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