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).
