American Courts Enforcing Subpoenas to Identify Defendants in Foreign Court Cases

There's an interesting summary of the issues related to this practice from Magistrate Judge Peter Kang's decision last week in U.S. v. Meta Platforms, Inc. (N.D. Cal.). A South Korean court issued what is essentially an international subpoena ("a Letter of Request under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters requesting international judicial assistance") aimed at getting Meta to disclose the identity of the authors of several pseudonymous Instagram accounts. The request was for a civil insult case being litigated in Korean court. Here's part of the court's analysis:

In its evaluation of the third discretionary factor [for deciding whether Meta should be ordered to turn over in the information], the Court also must consider the extent to which the application conceals an attempt to circumvent any policies of the United States. The Court notes that the instant application seeks to unmask an anonymous online speaker and subject them to legal action for their speech. At least two courts within this District have suggested that such requests may raise First Amendment concerns. See In re Planning & Devel. of Educ., Inc., No. 21-mc-80242-JCS, 2022 WL 228307, at *4 n.3 (N.D. Cal. Jan. 26, 2022) (positing that the third discretionary factor "may [ ] weigh against granting an application that conceals an attempt to contravene the First Amendment's purpose without justification[,]" and noting that "[e]ven where the speakers appear to be foreign citizens outside U.S. territory who do not possess rights under the U.S. Constitution, the principles underlying the First Amendment may counsel a court of the United States against exercising its discretion to aid in punishing speech that would be protected in this country"); In re Tagami, No. 21-mc-80153-JCS, 2021 WL 5322711, at *3 n.1 (N.D. Cal. Nov. 16, 2021) (same).

United States citizens, whether inside or outside of United States territory, possess First Amendment rights. In re Takada, No. 22-mc-80221-VKD, 2023 WL 1442844, at *3 (N.D. Cal. Feb. 1, 2023) (citing Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 570 U.S. 205 (2013)). Foreign citizens who are outside United States territory, by contrast, do not possess any rights under the United States Constitution, including under the First Amendment. Zuru, Inc. v. Glassdoor, Inc., 614 F. Supp. 3d 697, 706 (N.D. Cal. 2022) (quoting Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 140 S. Ct. 2082, 2086 (2020)). The Court finds persuasive several recent opinions issued by courts in this District, concluding that where the record does not indicate that anonymous speakers are entitled to First Amendment protections, U.S. free-speech principles should not factor into a federal district court's evaluation of a § 1782 application. See hey, Inc. v. Twitter, Inc., No. 22-mc-80035-DMR, 2023 WL 3874022, at *7-8 (N.D. Cal. June 6, 2023) (denying a motion to quash a subpoena issued under § 1782 seeking the identity of anonymous speaker, where there was no evidence indicating that the speaker was entitled to First Amendment protections); Takagi v. Twitter, Inc., No. 22-mc-80240-VKD, 2023 WL 1442893, at *4 (N.D. Cal. Feb. 1, 2023) ("Simply assuming First Amendment protection applies, in the absence of any facts or circumstances suggesting that it does, is inconsistent with Intel's caution against evaluating an anticipated foreign proceeding through the lens of the nearest domestic analog.").

The Court is cognizant that the First Amendment is reflective of a general public policy of the United States in favor of freedom of speech worldwide, and given the borderless nature of the Internet, there exists at least the potential that such public policy could be implicated in a case involving online speech.

In this case, however, there is nothing in the present record indicating the unidentified defendant(s) in the underlying Korean civil action are entitled to First Amendment protections. Nor is there evidence suggesting that issuance of the subpoena (and Meta's compliance with the subpoena) would lead to a violation of either U.S. public policy or fundamental human rights. See In re Premises Located at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d 557, 572 (9th Cir. 2011) ("We can conceive of situations in which the Constitution might require the district court to deny a request for assistance. For example, if credible evidence demonstrated that compliance with a subpoena would lead to an egregious violation of human rights, such as torture, then the Constitution may require the courts to deny assistance."). Accordingly, without prejudice to any argument that might be raised in a motion to quash or modify the subpoena, the Court finds that, on the current record, the public policies related to the First Amendment (or any other public policies of the United States) do not warrant denial of the USA's application, particularly in light of the other discretionary factors here.

Here's the factual backstory:

The underlying Korean case … is a civil proceeding in which the plaintiff, Ms. Jongmin Baek, alleges that unknown defendant(s), "by means of his or her Instagram account, insulted the plaintiff publicly." The plaintiff claims "financial damage and mental distress due to the insult of the defendants." From publicly available information and to put the request in context, it appears that the plaintiff in the underlying Korean lawsuit, Ms. Baek, promotes herself as a "fashion influencer" and "designer."

The comments posted by the unknown defendants (pp. 14-18) do appear to be insulting (e.g., "Her appearance has already no goddam class whatsoever, so the prices of clothing are also outrageous. What the fuck, a motherless bitch!"). But I think most or all wouldn't be viewed as defamatory factual statements by American courts, and I doubt they would rise to the level of intentional infliction of emotional distress tort. This is one reason the court's conclusion that the First Amendment doesn't apply to foreigners speaking outside the U.S. (as appears to be the case as a factual matter) is significant.

For a similar case allowing a discovery for a lawsuit within the Hong Kong judicial system, see Magistrate Judge Thomas Hixson's decision in Salarzadeh v. Meta Platforms, Inc. (Nov. 14, 2023), though that case is at least in part a defamation case. The Hong Kong legal system is of course potentially subject to the control of the Chinese government, though I expect that most cases, including most private libel cases aren't likely to actually draw Communist Party attention. (That's a separate matter, of course, from the question raised by subpoenas stemming from cases in other countries.)