ISP head, FBI differ on Web site closing ‘order’

Monday, November 29, 1999

(Editor's note: The original posted version of this story included the name of FBI agent Dan Calemina, as reported by the Village Voice. However, Mark Wieger later said that the FBI agent he had spoken with was Joe Metzinger, not Calemina. Metzinger confirmed that on Dec. 1 that he had been working on the case, but that he no longer was. This story has been changed to reflect Metzinger's involvement instead of Calemina's.)

The Federal Bureau of Investigation and the president of a Michigan-based Internet service provider disagreed today on whether he was ordered on Nov. 19 to remove a grainy satirical video from the Internet.

Mark Wieger said his company, BECamation, removed the video after being contacted by Joe Metzinger of the FBI and by an assistant U.S. attorney, both based in Manhattan. Wieger said he was told “litigation is in progress,” and he would lose his company if he did not comply with their order. The two officials “basically lied to us,” Wieger said.

“'If you don't pull it down, we've contacted your provider, and we will make them pull it,' ” Wieger quoted them as saying. Wieger said that he called them back to make certain they really were at federal offices in New York, then took down the site.

An FBI spokesman said today that he couldn't comment specifically on the conversation between Wieger and the agent. But he said Wieger either misunderstood or inaccurately described the exchange as an effort to force him to close the Web site. The U.S. attorney with whom Wieger said he spoke did not return a phone call today.

“I would say that our people would not characterize the conversation that way,” said James Margolin, a special agent with the FBI's New York office. “No specific request was made to discontinue the site or disable the site. The way our people were viewing the shutdown was that the people operating the site did so voluntarily.”

However, the producer of the video, New York performance artist Mike Zieper, said last week that FBI agents visited him at home and left him with the clear impression that the video should be removed.

As it turned out, Wieger said, neither the FBI nor the U.S. attorney's office had obtained a court order, subpoena or other legal basis to make such a demand.

The disputed content was a grainy six-minute satirical video produced by Zieper, also known as Mike Z, and posted on Crowded Theater. Similar to “The Blair Witch Project,” the video consists of video of Times Square while a narrator suggests the possibility federal agents might try to incite a riot on New Year's Eve. The FBI, Wieger said, told him that the video itself might incite a riot and therefore had to go.

“'We think it has racial slurs in it,' ” Wieger quoted the agent as telling him. “'It's our job to make sure this kind of riot incitement doesn't happen.' “

Wieger said he was worried he did not have the resources to try to resist a federal lawsuit, describing his company as a small ISP with little money.

“I drive a six-year-old Ford, not a Lexus,” he said. “I have a 16-year-old multiple-handicapped son. That's the only reason we started this business, to have something to pass on to him.”

After unsuccessful attempts to reach Zieper, the artist, Wieger said, he removed the site and the video. It was only after removing, Wieger said, that he learned from GTE, his service provider, that there was no legal authority for the federal request.

“They didn't have a leg to stand on,” he said of the FBI. “We put the site back up as soon as we found out the FBI had lied to us.”

Margolin of the FBI wouldn't confirm or deny whether the agency had secured a court order, adding that he couldn't comment extensively on a pending inquiry.

But he said that the agency began investigating the site only after the New York office received calls from people who viewed the site and found the content disturbing.

“We initiated an inquiry because it would have been negligent on our part not to,” Margolin said. “Based on the reports we received it was described as something purported to be about paramilitary training and about inciting a race riot on New Year's Eve in Times Square.

“We don't as a matter of course routinely monitor the Web,” Margolin said. “Our interest was not in content per se but whether it was a work of fiction or factual record of some activity that itself might constitute a federal violation.”

Wieger said he called Metzinger and Korologos again seeking clarification, but this time, according to Wieger, they would not talk to him. So he promptly put the site, and the video, back online.

But Wieger said he had lost “over a couple thousand dollars” as a result of the U.S. action, much of it from “hundreds” of irate calls to his 800 number and e-mails to his site from people who read the story on newsgroups or in the Village Voice and blamed BECamation for closing

“Someone even called my cell phone from California,” he said. “That's going to cost me plenty.”

“BECamation supports the First Amendment as well as the rights guaranteed in the constitution,” Wieger said in a statement posted on the BECamation site. “We were lied to and correct information regarding this matter were purposely kept from us to serve the FBI. Now that the situation has been clarified by all parties we are happy to offer the site again on our servers.”

And Zieper even posted a defense of the ISP.

“We do not hold BECamation responsible for what happened in any way,” he said in a statement on the home page. “They support Free Speech online and have graciously put the site back up.”

Phillip Taylor contributed to this story.