Controversial cyber wrecker... What is the U.S. discovery system that can secure evidence collection?

Cyber ​​hackers hidden behind the anonymity of online platforms and reckless violations of personal rights by malicious commenters are exceeding the level of danger. The spread of false facts and defamation indiscriminately inflicted not only on celebrities but also on the general public and companies is causing enormous psychological and material damage, but the reality that it is difficult to identify the perpetrators is causing a deep sense of helplessness in the victims.

Recently, a series of incidents in which the identities of YouTuber 'Pteokga' and the operator of 'Taldeok Camp' were revealed and they were held legally responsible have created an important inflection point in this hopeless situation. The identity of overseas platform users, who were virtually impossible to track through domestic judicial procedures alone, was secured through the U.S. federal court's discovery system. This sent a strong message to the market that you can no longer be safe behind the shield of anonymity.

Until now, when a complaint was filed with a domestic investigative agency to identify a suspect, specific information could only be received when the investigative agency requested international cooperation and the overseas platform arbitrarily determined that a response was necessary. For this reason, due to the nature of the U.S. legal system, which does not consider defamation or insults as crimes when the facts are stated, it was common for the provision of information to be refused or for it to take several years.

In this situation, discovery procedures based on Title 28 of the U.S. Code, Section 1782 (28 U.S.C. §1782) are emerging as a very effective means of collecting evidence for foreign litigants. In fact, according to the industry, the use of this system is increasing, with dozens of related lawsuits already filed this year.

In other words, by using this system, identifiable data such as IP addresses, subscriber information, and access records of anonymous users can be legally secured from companies in the United States that do not have direct enforcement power in foreign court proceedings, and this can serve as a decisive clue to prove the facts in overseas lawsuits.

In this process, not only individuals, but also companies and public institutions are increasingly suffering damage from defamation, damage to credit, and leakage of business secrets. It also has a large social impact, such as damaging the corporate image in real time or reducing the trust of public institutions. Nevertheless, it is difficult to delete content based on overseas servers or verify the identity of the creator through domestic procedures alone, delaying actual damage relief. This reality also shows the need for companies and public institutions to have systematic digital risk management and a response strategy utilizing the global legal system (e.g., U.S. Article 1782, etc.).

So what preparations are needed to effectively respond to online defamation through the discovery system? First, the legal requirements required by Federal Law Article 1782 must be met. When filing an 'application for discovery of evidence for foreign litigation' in a U.S. court, it must be legally explained in detail that ① the subject with the information (platform company) exists within the jurisdiction of the court, ② the applicant is a party with an interest in the lawsuit in a foreign country, and ③ the requested information is absolutely necessary for the damages claim lawsuit to be conducted domestically. In particular, during this process, the U.S. court focuses on reviewing whether the act in question constitutes an illegal act or crime under the laws of Korea, the applicant's country. In other words, the key is to systematically prove the illegal act or crime to the U.S. court using facts, evidence, and related precedents based on Korean law. Ultimately, organic legal and procedural cooperation between Korean and American lawyers is essential for this process.

Next, it is necessary to establish an integrated strategy that considers cost and time efficiency. The evidence discovery procedure has a complex structure that organically connects the Federal Law Section 1782 lawsuit in the United States and the main lawsuit that will be held in Korea after securing identity. In the past, the dual structure of requesting cases to a local U.S. law firm and a domestic law firm, respectively, resulted in costs of hundreds of millions of won and communication inefficiencies, but recently, it has become possible to dramatically reduce costs by carrying out procedures in one stop through a law firm directly managed in the U.S. What is even more encouraging is that the identification of an anonymous user can be processed quickly, taking less than two months, making it possible to provide substantial damage relief.

Now that the online ecosystem has become the center of our lives, protecting yourself from anonymous attacks is no longer a matter of choice but of survival. Although difficult procedures and unpredictable variables still exist, actively using advanced legal means such as the discovery system will be the most reliable strategy to prevent online illegal acts in advance and actively protect one's rights, beyond simple post-event response.
 

Small Business Team

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