The Volokh Conspiracy
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No Pseudonymity or Sealing for Japanese User Seeking to Use American Courts to Subpoena Twitter Critics' Names
"Applicant's warning of a prima facie violation of Japanese law's privacy protections fails to constitute a harm severe enough" to justify pseudonymity.
In Doe v. X Corp., decided Monday by Magistrate Judge Sallie Kim (N.D. Cal.), plaintiff—who operates the account @Midnight_Tokyo, which has >50K followers—had asked an American court for an order that would require Twitter
to identify a wrongdoer operating certain Twitter Accounts '@suan_news' and '@suan_team' … who engaged in privacy invasion under Japanese tort law. The privacy invasion occurred by disclosure of direct messages on Twitter and of the information which could be taken to be Applicant's real name and Applicant's specific attributes such as the Applicant's occupation….
In this case, the wrongdoer, by creating an open chat, encouraged and enticed Twitter users and readers of the articles to identify who is the operator of the Applicant's Account. As a result of the conduct, more than 1000 people joined the open chat eagerly seeking and providing information to identify Applicant as the operator of the Twitter Account.
The goal of the order is to use the defendants' identities in a Japanese court proceeding.
Plaintiff sought to proceed pseudonymously, and with certain identifying documents filed under seal, but the court said no. First, as to sealing:
Courts considering motions to seal recognize a "strong presumption in favor of access [a]s the starting point," applying a "compelling reasons" standard for most motions to seal…. "Under this stringent standard, a court may seal records only when it finds a compelling reason and articulates the factual basis for its ruling, without relying on hypothesis or conjecture," and must then "conscientiously balance the competing interests of the public and the party who seeks to keep certain judicial records secret." Examples of such compelling reasons include "when a court record might be used to gratify private spite or promote public scandal, to circulate libelous statements, or as sources of business information that might harm a litigant's competitive standing."
A party's motion to seal in this district must also comply with Civil Local Rule 79-5, which supplements the "compelling reasons" standard. Under Civil Local Rule 79-5, a party seeking to conceal information by filing it under seal "must explore all reasonable alternatives to filing documents under seal, minimize the number of documents filed under seal, and avoid wherever possible sealing entire documents." The motion to seal must include a specific statement of the applicable legal standard and the reasons for keeping a document under seal, including an explanation of 1) the legitimate private or public interests that warrant sealing; 2) the injury that will result if sealing is denied; and 3) why a less restrictive alternative to sealing is not sufficient. The motion must also include evidentiary support from declarations as necessary, and a proposed order that is narrowly tailored to seal only the sealable material and which lists in table format each document or portion thereof that the party seeks to seal.
Applicant's motion fails to satisfy the compelling reasons standard as supplemented by Civil Local Rule 79-5. As a threshold matter…. Applicant's argument turns on the legitimacy of the interest in preventing a purportedly injurious invasion of privacy that would result from having Applicant's identity associated with a particular Twitter account. Applicant asserts that such an association between Applicant and this Twitter account would amount to an invasion of privacy under the Japanese Constitution and Japanese tort statutes but produces no more specific authority for this proposition. Applicant also provides no specifics about the nature or severity of the injury that will occur if these documents are not sealed, claiming only that "[i]f the Court allows the record to be viewable in public, the disclosed information will be spread widely," which "will cause Applicant further damage," including "secondary damage."
Applicant's motion thus does not articulate any of the reasons that courts in the Ninth Circuit have recognized as compelling in deciding whether to seal documents in the judicial record (much less provide this Court a factual basis for its decision that would not rely on hypothesis or conjecture). The motion does not explain how, for example, the association between Applicant and the aforementioned Twitter account could be used to "gratify private spite or promote public scandal, to circulate libelous statements, or as sources of business information that might harm a litigant's competitive standing."
As to pseudonymity,
Applicant argues that disclosing "Applicant's true name" would constitute a severe "infringement of the Applicant's right to privacy" in large part because of the "high possibility that Applicant's private information such as real name will be promptly expanded on the Internet once Applicant proceeds with the Application under the real name." As a result, "if the public … comes to know the Applicant's real name, the public would almost certainly start to seek and find the Applicant's personal information other than real name," a "further privacy invasion against Applicant" whose "harm would be irreparable."
While a party seeking to proceed under a pseudonym need not necessarily allege a fear of threatened severe physical harm, vague allegations of threats and harassment that fail to cite a specific harm are insufficient …. Applicant's warning of a prima facie violation of Japanese law's privacy protections fails to constitute a harm severe enough to satisfy this factor. Insofar as Applicant appears to fear threats and harassment arising from disclosure of Applicant's identity, "the insinuation is that the harm would be quite severe," but Applicant "never state[s] this explicitly," thus failing to allege a severe harm on these grounds that would satisfy this factor…. Applicant's motion claims that Applicant fears retaliation "if the Applicant's real name is publicly revealed," but does not specify what form that retaliation would take beyond identification of Applicant and Applicant's association with the aforementioned Twitter account….
The third Advanced Textile factor, the anonymous party's vulnerability to retaliation, tends to turn on whether a party's status or the substance of the facts about them in the case at bar would place them in a particularly vulnerable position following disclosure of their identity. See, e.g., Advanced Textile, 214 F.3d at 1072 (nonresident foreign worker); Doe v. Roblox Corp., 602 F.Supp.3d 1243, 1251 n.1 (N.D. Cal. 2022) (minor child); Doe v. Lee, No. C 13-04029, 2014 WL 630936, at *2-3 (N.D. Cal. Feb. 18, 2014) (victim of child sexual abuse); U.S. v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1980) (prisoner serving as government witness). Applicant's argument regarding this factor consists of one sentence: "The Applicant is vulnerable to retaliation." This fails to make the required showing. Applicant gives no reason why their status or the facts about them contained in the case would place Applicant in a particularly vulnerable position were their identity to be attached to this action. Accordingly, this factor is not satisfied….
"When anyone – local or foreign, invokes the potential power and authority of a United States District Court, the public has a legitimate right to know on whose behalf their institutions are being used, unless good cause to do otherwise is shown." Applicant attempts to reverse this burden, arguing that no public interest will be served by revealing Applicant's name in this case because Applicant seeks only to acquire information to be used in a substantive tort proceeding in Japan. But it is Applicant who must show good cause to conceal Applicant's identity and deviate from the default of public access to judicial records identifying litigants.
