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Redacted Brief of Plaintiff-Appellee

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

 
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