In re Application of Kim
5:24-mc-80152
| N.D. Cal. | Dec 31, 2024Background
- Ho Chan Kim, a pastor in Korea, filed a 28 U.S.C. § 1782 application seeking a subpoena to Google to uncover the identity of an anonymous YouTube user accused of posting defamatory videos about him.
- Kim alleges the anonymous speaker committed defamation and insult under Korean law, necessitating identification to proceed with a civil case in Korean court.
- Google, headquartered in the Northern District of California, moved to quash the subpoena, contending that the request would unduly burden the anonymous user’s First Amendment rights.
- The Doe user also filed a late motion to quash, arguing their right to free speech and potential for retaliation if unmasked, but did not appear at the hearing.
- The court had previously issued a preliminary order allowing limited subpoena-related procedures but left open the possibility for later motions to quash.
- Judge Cousins found that U.S. First Amendment protections apply to the anonymous user, based on IP addresses showing U.S. access since January 2024.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1782 factors are met | Kim meets all statutory factors | Google does not contest statutory factors | Statutory factors are satisfied |
| Application of First Amendment to Doe | Google did not prove Doe is a U.S. person | Doe accessed from U.S., so protection applies | First Amendment protection applies |
| Whether Kim made a sufficient showing under Highfields | Harm to reputation from defamation | No evidence claims were about Kim; speculation | Kim failed to meet evidentiary threshold |
| Whether subpoena is unduly burdensome | Disclosure necessary for Korean case | Disclosure would chill anonymous speech | Unmasking is unduly burdensome; subpoena quashed |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (discussing §1782 factors and the discretionary nature of discovery for foreign proceedings)
- McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (affirming the right of anonymous speech as part of First Amendment protection)
- Chaplinsky v. New Hampshire, 315 U.S. 568 (recognizing certain categories of speech, like fighting words, are not protected)
- Bridges v. Wixon, 326 U.S. 135 (holding both citizens and lawful aliens within U.S. borders receive First Amendment protection)
- U.S. v. Verdugo-Urquidez, 494 U.S. 259 (discussing the application of constitutional rights to aliens and citizens within U.S. territory)