|UNITED STATES DISTRICT COURT|
SOUTHERN DISTRICT OF TEXAS
IN RE THE APPLICATION OF THE UNITED STATES
MAGISTRATE'S NO. H-99-607-M
DECLARATION OF CLINTON FEIN IN SUPPORT
FOR AN ORDER UNDER 18 U.S.C. § 2703(D)
OF APOLLOMEDIA'S MOTION TO STAY
PARAGRAPH 7 OF ORDER OF JUNE 16, 1999
AND MOTION TO UNSEAL THE RECORD
FILED UNDER SEAL
I, Clinton Fein, declare:
- I am the President of ApolloMedia Corporation ("ApolloMedia"), a Delaware corporation based in San Francisco, California.
- In 1994 I co-founded ApolloMedia. ApolloMedia is a multimedia technology company whose business is entirely devoted to computer-mediated communication. ApolloMedia provides consulting services, designs, develops, constructs and implements Internet and database technologies, including sites on the World Wide Web. ApolloMedia licenses customized network solutions for the management and delivery of information using telecommunications. ApolloMedia also writes, develops and produces multimedia content for corporate, educational and entertainment purposes.
- On January 30, 1997, ApolloMedia publicly launched the "annoy.com" web site.
- The annoy.com web site is devoted to free speech and the free exchange of ideas. The web site allows visitors to participate in online discussions on topics of current interest such as gun control, abortion, health care, the military, the environment, censorship, and privacy. Generally, ApolloMedia does not mediate, censor, or filter these discussions in any way. The web site also allows visitors to send anonymous or pseudonymous email postcards, related to the discussion topics, to public figures or to persons of the sender's choice.
- At the same time that it launched the annoy.com web site, ApolloMedia brought an action in the United States District Court for the Northern District of California challenging the constitutionality of the provisions in 47 U.S.C. Sec. 223 making it a federal crime to communicate anything "indecent" on the Internet "with intent to annoy" another person. The Justice Department did not attempt to defend the provisions as written. Instead, Attorney General Reno argued that the statute did not criminalize "indecent" speech at all, only "obscene" material. She represented to the court numerous times that the Justice Department would not and could not prosecute ApolloMedia for communicating merely "indecent" material. She persuaded the three-judge court to adopt her statutory interpretation. ApolloMedia Corp. v. Reno, 19 F.Supp. 2d 1081 (N.D. Cal. 1998). When ApolloMedia appealed to the United States Supreme Court, the Attorney General represented to the Court that ApolloMedia had no "well-founded fear of prosecution." The Supreme Court summarily affirmed on April 19, 1999. 119 S.Ct. 1450 (1999). The United States government sought the Order involved in the instant action a few weeks after the Supreme Court's decision.
- During the course of the lawsuit and since, I have frequently commented on issues surrounding speech and privacy on the Internet. In December 1997, my opinions regarding the future of the Internet were published by The Wall Street Journal, who profiled me in their "Names on the Net" Special Feature. My work addressing policy and legal issues on the Internet is referenced by educational institutions, including Harvard Law School, and is frequently referred to by news organizations, including CNN and the New York Times.
- I am also co-chairman of Public Policy for the San Francisco Partnership's Multimedia Task Force, a private not-for-profit organization set up to encourage investment in San Francisco's Internet and multimedia industry, and serve as a conduit between the city and digital media industry to advise and comment on policy issues that impact consumers and Internet companies.
- As a result of ApolloMedia's content and properties, the annoy.com website, and other activities such as the Service members Legal Defense Network (www.sldn.org), and yet-to-be-released ejournalism.com, ApolloMedia and I, as its President, find ourselves constantly having to engage in legal issues relating to privacy, First Amendment, trademark, libel, defamation and intellectual property law, especially as they pertain to journalism and the shaping of electronic content strategies. My career depends upon my ability to comment upon and shape these issues.
- In late April or early May 1999, I received a telephone call from a man who identified himself as Lieutenant Malcolm Davis of the University of Houston police department. Lieutenant Davis inquired about obtaining records from annoy.com in connection with a criminal investigation at the University of Houston. On June 16, 1999, I received a facsimile letter from Lieutenant Davis informing me that I would receive a federal court order in connection with this investigation.
- On June 17, 1999, I received by Federal Express overnight mail an order entered by the Honorable Marcia A. Crone in In Re The Application Of The United States For An Order Under 18 U.S.C. § 2703(D), Magistrate's No. H-99-607-M. This order required ApolloMedia to produce records pertaining to the sender of certain email messages within three days. ApolloMedia responded and moved to quash the order. ApolloMedia was never served with or allowed to see the Government's application for this order. Attached hereto as Exhibit B is a true and correct copy of the order.
- Paragraph 7 of the Magistrate's June 16, 1999 Order ordered ApolloMedia, its agents, or affiliates 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. I refer to this as the "gag order."
- 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 private 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. Even now, more than three months after issuance of the order, I am unable to speak, comment, or even ask for information regarding the validity of the order. The gag order is damaging to my career, my company, and its and my freedom of expression.
- The United States government has refused to disclose the nature of the present "criminal investigation," in particular whether any communication by or through ApolloMedia is being investigated as a violation of 47 U.S.C. section 223. I do not know what crimes are under investigation or whether the government now contends that ApolloMedia is somehow implicated in some crime. Although the government's secrecy makes me suspicious that it is not honoring the representations it made in the prior litigation that it would not and could not prosecute "indecent" speech, ApolloMedia and I, as its President, am barred by the Magistrate's Order from even revealing the existence of the investigation "to anyone." I am thus prohibited from posting any information about the order on our web site to ask for information about the experiences of other online publishers and sources or to comment about the extraordinary aspects of this entire proceeding.
- As a privacy advocate, I understand the Government's interest in protecting the identity of the alleged victim in this case. I would not have revealed such information because of my own ethical and journalistic standards. My present intention is to maintain such privacy on that voluntary basis. But, still, I am offended by the Government's attempt to compel my silence by Court order.
- Privacy of Internet communications, and the ability of the Government to monitor or control such communications, are issues of substantial public interest. The Government's application for an order in this case exemplifies one method that the Government is apparently using to monitor and control Internet communications. ApolloMedia and I would like to discuss this method publicly, and we would like to use our own experiences with this application and order to demonstrate the limitations of the Government's approach, as well as the potential invasiveness of the approach. We would like to refer specifically to the orders in this proceeding as an example of the dangers from unconstitutional prior restraints and secret government invasions of privacy. Furthermore, the gag order provision itself is especially newsworthy, because it represents a departure from the typical notion that the business of the judiciary in the United States is open to public view and scrutiny. We intend to fully publicize, discuss, and criticize this aspect of the court's order and to take all necessary measures to challenge the validity of the order, hence our filing objections with the magistrate, seeking this stay in the district court, noticing our appeal to the Fifth Circuit, and, if necessary, publishing without any leave of court on the ground that paragraph 7 of the order is transparently invalid. We wish, however, to afford the courts a timely opportunity to undo immediately the unconstitutional prior restraint that was issued in the name of this court.
- ApolloMedia and I suffer continuous harm from the gag order insofar as it prevents us from discussing these issues that are matters of concern to us, visitors to the annoy.com web site, and many members of the general public.
- Finally, on a personal note, it is important for me to state for the record that I was born and raised in South Africa during Apartheid. My desire to be a journalist was thwarted by the repressive censorship, as I lived in a country where one could be imprisoned for quoting Nelson Mandela (who at the time was in prison for revolutionary activities). I underwent the often difficult process of immigration, becoming an American citizen in 1994, partly because of the First Amendment's promise of free speech. Upon being naturalized as an American, I took an oath to protect the principles of the Constitution from enemies foreign and domestic. I am deeply concerned that the Government is using secret invasions of privacy and gag orders that undermine the First Amendment and America's promise of freedom.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Dated: _____________, 1999, San Francisco, California