[00:00:00] Speaker 02:
And so is there a brief submitted in opposition?

[00:00:04] Speaker 00:
There's not, Your Honor.

[00:00:05] Speaker 00:
This is an ex parte case.

[00:00:07] Speaker 00:
There was a proposed amicus brief that was filed as well as a response, but there is no appellee and no appellee's brief.

[00:00:15] Speaker 03:
Does Dynadot, do they even know that this proceeding is taking place?

[00:00:22] Speaker 00:
To my knowledge, no, Your Honor.

[00:00:23] Speaker 00:
Dynadot, unless they have looked it up, they would not have caused no at this juncture.

[00:00:30] Speaker 03:
Okay.

[00:00:32] Speaker 00:
Okay.

[00:00:33] Speaker 00:
May it please the court, my name is Joe Oliveri on behalf of Appellant Applicant Gregory Kleiner.

[00:00:40] Speaker 00:
Your Honor, this appeal arises from the district court's denial of Mr. Kleiner's application for discovery under 22 USC 1782 in a one paragraph order

[00:00:51] Speaker 00:
without considering any of the applicable statutory elements or discretionary factors.

[00:00:57] Speaker 00:
Instead, the district court denied the application based on potential First Amendment concerns that are not applicable under the facts of this case.

[00:01:05] Speaker 02:
So has Dinah Dot made any objections to the application?

[00:01:10] Speaker 00:
No, Your Honor, they have not.

[00:01:11] Speaker 02:
It's not even been served on Dinah?

[00:01:14] Speaker 00:
It has not even been served yet.

[00:01:15] Speaker 00:
The district court denied this at the ex parte stage.

[00:01:18] Speaker 00:
At this stage, we came into court

[00:01:21] Speaker 00:
made the application.

[00:01:23] Speaker 00:
Generally, what the district court will do, if the statutory factors are satisfied and the discretionary intel factors weigh in favor of granting the application, they will grant the application at which point the subpoena, we will serve the subpoena on Dinadot.

[00:01:38] Speaker 00:
They will inform the relevant parties presuming that they know them.

[00:01:45] Speaker 00:
And they have an opportunity, either those parties or Dynadot, if they wish to, to come in and move to Quash.

[00:01:50] Speaker 00:
So we didn't even make it to that stage, Your Honors.

[00:01:54] Speaker 01:
Pardon me, Mr. Oliver.

[00:01:55] Speaker 01:
I believe that Judge Donato said that he was exercising his discretion.

[00:02:01] Speaker 01:
Do you know what that discretion was or what it was based?

[00:02:08] Speaker 00:
Sure.

[00:02:09] Speaker 00:
In this case, Judge Bea, the district court held or stated that

[00:02:14] Speaker 00:
Denied the application not because of any of the Intel factors But because quote it does not address why disclosure of the publishers identity Could be justified or appropriate in light of their first amendment interests of whose first amendment interest the unknown publisher is what the district judge said so in this case, however, I

[00:02:34] Speaker 00:
In this case, however, the unknown publishers, we have every reason to believe that they are non-U.S.

[00:02:40] Speaker 00:
citizens outside of the United States who did not target a U.S.

[00:02:44] Speaker 00:
audience with their speech.

[00:02:45] Speaker 00:
So under the USAID case, they would have no First Amendment rights.

[00:02:49] Speaker 01:
Well, in view of the long tradition of anonymous writing, starting with the Federalist Society, Federalist Papers,

[00:03:04] Speaker 01:
Doesn't the American public that reads political lore, which is the website, have a right for anonymous speech?

[00:03:18] Speaker 00:
Your honor, this court has held, and this goes directly to the Thunder Studios case,

[00:03:23] Speaker 00:
where in certain instances a U.S.

[00:03:26] Speaker 00:
audience certainly has a right, a First Amendment right to receive information.

[00:03:30] Speaker 00:
But that information or that speech has to be directed to them.

[00:03:34] Speaker 00:
The mere fact that information or speech is on a website on the worldwide web does not mean that it was targeted into the United States.

[00:03:43] Speaker 00:
And this doctrine goes back through substantial Supreme Court precedent back to the 1960s and even earlier in cases like Lamont v. Postmaster where

[00:03:53] Speaker 00:
US citizens were held to have a right to receive communist materials sent from abroad.

[00:03:58] Speaker 00:
Certainly the people abroad didn't have that First Amendment right, but because it was targeted to a United States audience, they were able to have a right to receive that.

[00:04:08] Speaker 01:
Well, can't we take judicial notice that Americans read the website?

[00:04:13] Speaker 00:
Your Honor, Americans may in fact read the website.

[00:04:17] Speaker 00:
But by that logic, every website that is out there on the internet that any American reads

[00:04:23] Speaker 00:
would suddenly be clothed with First Amendment protection.

[00:04:26] Speaker 00:
And this court has specifically recognized that not all material on the internet is solely by virtue of its universal accessibility expressly aimed at every state in which it's received.

[00:04:38] Speaker 01:
So under that precedent here, it would... Well, you say this court has recognized that not all material on the website has this anonymous right.

[00:04:51] Speaker 01:
Can you cite me that case?

[00:04:52] Speaker 00:
It's the Marvix photo of the Brand text case, 647 F3rd, 1218.

[00:04:57] Speaker 00:
That case arose in the context of personal jurisdiction and whether there was targeting at the state.

[00:05:05] Speaker 00:
And the court recognized that just because material is on the internet out there and accessible does not mean that it is directed at the state.

[00:05:14] Speaker 00:
And the same principle applies here where, yes, the information or the defamatory article here

[00:05:21] Speaker 00:
is accessible everywhere worldwide because that's the nature of the internet.

[00:05:26] Speaker 00:
It was not directed into the United States so as to clothe the audience with putative or potential First Amendment rights.

[00:05:35] Speaker 03:
I gather all of these issues could be ferried out

[00:05:41] Speaker 03:
if the subpoena were to issue.

[00:05:42] Speaker 00:
That's absolutely right, Judge Paez.

[00:05:45] Speaker 03:
That subpoena would be served on Dynadot.

[00:05:47] Speaker 03:
Dynadot could file a motion to quash on the basis that this is infringing upon First Amendment rights of the potential author of whoever the author was of the article and the website.

[00:06:00] Speaker 00:
Is that right?

[00:06:00] Speaker 00:
That's absolutely correct, Judge Paez, because that's why these are considered ex-party in the first instance, because that is premised on the fact that any interested party or

[00:06:10] Speaker 00:
subpoena recipient has the opportunity to move to Quash anonymously through council if they prefer and to raise any potentially applicable First Amendment rights or other rights.

[00:06:21] Speaker 03:
What's in the record?

[00:06:24] Speaker 03:
What do you know or what have you learned about the website?

[00:06:27] Speaker 00:
So the website bears all the characteristics of a Russian disinformation website.

[00:06:32] Speaker 00:
The reasons are

[00:06:33] Speaker 00:
almost all the articles Russian-centric.

[00:06:35] Speaker 00:
Poor English, anti-Western rhetoric, the source code for the website links to Russian language social media, and the sample page for the website is all Russian language.

[00:06:44] Speaker 00:
We have every reason to believe that this website, the publishers are outside

[00:06:49] Speaker 00:
of the United States.

[00:06:50] Speaker 00:
But again, as you recognize, they would have an opportunity, if that's not the case, to come in and present any First Amendment rights in a motion to quash, which fits with general privilege law, in that the person asserting a First Amendment privilege bears the burden of demonstrating that it applies.

[00:07:09] Speaker 03:
Let me ask you this.

[00:07:10] Speaker 03:
What case do you think best lays out the position that you take in your brief?

[00:07:16] Speaker 00:
I think there are a number of cases that do exactly that.

[00:07:21] Speaker 03:
At the circuit level.

[00:07:23] Speaker 03:
Not district court.

[00:07:25] Speaker 00:
That's right.

[00:07:25] Speaker 00:
So at the circuit level, in terms of First Amendment rights or potential, I would say, you know, the USAID from the Supreme Court there, in terms of Section 1782 cases, there's not a lot of circuit precedent out there.

[00:07:40] Speaker 00:
Primarily, the overwhelming majority of the cases across the country are in the Northern District of California.

[00:07:46] Speaker 00:
because of the tech sector and all of the places there.

[00:07:50] Speaker 00:
So I think those cases have been pretty uniform in how they've handled this.

[00:07:55] Speaker 00:
And again, we cite a lot of those cases in the brief, the Hay, the Takata, the Takagi cases, and so on and so forth.

[00:08:04] Speaker 00:
And I think, again, it's very important that we not put the cart before the horse here, as respectfully the district court did.

[00:08:13] Speaker 00:
Had it been concerned about potentially applicable First Amendment rights, the proper course was, as courts do, as I did in the Hara case and others, is to grant the application without prejudice to any arguments that may be raised in a motion to quash.

[00:08:28] Speaker 00:
So what we really think the district court did in overstepping here is assume the applicability of the First Amendment privilege and deny the application on that basis alone.

[00:08:41] Speaker 00:
When from all intents and purposes every it doesn't appear that it would apply Remind me the position of the ACLU took in their amicus brief So the ACLU judge Bay has said that in circumstances like this they want to apply the test from a high fields capital management where a party would have to demonstrate a prima facie case on the merits of

[00:09:04] Speaker 00:
by providing a real evidentiary basis for the claim.

[00:09:08] Speaker 00:
No courts have done that in the 1782 context.

[00:09:12] Speaker 00:
The ACLU cited a couple cases.

[00:09:15] Speaker 00:
They contended that did that.

[00:09:17] Speaker 00:
Those cases were all repudiated, and for good reason.

[00:09:20] Speaker 00:
The Supreme Court in the Intel decision interpreting this statute expressly rejected as, quote, fraught with danger the lone dissenter's position

[00:09:29] Speaker 00:
that a 1782 application should be denied if the discovery wouldn't be available under domestic law in analogous circumstances.

[00:09:37] Speaker 01:
The Highsmith test could be applied on a motion to quash.

[00:09:42] Speaker 00:
It could be, Your Honor.

[00:09:44] Speaker 00:
Our position here is that it should not be because it's inconsistent.

[00:09:49] Speaker 00:
Applying that overlay is inconsistent with the Supreme Court's interpretations of 1782 and the very purpose of 1782, which is

[00:09:58] Speaker 00:
encouraging reciprocal assistance from foreign courts and foreign governments and imposing additional hurdles to discovery that are not tethered to the statute or the Supreme Court's interpretation of it would frustrate that policy goal.

[00:10:13] Speaker 00:
The ACLU wanted to use 1782 to pursue a different policy goal, which is promoting speech abroad, and that's a matter for Congress, not the courts.

[00:10:23] Speaker 00:
With that, Your Honors, I see I'm just about out of time.

[00:10:26] Speaker 00:
I would ask that the court reverse the district court's ruling.

[00:10:31] Speaker 00:
And if I may, if it is possible to expedite consideration, we have a case pending, a defamation case pending underlying this in the United Kingdom.

[00:10:40] Speaker 00:
We have a March 31st deadline to serve the putative defendant.

[00:10:45] Speaker 00:
We're moving the English court for an extension of that deadline, but it's not guaranteed.

[00:10:51] Speaker 00:
and the English court is just waiting on the American courts to act.

[00:10:55] Speaker 02:
Thank you, Your Honors.