A random Twitter account tags a Japanese company and badmouths it in a series of tweets. Because the tweets are tagged, a search of the company’s name on Twitter will display the tweets with the negative comments among the search results. Upset over the tweets, the Japanese company wants to sue the tweeter in Japan. But how can it? The tweeter has not used his real name.

This is where discovery under 28 U.S.C. § 1782 can help. Section 1782 provides a vehicle for companies or individuals seeking U.S. discovery in aid of foreign litigation—even if the litigation is merely contemplated and not yet commenced. Specifically, Section 1782 provides that a federal district court may grant an applicant the authority to issue subpoenas in the United States to obtain documents or testimony, including documents or testimony seeking to unmask an anonymous Internet poster to pursue defamation claims abroad.

To pursue Section 1782 discovery, an applicant needs to establish:

  • that the requested discovery is for use in an actual or contemplated proceeding in a foreign or international tribunal;
  • that the applicant is an “interested person” in that proceeding; and
  • that the person from whom the discovery is sought resides or is found in the district of the court where the applicant is making the application.

If the applicant satisfies all of these factors, a district court has the discretion to grant or deny the application after considering the following factors, which the U.S. Supreme Court established in Intel Corp. v. Advanced Micro Devices Inc.:

  • whether the discovery sought is within the foreign tribunal’s jurisdictional reach and, thus, accessible without Section 1782 aid;
  • the nature of the foreign tribunal, the character of the proceedings underway abroad and the receptivity of the foreign government or the court or agency abroad to U.S. federal court judicial assistance;
  • whether the applicant’s request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and
  • whether the request is unduly intrusive or burdensome.

For an applicant to obtain discovery under Section 1782, it does not need to meet all four factors. Also, no one factor is dispositive.

Recently, judges in the U.S. District Court for the Northern District of California—which has jurisdiction over Twitter because that tech company is headquartered in San Francisco—dealt with two cases in which Japanese parties sought to unmask malicious tweeters. The cases are In re Yuichiro Yasuda and In re PGS Home Co. In both cases, Twitter resisted discovery and moved to quash or modify subpoenas, citing, among other things, the First Amendment right to freedom of speech. In both cases, the courts found that the applicants had met the three statutory factors. Thus, the judges had the discretion to allow discovery to proceed. Each case boiled down to an analysis of the fourth Intel factor: whether the discovery requests were unduly intrusive or burdensome. On that question, the judges reached different conclusions.

In both cases, the judges noted U.S. courts’ general recognition of the importance of anonymous speech, noting that “the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without ‘fear of economic or official retaliation . . . [or] concern about social ostracism.’”

Both judges noted that, in the context of Section 1782 discovery requests, courts have held that the First Amendment protects an anonymous speaker from being unmasked unless the applicant:

  • identifies the missing defendant with sufficient specificity such that the court can determine that it is a real person subject to a lawsuit;
  • identifies all previous steps taken to locate and identify the elusive defendant;
  • demonstrates that the action against defendant can withstand a motion to dismiss; and
  • proves that the discovery is likely to lead to the identification of the defendant such that service of process would be possible.

In In re Yuichiro Yasuda, the court found that the applicant satisfied all four requirements for good cause to permit Section 1782 discovery to unmask an anonymous tweeter. The court’s inquiry ended there. The judge denied Twitter’s motion to quash.

However, a month later, in In re PGS Home Co., the court granted Twitter’s motion to quash because it found the applicant’s allegations would not survive a motion to dismiss. The court also found that unmasking the speaker would have a potential chilling effect on First Amendment liberties that would outweigh the harm the applicant would suffer from withholding the requested discovery.

In Yasuda, the anonymous tweeter posted statements claiming a Japanese physician had sexual relations with a female patient who was in high school, which led to the patient’s attempted suicide. This was all tweeted on the page of a well-known radio DJ with over 10,000 followers. Thus, the judge did not have to dig deeply into Japanese law to conclude that, if false, the claim was likely actionable.

In PGS, the anonymous tweeter claimed a Japanese construction company asked to be paid for work it did not perform and treated customers like complainers. Each of these comments came with a hashtag identifying the company. The court did not feel that was enough evidence to conclude the applicant’s claims could survive a motion to dismiss. Oddly, the judge, without explanation, appears to have evaluated whether the claim would survive a motion to dismiss a defamation claim under California law, rather than Japanese law.

Although Twitter raised a potential chilling effect under the First Amendment in both cases, only the PGS court went on to address the issue. To weigh the potential chilling effect, courts in the district apply a two-part test:

  • whether there is a “real evidentiary basis” for believing that the anonymous speaker has engaged in wrongful conduct that caused real harm to the party seeking discovery; and
  • if the threshold requirement outlined above is met, weighing the harm resulting from an order requiring disclosure compared to the harm resulting from an order denying the request.

In PGS, the court concluded that the applicant failed to show a “real evidentiary basis” that the tweets caused real harm. The court found the statements and accusations to be nothing more than a simple “rant” by a dissatisfied customer. The court held that even if the tweets did cause real harm, the harm is outweighed by the First Amendment concerns.

Interestingly, neither court addressed the nationality of the anonymous tweeters. In both of these cases, the statements were made in Japanese and targeted a Japanese individual or company. It seems quite likely that the anonymous posters are Japanese nationals living in Japan. One court has recently held that that the First Amendment protects the anonymous speech of foreign nationals on the basis that free speech protects the audience as well as the speaker, but there is scant case law on this question. Also, that case involved an anonymous Reddit poster who directed his criticism of the Jehovah’s Witnesses to a U.S. audience. Section 1782 applicants may still argue that First Amendment protections for anonymous speech should not apply to an individual who presumably lives in Japan and posted comments in Japanese that are alleged to have defamed a Japanese company under Japanese law. In other words, other than the use of Twitter’s platform, everything else, including the audience, has no connection with the United States.

Because of the high concentration of social media and other Internet companies in the Bay Area, one can assume that these will not be the last cases filed in the Northern District of California using Section 1782 to unmask anonymous Internet posters. We will see how the law develops in this area.