[00:00:01] Speaker 02:
I'd like to reserve a few minutes for rebuttal.

[00:00:06] Speaker 02:
May it please the court. My name is Carlos Makoto Taitino. I am the attorney for the appellant Ho Chan Kim.

[00:00:16] Speaker 02:
In this case, the district court made three errors.

[00:00:22] Speaker 02:
The first error was that the district court found that the anonymous speaker, in this case who I will refer to as Doe here and after, was protected by the First Amendment.

[00:00:35] Speaker 02:
And the second error was that the district court found that the fourth intel factor weighs against discovery. And the third error that the district court committed was in finding that the third intel factor weighed against discovery.

[00:00:56] Speaker 02:
The district court made its first error in finding that the First Amendment protects the anonymous individual in this case because there was insufficient evidence in the record.

[00:01:11] Speaker 04:
Mr. Titano, don't we review the district court's findings in this posture for clear error?

[00:01:20] Speaker 02:
Because this was a constitutional issue. whether the First Amendment applies to the anonymous individual Doe in this case is at issue. The Senate review is de novo.

[00:01:33] Speaker 04:
Well, we can take that conclusion, I guess, arguably, we can only take that conclusion given the case law to be predicated on a finding that Doe is at least a legal resident, was a legal resident at the time.

[00:01:50] Speaker 04:
That seems to be what at least that appears one interpretation of what the district court's doing. There may be two inferences that we can draw from it, from the, I think the only evidence before them, the motion of quash from Doe isn't evidence, but we have these IP addresses, which raise two inferences, given that most of the IP addresses put Doe in the U.S. after the speech. Either Doe was a resident resident of the U.S.

[00:02:22] Speaker 04:
who had visited Korea at the time of the speech or was a resident of Korea or someplace else and was only visiting the U.S. at the time of the rest of the review period. But as between those two inferences, it seems to me that the district court had to have made a finding that Doe was a legal resident for the, and so don't we review that for clearer? You speak about that sufficiency, but where would that come from?

[00:02:50] Speaker 02:
My understanding is the standard should be de novo in this case.

[00:02:55] Speaker 04:
Okay. So if it's de novo and we take the district court to have found that Doe was – we had the IP addresses on one side and no evidence on the other.

[00:03:09] Speaker 04:
So if it's de novo, why wouldn't a legal resident at least of the United States set aside the citizenship? Why wouldn't a legal resident of the United States have the benefit of First Amendment protection for this speech?

[00:03:24] Speaker 02:
If Doe was a legal resident at the time that the speech was – or the speech in this case, which is a YouTube video that was uploaded, if he was a U.S. resident at that time and if there was evidence in the record that shows that he was a U.S. resident at that time, then yes, I agree that the First Amendment would protect that speech. But in this case, the only evidence that's – What would be your burden then?

[00:03:51] Speaker 03:
Would you just lose, or do you think you could make a showing to counter, to show that notwithstanding the protection of the First Amendment, you should get discovery here?

[00:04:04] Speaker 02:
Right.

[00:04:06] Speaker 02:
That's a good question.

[00:04:11] Speaker 03:
I'm not 100 percent sure, but it would seem that you need to satisfy the New York Times versus Sullivan. You need to show, you know, that at least some showing that there was actual malice made and that therefore, although he has the protection of the First Amendment within the bounds of First Amendment doctrine, it's not in fact protected.

[00:04:36] Speaker 03:
I think that would be your burden. That's a pretty high one, though. Do you think you have shown that you would meet that?

[00:04:48] Speaker 02:
In this case, though, I think before we go into analyzing whether there was malice or whether there's malice or anything, I think initially the issue was whether there was evidence that this person should have been protected by the First Amendment.

[00:05:09] Speaker 03:
That's the first question. Yes.

[00:05:12] Speaker 02:
Right. And the standard of review for that, Your Honor, is that what's being asked?

[00:05:17] Speaker 03:
Well, that was what Judge Johnstone was asking you. And then secondarily, what's the merits of your argument that he's not entitled, this anonymous person has not been shown to be entitled to First Amendment protection?

[00:05:31] Speaker 02:
Right.

[00:05:34] Speaker 02:
there is no evidence that this person was a resident of the United States. Wait a second.

[00:05:39] Speaker 04:
The only evidence we have are IP addresses that are indisputably those of this person.

[00:05:46] Speaker 04:
And almost all of them put this person in the United States, except at the time that they made their speech. Now, again, that could mean that they were visiting either in the U.S. at the back half of the period or in Korea at the first half of the period. But between those two inferences... I'm not sure that either one is unreasonable or illogical.

[00:06:08] Speaker 02:
The IP log information shows that this person was accessing Google services after January 24, 2024.

[00:06:19] Speaker 02:
the IP log information shows that this person was accessing Google services from Korea before that. So it's – in fact, the evidence does not show – How long before? Help me out here in terms of how long. Google did not – in the evidence that Google submitted, they did not specify how long before that the individual was accessing the Internet from Korea. Okay. But based upon my experience, prior experience, usually Google holds IPL log information for like a year, two years or so.

[00:06:51] Speaker 04:
But that's not in the record. The only thing we have is one blip from Korea at the beginning of the period and then lots of blips afterwards from the U.S. I agree. But I guess as to thinking of doing your next two points on Intel prongs three and four, picking up on Judge Collins' question, Does the kind of secondary Sullivan inquiry into actual malice go to both prongs, or would it go to, right, we've got prong three, I think, is the one that would have us asking whether it's an attempt to circumvent discovery restrictions here, First Amendment being one of them.

[00:07:32] Speaker 04:
And the second one just is an overall question about the burden.

[00:07:35] Speaker 02:
All right. First of all, the malice issue comes into play if the person is a public figure. And in this case, Mr. Kim, I don't think he can be considered—

[00:07:56] Speaker 03:
And the defamation is alleged to tarnish him with respect to his role as a pastor. Pastor puts himself out at least as a limited purpose public figure, right?

[00:08:08] Speaker 02:
Perhaps, yes. The district court never made that finding.

[00:08:13] Speaker 02:
So I didn't really think he... Based upon the facts that are being alleged, I didn't really consider this to be a public figure issue. And the district court never really addressed that issue either. So...

[00:08:26] Speaker 00:
So I have a couple of factual questions for you.

[00:08:29] Speaker 00:
Can you let us know if Doe's identity would be protected under Korean privacy laws? And if so, how?

[00:08:37] Speaker 02:
This is I'm not an expert on Korean law, but based upon my interactions with Korean counsel, I do understand if Doe. was in Korea.

[00:08:47] Speaker 02:
In order to sue Do in Korea, the plaintiff would be able to obtain information from companies like Google in order to do that for purposes of suing Do.

[00:09:03] Speaker 02:
And after the information is disclosed to the plaintiff, the courts or Korean privacy laws prohibit disclosure of that information outside of the proceedings. That's my understanding.

[00:09:17] Speaker 00:
Okay. And then just to circle back to some of the questions my colleagues were asking. So we know that Doe, in our case here, claims to be a U.S. resident and that their video was intended for U.S. audiences. Shouldn't we construe that as evidence, seeing that Doe was in pro se status here?

[00:09:36] Speaker 02:
Your Honor, in my brief, I do explain that it appears that Doe actually, an attorney was actually ghostwriting for Doe. And although Doe might, even if Doe were pro se, it doesn't mean that his arguments in his briefs should be considered evidence. I don't think there's any authority to that. Okay.

[00:09:57] Speaker 03:
All right. We took you over. I will give you two minutes for rebuttal.

[00:10:01] Speaker 02:
Thank you, Your Honor.

[00:10:02] Speaker 03:
All right. Thank you. So we will hear now from Mr. Kennedy.

[00:10:15] Speaker 01:
Thank you, Your Honor. Nick Kennedy for Appalachia Google LLC.

[00:10:20] Speaker 01:
The district court correctly concluded that the First Amendment protects the right to anonymous online speech of a U.S. resident who posted content intended for a U.S. audience?

[00:10:31] Speaker 03:
I mean, that legal proposition isn't disputed. The question is, did Google present enough evidence in support of the motion to quash the subpoena that the target of the subpoena is, in fact, a U.S. citizen or permanent resident?

[00:10:46] Speaker 01:
They did, Your Honor, and these primarily would be the IP logs that were referred to?

[00:10:49] Speaker 03:
The IP logs show that...

[00:10:54] Speaker 03:
this anonymous person exclusively posted from late January until at least July in the United States. Do I have that correct?

[00:11:02] Speaker 01:
That's correct, Your Honor, from January 25th.

[00:11:04] Speaker 03:
But at the relevant time when the video, defamatory videos were posted, the postings were from Korea? Is that correct?

[00:11:15] Speaker 01:
It's unclear where the user was at the time of the original posting, but what is clear from this record is that the user reposted while in the U.S., and that's from Mr. Kim's statement, his declaration himself at SER7.

[00:11:30] Speaker 03:
I don't know that, I mean, that might make that particular post protected, but if you have a Korean citizen in Korea who posts a defamatory thing in Korea in early January, that wouldn't be subject to First Amendment protection. And so the question is, is the mere fact that someone posted for six months in the United States sufficient proof that they were a citizen or a permanent resident? Do you have anything else other than that?

[00:12:00] Speaker 01:
Two things, Your Honor. First of all, that same post, the exact same post that was posted in January, was reposted when the user was in the U.S. So it was the same speech made again. and this is the right to remain anonymous.

[00:12:13] Speaker 04:
Right, but I guess the question is, it seems like you're urging a rule that any time your client comes into one of these discovery disputes with a cache of IP addresses, that that will be enough to establish legal residency for these purposes.

[00:12:35] Speaker 04:
Again, to Judge Collins, if you could answer his question, why is that enough? to support the finding?

[00:12:42] Speaker 01:
Well, first of all, Judge Cousins, the district court concluded it was enough, and that's a factual finding that we shouldn't disturb on appeal. The clear error standard review referenced the IP addresses were not the only evidence in the record. However, Mr. Doe himself, as we know, filed a motion to quash.

[00:12:58] Speaker 04:
That's not evidence in the record.

[00:13:00] Speaker 01:
Your Honor, I believe given the pro se status of this.

[00:13:03] Speaker 03:
So I'm a little unclear. What is his status in this case? Is he a party? Is he just sort of a bystander who threw stuff over the transom? I mean, what is he?

[00:13:16] Speaker 01:
I think Judge Cousins was unclear on that as well. He is a third party who has not been granted the right to intervene, but who did file a motion to quash.

[00:13:23] Speaker 03:
I know, but then if he's not been granted a right to intervene, then... all of his submissions are not properly before the district court and not properly part of the record and not considered, right? Doesn't that have to be the answer?

[00:13:37] Speaker 01:
I don't think that's the answer, Your Honor, given that he's a pro se litigant, Jones v. Blanis.

[00:13:42] Speaker 03:
You can't just have bystanders supply evidence to district courts. You either are a party or you're granted leave as an amicus to show up and present things. It's all or nothing. You're either in or you're out. And if you're out, whatever you show to the court and wave around isn't evidence.

[00:14:04] Speaker 01:
Certainly, Your Honor. I believe he is an interested party given that he was the – they were the target of the subpoena. Regardless, even not considering that evidence, the IP logs and Mr. Kim's own statement that the video was reposted while in the U.S. are enough. And again, we're talking about weighing evidence here. This is the district court that –

[00:14:23] Speaker 03:
The fact that it's posted in Korea and later posted in the U.S., I think just has zero weight in terms of whether the person, the poster, is a Korean citizen or a U.S. citizen. Because people move in and out of the United States, they visit, and they can post any time. I mean, the length of six months of posting in the U.S., that's some evidence of at least some extent. Now, we have lots of people who are here who who are not lawful permanent residents who stay here for more than six months.

[00:14:56] Speaker 03:
So what else do you have other than the six months of posting and other than the reposting? Is there some other thing that you have?

[00:15:07] Speaker 01:
We have the user's own statements, which I understand there's a debate about whether that could be evidence.

[00:15:10] Speaker 03:
The other problem about the user's statements is that if he's admitted – then the magistrate judge's jurisdiction is up in the air because he'd need to consent to the jurisdiction. This is highly unusual to me because At the outset of the case, it was assigned to a magistrate judge. Somebody objected to it. The magistrate judge was ousted, sent to a district judge. The district judge then refers it to the magistrate for recommendation. And then the magistrate, sua sponte, decides, will you consent now to me being the district judge in the case and puts everyone on the spot and everyone agrees?

[00:15:46] Speaker 03:
But Doe can't come in.

[00:15:49] Speaker 03:
If he's allowed in, he must consent if it goes back to the district court. That's correct, right?

[00:15:55] Speaker 01:
I believe that's an issue that Judge Cousins raised at the hearing. I don't know that was addressed in the ruling. Regardless, even leaving Doe out of it, the evidence in the record, as was recognized previously, could support two different inferences. One, Korean resident or Korean citizen. Two, U.S. resident.

[00:16:13] Speaker 03:
But am I right that if we exclude Doe's evidence because of this jurisdictional ambiguity... Is the only thing you have is six months of posting and a repost in the U.S.? That's it? We have no other information?

[00:16:29] Speaker 01:
Correct, Your Honor, and that gets to the inherent limitation in these situations.

[00:16:33] Speaker 03:
But doesn't, I mean, does Google not have in its files more information about who this person is and that it could have offered to cast further light on this issue?

[00:16:47] Speaker 01:
First of all, Your Honor, this whole case is about disclosing the identity of this anonymous individual or not. So there is some limitations on what could have potentially been disclosed.

[00:16:55] Speaker 04:
Well, but I mean even if we just – so Google has agreed that the IP addresses can come out. So your friend had noted that Google probably has more of the IP addresses. It's just decided to disclose in its declaration.

[00:17:09] Speaker 04:
that one point from early January and then a bunch of points from later January to June, does Google have more of an IP address history, for example, that would place Doe in the U.S. before the posting to support the district court's theory that this was a visit to Korea?

[00:17:28] Speaker 01:
Direct answer to your question, I don't know. I think the other answer is not in this record and all we are tasked with is looking at the record.

[00:17:36] Speaker 04:
Did the district court properly apply, and I guess this is a question in terms of what the rule is, but the Thunder Studios rule, there seems to be, there may be a finding that the person is at least a lawful resident in the United States. That's a separate question. But then there's a second step of to whom the speech is directed. Does the district court engage that, and did it have to in order to find First Amendment protection for the intel purposes?

[00:18:06] Speaker 01:
It did not engage that, nor does it have to. That is an independent ground, the intent to reach a U.S. audience. The district court here, again, weighed the evidence, primarily the IP logs, the timing, and reached the conclusion, drew the inference, that this person is at least a U.S. resident.

[00:18:21] Speaker 04:
Okay, and so in order to affirm, do we also, with respect to if Doe were a lawful resident, do we also have to find some sort of, in addition to that, any sort of, continuing presence or do we only would we only have to find that if the person was not a legal resident of the United States you do not need to find a continuing presence you need to find that they were a lawful permanent resident I'm sorry continuing relationship right there's the I think the Verdugo case which which asks that question if even if they're not a resident they must have some connection right your honor and that would be for the exception if if

[00:18:56] Speaker 01:
The district court had concluded that they were a resident who left the U.S. and who was outside of the U.S. You would need to find a substantial voluntary connection. And we believe we have that at a minimum through the six months of IP logs. In addition, through considering the statements in the pro se applicant or the pro se.

[00:19:13] Speaker 03:
What was your burden of proof? What's the standard of your burden of proof with respect to the issue of being a citizen or lawful permanent as a preponderance of the evidence?

[00:19:24] Speaker 01:
It is, Your Honor. And of course, on appeal, it's the clear error standard of review.

[00:19:27] Speaker 03:
And then could you have made a, and this happens in discovery context sometimes and related context, could you have made a proffer under seal an ex parte to the district court with additional information that would cast further light on whether this person is or is not a lawful permanent resident or U.S. citizen?

[00:19:53] Speaker 01:
I don't know what additional information was available in this situation. Google does not verify or even ask for the citizenship of its users.

[00:20:01] Speaker 03:
And in this situation, again – But presumably when you sign up for the account, you supply a name and some other – so you have substantially more information about this person that would cast some light on whether or not someone who was posting for six months in the U.S. is in fact a U.S. resident or a citizen.

[00:20:22] Speaker 01:
Again, I'm not sure what additional information is out there. The question here, however, is not was there better information that the district court could have considered? It was what information did the district court consider, and does that support affirming under the clear error standard of review? We believe it does. In addition, this is a discovery matter. The intel factors are discretionary factors.

[00:20:44] Speaker 00:
Counsel, let me, I apologize, but you're over time and I do want to ask you a question.

[00:20:49] Speaker 00:
The IP addresses on January 3rd, when this posting was issued, where were those coming from? Do we know that? Was that provided? Does Google not have that information? I'm confused because I know from January 25th through July 16th, Doe was in the United States or sending them from the United States. What about on that date?

[00:21:08] Speaker 01:
The specific statement we have in the record says prior to January 25th of 2024, IP logs show access from Korea. There is no evidence as to that specific date, but it is not an unreasonable inference to assume that January 3rd would have been from Korea. And that's at record 116. What page?

[00:21:26] Speaker 03:
116 of the record.

[00:21:27] Speaker 01:
116, okay.

[00:21:33] Speaker 01:
Thank you, Your Honor. We would ask that the district court's ruling be affirmed. It is a discovery matter. It is not abuse of discretion, nor was there clear error in the factual findings underlying the key conclusion of U.S. residency or citizenship.

[00:21:47] Speaker 03:
Okay. All right. Thank you, counsel. We'll hear rebuttal now.

[00:22:00] Speaker 02:
Your Honors, thank you.

[00:22:03] Speaker 02:
I just had two points that I wanted to address. First, Google mentioned that my client, Mr. Kim, stated that the video was reposted in May 2024. That is actually inaccurate. The declaration of Mr. Kim, it says that it just attaches a screenshot that he takes on in May 2024 of the video.

[00:22:32] Speaker 02:
So for the purposes of submitting evidence to the court, he took a screenshot of the video and submitted it. So he never says that the video was actually reposted.

[00:22:44] Speaker 03:
What do you understand to be the status of Doe's submissions? In what capacity were they in front of the court? Because the court seemed to want to have it both ways. It wanted to take the evidence but not let him be a party.

[00:22:58] Speaker 02:
Good question, Your Honor. Actually, during the evidentiary hearing that was held, I raised that question with the magistrate judge.

[00:23:08] Speaker 02:
I asked the magistrate judge. Doe doesn't seem to have consented to the jurisdiction of the court, but the magistrate judge didn't seem to be very concerned about it. I'm not really sure how he came to that conclusion.

[00:23:21] Speaker 03:
But Doe was at that hearing at least telephonically?

[00:23:24] Speaker 02:
He wasn't.

[00:23:24] Speaker 03:
Out of that one?

[00:23:26] Speaker 02:
The judge instructed Google to provide notice to Doe to attend the hearing, but he never attended the hearing.

[00:23:34] Speaker 03:
Did he ever attend any hearing in this case?

[00:23:37] Speaker 02:
No. He submitted his motion to Quash and then he disappeared from the case basically.

[00:23:41] Speaker 04:
But there have been any way for your client to get any – through any procedural mechanism, any additional discovery from Doe?

[00:23:52] Speaker 02:
If that were possible – Or Google for that matter. Right. Right.

[00:23:56] Speaker 02:
Unfortunately, that's not possible, and that's why we're conducting discovery in the district court from Google. There's no other procedural mechanism, either in Korea or I don't know anything else in the United States either.

[00:24:11] Speaker 02:
I'm sorry, just one more thing.

[00:24:13] Speaker 02:
In regard to the voluntary connection issue that was raised, I just wanted to point out that what's necessary is a prior voluntary connection.

[00:24:26] Speaker 02:
and not just any kind of voluntary connection. So there has to be a prior voluntary connection before the person, my understanding is before the act or the speech at issue can be protected. So in this case, there was a speech, and then after that, the DOA entered the United States, so the voluntary connection comes afterwards. So I don't think the speech before that should be protected.

[00:24:53] Speaker 03:
All right. Thank you, counsel. The case just argued will be submitted.

[00:24:58] Speaker 02:
Thank you very much.