Apgood Fights the Gov't on CanSpam

[Zakarian]

From "Q" at YNOT: (full story at YNOT)

Friday, July 07, 2006

Attorney Rob Apgood: Manning the Trenches ? On Our Side ? In the Government?s War on the Porn Industry
by Q. Boyer

SEATTLE, WA ? Rob Apgood isn?t the best-known attorney to handle adult entertainment industry clients, a fact that suits the always versatile, occasionally volatile, Seattle-based litigator just fine.

?I?m not in the business of public speaking or the business of self-promotion,? Apgood says between drags on his seemingly ever-present cigarette. ?I?m in the business of doing that which is in the best interest of my clients.?

Apgood could accurately be described as a ?maverick attorney,? in that it is not at all uncommon for his opinions and interpretations to be at odds with other attorneys, including his peers representing the adult industry.

It?s not so much a matter of opposing interpretations ? although Apgood frequently disagrees with other adult industry attorneys? interpretations of legal language, as well ? as it is a difference in perspective, according to Apgood.

?You get a different view of things when you?re ?in the trenches,?? he says, in reference to his busy calendar of court appearances, depositions, and other aspects of his daily grind. ?You tend to focus less on the hypothetical legal problems and more on the fronts that are actually being pursued.?

Apgood is also not one to be impressed by the opposing counsel?s pedigree.

?Once you?re in the courtroom, your resume means precisely shit to the sitting judge, generally,? Apgood says. ?The key to being a good attorney isn?t just about being well-trained as a lawyer. The real key is having years of experience in lots of different facets of life and business.?

Software Entrepreneur Turned Lawyer ? Apgood?s Well-Rounded Roots

Apgood did not start his professional life as a lawyer, rather, cutting his teeth in tech-related fields that have served him very well in his subsequent time as an attorney.

Entering Adult at the Speed of Light ? Apgood?s Introduction to the Industry

A fortuitous pairing brought Apgood to the adult entertainment industry, when a young entrepreneur by the name of Steve employed Apgood to incorporate his software business. The young entrepreneur subsequently approached Apgood about his ?hobby?, which was shooting softcore nude photos, which he was now planning to distribute online.

>>>>>>>>

Threats to the Industry - The (Overreaching) Long Arm of the Law

?The biggest threat to the adult industry,? says Apgood, ?is flagrant overreaching on the part of the government, not only at the federal level, but the state level as well, wherein the government is reading into statutes a scope of liability that doesn?t exist.?

>>>>>>

When most people think of overreaching legislation directed at the adult industry, Apgood notes, they think of 2257 regulations or obscenity prosecutions. As Apgood points out, though, nobody in the industry has ever been subjected to a 2257 records inspection and obscenity prosecutions, while certainly more common than they were in the 1990?s, are still relatively few and far between.

?The government overreaching has most recently and most ?impressively? manifested itself in CAN-SPAM,? says Apgood, adding that he was dismayed to see a number of companies ?cave without a fight? when charged by the FTC with CAN-SPAM violations.

?Any attorney worth his salt, and who does even a basic statutory construction analysis, would come to the same conclusion we did about CAN-SPAM,? Apgood asserts in reference to how the government is seeking to apply the law, ?which is that this dog won?t hunt.?

?Piranha Laws? ? Nibbling at Your Business ?Til Nothing Is Left

Another threat to the adult industry is in the application of what Apgood calls ?piranha laws,? because they are ?little laws with big teeth.? Again, these are not ?big ticket? items, like federal obscenity prosecutions, but rather easier-to-prove forms of violations that Apgood says adult companies and adult webmasters alike need to be more cognizant of.

The ?new law? claim is not bravado on Apgood?s part. In the last several years, he has been ? quietly ? at the center of a number of complex and highly significant cases, even if they weren?t cases that grabbed headlines, or created much ?buzz? outside of legal circles.

Take, for instance, United States v. Gorshkov, a 2001 case in which Apgood was co-counsel for Vasily Gorshkov, a Russian citizen accused of a variety of computer crimes, conspiracy, and fraud against Speakeasy Network of Seattle and PayPal, among others.

In the course of their investigation, the FBI lured Gorshkov and fellow Russian citizen Alexey Ivanov into coming to the U.S. by creating a fake computer security startup company named ?Invita? in Seattle, WA. According to a U.S. Dept of Justice press release issued in October of 2002, FBI agents posing as employees of Invita communicated with Gorshkov and Ivanov during the summer and fall of 2000 and arranged a face-to-face meeting in Seattle.

Apgood?s defense team challenged the search on 4th Amendment grounds and although the Court ultimately rejected the constitutional argument, the case set precedent in wiretap law and Gorshkov received a sentence of only 36 months out of a possible 100+ years.

?I really skewered one of the FBI agents on cross [examination],? Apgood says, with obvious relish.

It seems that in the course of the investigation, some of what the FBI agent in question did was in violation of Russian law. The Russian Federal Security Service charged the FBI agent with essentially the same crime that Gorshkov and Ivanov faced in the US ? gaining access to computers without authorization or permission to do so, in effect ?hacking? into Russian computers in violation of Russian law.

On at least two occasions, Russian authorities have asked the US Department of Justice to extradite the FBI agent for prosecution in Russia; the DOJ reportedly never replied to either request.

?I offered to pay for [the FBI agent] to take a vacation to Russia,? quips Apgood, ?but my offer was declined.?

Apgood was also involved in a precedent setting case that limited the scope of liability imposed by the Wiretap Act. Located in the 11th Circuit, the case of DirecTV, Inc. v. Treworgy, settled a highly controversial and often misinterpreted provision of the Act that many courts had misconstrued to impose civil liability on people who simply had purchased a device that could be used to illegally intercept satellite broadcasting.

?The courts throughout the U.S. were all over the map on whether the liability existed, primarily because the law was so poorly written,? observes Apgood. ?We finally said, ?enough? and pressed the issue at the appellate level. Fortunately, we got a great panel that ruled unanimously in our favor.?

?Relying on our strict, statutory construction arguments,? Apgood proudly follows, ?other federal district and appellate courts are now following that decision without equivocation.?

The Stored Communication Act ? Good News for the Industry

In another recent case before the 11th Circuit, Apgood was co-counsel for appellant Michael Snow in the case Snow v. DirecTV Inc., a case which resulted in precedent that could prove very favorable to the adult industry.

In his appeal, Snow alleges that DirecTV violated section 18 U.S.C. § 2701 of the Stored Communications Act (SCA) by accessing the contents of his web site without his authorization, based on textual admonitions published on his site specifying that DirecTV representatives were not authorized to enter.

As the Electronic Communications Privacy Act (ECPA), of which the SCA is part, forbids SCA claims based on access to electronic communications that are readily accessible to the public and any internet user could visit Snow?s site and register to use its bulletin board, the Court found that the communications on Snow?s site were not subject to SCA protections.

Apgood refers to the case as one that he ?won by losing.? Although the 11th Circuit ruled against his client, he says the court ?gave us a roadmap to follow on re-filing the case.?

?The impact of the ruling is that it set a precedent which holds that agents of the government and/or law enforcement can?t violate a website?s terms of service in order access communications with intention of using it for purposes of law enforcement,? Apgood explains. ?This includes communications covered by the First Amendment.?

The ruling has great potential significance for the adult industry, Apgood says, because ?because much of the adult industry?s online content is arguably covered under the Stored Communication Act.?

?Due to this ruling, it is now arguable that law enforcement cannot join adult sites as a ?member? in order to obtain evidence for, say, an obscenity prosecution,? provided that the adult site in question utilizes terms and conditions that would invoke the protections of the Stored Communication Act.

?This is an evidentiary rule, which means it applies equally to criminal and civil cases,? Apgood notes.


The Bottom Line: Dot Your I?s, Cross Your T?s ? and Lace Up Your Gloves

In Apgood?s opinion, the industry is facing the wrong direction in meeting the threats to its existence, and needs to get turned around, pronto.

?People are focusing on obscenity and that other big non-event, 2257,? Apgood says. ?That?s not to say that what the FSC [Free Speech Coaltion] has done and is doing is ?nothing? ? they?re doing great work ? but that what the government is doing with 2257 is nothing, just as they have always done nothing with it.?

The real dangers, according to Apgood, lay in those piranha laws, and in other approaches that the government can take to suppress speech that they cannot restrict more directly due to the protections afforded by the First Amendment.

[Dion]

"good luck" lol

[woj]

too much to read, but...

congrats to all the winners