case emanated from Houston, Texas. "Houston, we have a problem," was suddenly a reality, albeit an understatement. Friends and clients usually and affectionately refer to our company as Apollo. So does the United States on record. Our decision to challenge the subpoena and its attendant gag order could euphemistically be echoed by the famous distress call to Ground Control in Houston by the troubled space shuttle Apollo 13.

Kafka in Wonderland

The government's conduct in this case was extremely disturbing. The irregular maneuvers by government attorneys are enough to make every American who believes that the public's right to know is a guaranteed constitutional privilege think twice.

The government filed two briefs - an unredacted version with the court and a redacted version with ApolloMedia - that left us with no way of knowing what in fact had been said. The government attempted to force ApolloMedia to formulate a complete response to their arguments without even seeing the brief that had been presented to the Court. ApolloMedia had presented our arguments to the lower court while wearing not only a gag, but a blindfold too, as we were denied access to portions of the underlying record. Mistrust for such secret proceedings, hearkening back to the excesses of the English Star Chamber, lies at the heart of the Anglo-American system of jurisprudence.

In light of the government's misstatements and irregular procedures ApolloMedia was forced to request that the hearing in the Fifth Circuit be open and that ApolloMedia be permitted to bring our own reporter to record the proceedings. Although we insisted on an open public hearing in the Fifth Circuit, we did not know until the morning of the hearing that the court had made the obviously right decision to hold the hearing public. Even here, what should have been a clear and advance opportunity for the press to attend an important hearing was foreclosed by government maneuvering and by indecision until the last minute.

The government managed to get a federal court to issue this order without any affidavits of facts and based only on the conclusions of a government attorney. That is as much a threat to freedom as a First Amendment threat of a gag order is, and is contrary to the practice regarding search warrants. When the government tried to refer to other statutes authorizing investigations, we rebutted this in oral argument by contrasting the prerequisites in these other statutes with the dangerously loose ones in this statute, as applied by the government.

It Was Only Politics

Then there were the politics of privacy and the Internet that interestingly relates to the upcoming Presidential election. Privacy is a front page issue that has provoked the attention of the candidates for President of the United States, one of whom is a member of the Administration that sought and defended the order and gag order, the other is from the very state and city where federal and local officials joined efforts to deploy federal investigative resources regarding an unpleasant communication aimed at a local person.

Americans have a right to ask how appropriate it is for the government to file secret proceedings in the manner we've seen in this case. Where do the candidates stand on privacy, and is such privacy to be gained at the expense of the First Amendment? Can the government truly expect industry to work in conjunction with them to innovate technological solutions to counter crime on the Internet with this kind of mistrust and disregard for constitutional principles? If the candidates are going to raise Privacy or the Internet as a campaign issue, the questions posed by this case are questions the candidates should be answering or at least weighing in on.

Double Standards

Against this backdrop, the United States had the audacity to argue that ApolloMedia abandoned its constitutional challenge to the Magistrate's Order because ApolloMedia's original motion allegedly failed to cite any authority and failed to make reference to the record to support its constitutional challenge, even though we did. The Magistrate's Order gave us just three days from time of service of the Order to respond. Relying on the constitution, our motion to quash raised a number of serious constitutional infirmities to the Order and to the statute, 18 U.S.C. 2705(b) as applied. Under these extreme constraints it was entirely reasonable for us to raise some of its constitutional challenges without full-blown briefing.

The United States then argued that ApolloMedia should not be considered as a representative of the press attempting to exercise its First Amendment rights, but as a "participant in the investigatory process because ApolloMedia's web site apparently was used as the mechanism to deliver a threat." The United States cited no authority for its position, but distinguished the New York Times v. The United States and Landmark Communications, Inc. v. Virginia cases on the grounds that these cases involved representatives of the press who were "strangers to the inquiry." The United States argued that "[i]t is not a prior restraint to prevent Apollo from disclosing what the United States communicated to Apollo during the course of, and in relation to, this criminal investigation." Again, the United States did not see fit to cite any authority in support of its position.

Dirty Tricks

The United States argued that it is reasonable to keep the record under seal and analogized the situation to "keeping telephone wiretaps, telephone trap and trace devices, search warrants, arrest warrants, mail covers and other investigative techniques 'under seal' until such time as the investigation has concluded." Again, without citing any authority in support of its position, the government underscores how important the issues raised by this case are.

Attempting to trivialize ApolloMedia's strenuous First Amendment objections, the government, on record, erroneously stated 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. They did not. ApolloMedia was forced to file a motion to augment the record and to clarify it by correcting misstatements that the Government made in its Response. Again, this sort of cavalier disregard for constitutional principles and the rule of law by the United States leaves little impetus for the private sector and high tech industry to step in and "work together." It was for this type of conduct that the President was almost impeached.

In August, 1999 in a Report from the Attorney General to the Vice President Al Gore entitled "Cyberstalking: A New Challenge for Law Enforcement and Industry" Janet Reno states:

"Both industry and law enforcement benefit when crime over the Internet is reduced. In particular, the Internet industry benefits significantly whenever citizen and consumer confidence and trust in the Internet is increased. Accordingly, both industry and law enforcement recognize the need to cooperate more fully with one another in this area."

Reno then goes on to define the term 'telecommunications device', which excludes 'interactive computer services':

"The intent of the exclusion is to insulate the service provider from liability, but not to insulate an individual user from liability for his or her criminal behavior. Accordingly, the Department of Justice has taken the position and successfully argued that a modem was a telecommunications device within the meaning of the statute."

The case she cites: ApolloMedia v. Reno.

It's kind of difficult to "cooperate more fully with one another" when as a player in her own report, simply mentioning anything that would contribute to the dialog would violate a federal court order.

Free Speech for the Elite?

The rejection of our First Amendment claim by the Magistrate Court, District Court and Justice Scalia proved to be the most frustrating and chilling of speech restrictions I have ever encountered since living in South Africa under Apartheid's powerful censorship laws.

I have watched and witnessed in silence, the formulation of policies, reviews of Department of Justice's approaches to privacy by congressional committees, and a host of discussions in the media and elsewhere that could have been well served to incorporate an understanding of 18 U.S.C. 2705(b), the statute under which the gag order was issued, and the extent to which that statute's application can threaten privacy, freedom and commerce.

This gag order has been nothing short of a grievous travesty of justice. The most intolerable prohibition of speech imaginable. The burden imposed by a court order under the authority of a little known statute directed toward Internet Service Providers was and is a subject of crucial importance to the public interest. The fact that the government has the ability to search for personal Internet records on a minimal factual showing is a situation that needs to be addressed and incorporated into much of the policy making that is happening in the arena of privacy. This is a subject that should be closely scrutinized by the media covering these issues.

The gag order precluded me from soliciting the input of other Internet companies or institutions that could have been helpful in offering advice, sharing similar experiences or even filing an amicus brief on our behalf. Instead, I found myself increasingly afraid to speak on the subject of privacy in general - aware that the court proceedings and my knowledge of the facts of case would inadvertently slip out somehow and I would be guilty of violating the gag order - committing a speech crime.

Our victory did not come without tireless and passionate work. No less than three law firms, and the skills of five attorneys represented ApolloMedia. Cooley Godward LLP, the firm that represents ApolloMedia including our Supreme Court Case ApolloMedia vs. Reno, included Michael Traynor, Lori Ploeger and Timothy Nardell. William Bennett Turner of Rogers, Joseph, O'Donnell and Quinn, who also represented ApolloMedia in ApolloMedia vs. Reno, and Mark Wawro of Susman Godfrey LLP in Texas. ApolloMedia, and indeed all Americans, owe them a huge debt of gratitude.

Identity Remains Private

Before their final defeat, 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 (and has since been declared inactive.) They also sought to prevent us from making mention of the institution - the University of Houston - involved in the unmasking of an anonymous identity and upon whose behest they were acting.

We said then, as we do now, that we would use our own journalistic integrity and moral judgment to make such a determination rather than be compelled to do so by an order of the court. And today, we continue to choose to refrain from publishing the name of the alleged victim, despite having fought and won the right to do so.

ApolloMedia's hard fought victory to prevent undue governmental secrecy while protecting both the public's right to know and an individual's privacy is one of which we are extremely proud. With the exception of the name of the alleged victim, the documents are available for public review, as we have insisted they be all along. The choices we make, as publishers, remain our choices to make. The challenges the Internet presents law enforcement must weigh in the constitutional imperatives of freedom of the press. We ensured this, for now. And at the same time we maintain our public position, posted quite clearly on our site, that we will not tolerate misuse of our service - by anyone, ever.


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