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