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United States v. ApolloMedia
The United States Response to ApolloMedia's Response and Motion to Quash

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

IN RE THE APPLICATION OF THE

UNITED STATES FOR AN ORDER UNDER 18 U.S.C. 6 2703(d)

MAGISTRATE'S NO: H-99-607-M

Magistrate Judge Marcia A. Crone

FILED UNDER SEAL

UNITED STATES' RESPONSE TO APOLLOMEDIA'S

RESPONSE AND MOTION TO QUASH

The United States responds to Apollo Media's response and motion to quash as follows.

Response to Court Order

1. Apollo Media, doing business as ANNOY.COM (hereafter "Apollo"), was served with a copy of this Court's order to produce certain information concerning an electronic mail (e-mail) message sent via Apollo's Internet facilities. Apollo filed a response (hereafter "Apollo Response") in which Apollo stated that it could not identify the sender of that e mail message. Apollo Response, 3; Apollo stated that it had nothing to produce in response to the Court's Order, and asked that the order be deemed satisfied or, in the alternative, that the Order be quashed. Apollo Response 6 Based on the material in its response and motion to quash, it appears that Apollo does not have any information requested by the Court's order and that Apollo has complied with the Court's Order. The United States accepts the view that Apollo has complied with the Court's Order.

Motion to Quash

2. With regard to Apollo's motion to declare the order unconstitutional, Apollo Response, 7-90 the United States respectfully submits that, since Apollo has complied with the Order by stating that Apollo cannot identify the source of the e-mail message in question, the remainder of Apollo's response and motion is moot.

Constitutionality

3. Paragraph seven of the Court's Order provides that:

Apollo Media 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. This language is taken from 18 U.S.C. 5 2705(b), which provides a mechanism for the United States to request that a party receiving a court order under 19 U.S.C. 6 2703(d) delay notification to the subscriber of the account from which that message was sent. Apollo sets forth several grounds under which it alleges that is U.S.C. SS 2703(d) and 2705(a) are unconstitutional. Since the United States relied on section 270.5 (b), it appears that Apollo has mis-read the order.

4. In paragraph 7 of its Response, Apollo launches a blunderbuss attack on the constitutionality of the Court's order and the underlying statutes. The United States urges the Court to apply the established Fifth Circuit rule that arguments made without either citation to authority or record reference may be considered abandoned. See, e.g., United States v, Ballard, 770 F.2d 287, 295 (5th Cir.), cert. denied, 475 U.S. 1109 (1986) decline to reach the merits of this argument because claims made without citation to authority or references to the record are considered abandoned on appeal.").

5. Apollo's claims of constitutional infirmity are all generalized allegations which do not merit individual response. For example, without citation to authority, Apollo.argues that the three day response time in the Court's order "does not provide adequate notice or opportunity for Respondent to respond" and the Court's order therefore deprives Apollo of "due process". Apollo Response, 7.1. Apollo's argument is negated by the very fact that Apollo did respond to the Court's Order and Apollo did not suffer any demonstrable prejudice in the process.

6. Without citation to authority, Apollo argues that paragraph 7 of the Order is.an unconstitutional prior restraint on free speech. Apollo Response, 7.2. Paragraph 7 of the Court's Order was based on 18 U.S.C. S 2705(b), which provides, in part, that:

A governmental entity acting under section 2703 . . . 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 ouch 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 the order requested if the Court finds that there in reason to believe that notification of the existence of the order will result in endangering the life or physical safety of an individual; destruction of or tampering with evidence; intimidation of potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial. 18 U. S. C. S 2 7 0 5 (b) (1) , (3) , (4) and (5) . The Court obviously agreed with the United States' contentions in the application for this order and found one of these elements present and Apollo fails to allege how the Court erred in so finding.

7. Without citation to authority, Apollo argues that 18 U.S.C. SS 2703(d) and 2705(a)(1)(A) are unconstitutional because they allow a court order affecting Apollo to issue without prior notice and opportunity to be heard before the order issues. Apollo Response, 7.3. The argument is absurd. Federal courts issue ex parte orders in both civil and criminal cases in numerous contexts, including, but limited to, orders to produce tax returns and return information, search warrants, arrest warrants, wire tap authorizations, trap and trace authorizations, pen register authorizations and temporary restraining orders.

8. Apollo's remaining claims are equally without merit and should be rejected, particularly since Apollo complied with the very order of which it endeavors so feebly to protest.

Filed in Houston Texas, on August 13,1999.

Respectfully submitted,

MERVYN M. MOSBACKER

UNITED STATES ATTORNEY

By John Richard Berry

Assistant United States Attorney

Southern District of Texas

910 Travis Street, Suite 1500

P. 0. Box 61129

Houston, Texas 77208-1129

Telephone: (713) 567-9730 -

Facsimile: (713) 718-33O4

 
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