Id. Courts that have applied the 2TheMart test have concluded that these factors should not be treated as required elements but instead, should be weighed against each other in a more flexible approach. Rich v. Butowsky, No. 20-MC-80081-DMR, 2020 WL 5910069, at *4 (N.D. Cal. Oct. 6, 2020) (citing Sines v. Kessler, No. 18-MC-80080-JCS, 2018 WL 3730434, at *13 (N.D. Cal. Aug. 6, 2018) (stating with respect to the 2The Mart test, “this Court is of the view that, in the absence of binding authority on the subject, the more flexible approach of weighing factors based on the circumstances of a given case is preferable.”).

Anonymous speech “is a developing area where the standards are far from settled.” In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d 875, 882 (N.D. Cal. 2020) (citing In re Anonymous Online Speakers, 661 F.3d 1168, 1175-76 (9th Cir. 2011) (noting courts have “employed a variety of standards to benchmark whether an anonymous speaker's identity should be revealed”)). Thus, for example, where the anonymous speech at issue constitutes copyright infringement or relates to illegal activity, some courts have concluded that a First Amendment analysis can be dispensed with altogether while others have concluded that consideration of First Amendment concerns is still appropriate. See In re DMCA § 512(h) Subpoena to Twitter, Inc., 608 F. Supp. 3d 868, 876 (N.D. Cal. 2022) (conducting First Amendment review as to subpoena seeking identity of Twitter users alleged to have infringed plaintiff's copyright); Art of Living Found. v. Does, No. C10-05022 LHK HRL, 2011 WL 3501830, at *3 (N.D. Cal. Aug. 10, 2011), motion for relief from judgment granted sub nom. Art of Living Found. v. Does 1-10, No. 10-CV-05022-LHK, 2011 WL 5444622 (N.D. Cal. Nov. 9, 2011) (conducting First Amendment review as to subpoena seeking identity of bloggers who were alleged to have infringed the plaintiff's copyright); but see In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d 875, 882 (N.D. Cal. 2020) (finding that magistrate judge erred in conducting First Amendment review as to subpoena seeking identity of anonymous Reddit poster alleged to have violated plaintiff's copyright and finding that “this was not really necessary” because the “doctrine of fair use provides everything needed to balance the competing interests of the First Amendment and the copyright laws.”); Smythe v. Doe, No. CV 15-4801-R, 2015 U.S. Dist. LEXIS 187218, at *3 (C.D. Cal. Nov. 17, 2015) (enforcing subpoena seeking subscriber information to identify individual who posted information about the plaintiff online without conducting First Amendment review on the basis that “[a]n assertion of anonymity for fear of being connected to potentially illegal action is unpersuasive.”).

*5 Likewise, some courts have found that no First Amendment review need be conducted where a subpoena seeks only basic subscriber information about an anonymous Internet speaker and compliance will not reveal any speech on the part of the account holder. See, e.g., Chevron Corp. v. Donziger, No. 12-mc-80237, 2013 U.S. Dist. LEXIS 119622, at *22, 25 (N.D. Cal. Aug. 22, 2013) (holding right to anonymous speech was not implicated by plaintiff's subpoenas that sought “identifying information” of an anonymous email address owner because the “subpoenas d[id] not seek the content of any electronic communication” or information establishing “a link between the Doe movants' identities and particular statements made by them.”).

The Court finds that under the two-step First Amendment test discussed above, Agdal's Subpoena should be enforced. Therefore, the Court need not decide whether Agdal is correct that the Subpoena can be enforced without conducting a First Amendment review. In conducting its review, the Court takes into account the fact that this case does not involve core political speech but instead, speech that appears to infringe Agdal's copyright in the Video and to have been associated with illegal hacking of Agdal's Snapchat account, suggesting the speech at issue is entitled to only minimal First Amendment protection. The Court is also mindful, however, that the individual associated with the @notamod921 account is not a defendant in this case and therefore, the Court takes into account the factors articulated in 2The Mart in applying the two-step First Amendment test.[2]

It is X's policy to give notice to account holders when their identifying information is sought, see Motion at 13 (citing https://help.x.com/en/rulesand-policies/x-law-enforcement-support#20 (last visited August 22, 2024), and it has supplied a declaration establishing that X gave the @notamod921 account holder notice of the subpoena at the email address associated with the account on April 29, 2024. Perla Decl. (dkt. no. 21). The account holder has not opposed the Subpoena.

Next, the Court finds that Agdal has made a prima facie case to support at least two of her claims in the Underlying action – her VAWA claim and her invasion of privacy claim under New Jersey law. Under the VAWA,

15 U.S.C. § 6851(b)(1)(A). An “intimate visual depiction” includes “a visual depiction ... that depicts ... the uncovered genitals, pubic area, anus, or post-pubescent female nipple of an identifiable individual.” 15 U.S.C. § 6851(a)(5)(A)(i). The allegations in Agdal's Second Amended Complaint, which the Court treats as evidence because the complaint is verified under 28 U.S.C. § 1746, see Edwards v. Mora, No. 20-cv-05138, 2022 U.S. Dist. LEXIS 156221, *13 (N.D. Cal. Aug. 30, 2022), are sufficient to make a prima facie showing that Danis posted on his X account a sexually explicit photograph of Agdal depicting “full frontal nudity” without Agdal's consent. Shumofsky Decl., Ex. A (SAC) ¶¶ 29-33. Furthermore, “[t]ransmission of photographs by means of the Internet is tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce.” United States v. Runyan, 290 F.3d 223, 239 (5th Cir. 2002). Thus, the interstate commerce requirement of VAWA is met. And Danis's interrogatory responses in the DNJ Action make clear that he made no effort to determine whether Agdal had consented to disclosure of the explicit photograph, see Shumofsky Decl., Ex. C (Interrogatory responses), Response to Interrogatory 7. This is prima facie evidence that Danis acted with reckless disregard of whether Agdal consent to his posting of the explicit photograph.

*6 The elements of Agdal's invasion of privacy claim, asserted under N.J. Stat. § 2A:58D-1, are similar to those of her VAWA claim. In particular, she must show that Danis: (1) “reproduced” or “disclosed” (2) an image of plaintiff containing “exposed intimate parts”, (3) “knowing that he is not licensed or privileged to do so”, and (4) without consent and “under circumstances in which a reasonable person would not expect to be observed.” See N.J. Stat. § 2A:58D-1(a)-(b); N.J. Stat. § 2C:14-9. Agdal has made a prima facie showing as to these elements for the same reasons she has made a prima facie case as to her VAWA claim, as discussed above.

Finally, the Court notes that the New Jersey Court issued a temporary restraining order against Danis, finding Agdal had established a likelihood of success on the merits for her VAWA and invasion of privacy claims, lending further support to the Court's conclusion that Agdal has met the prima facie case requirement. Shumofsky Decl., Ex. R (TRO).

Next, the Court must weigh Agdal's need for the information sought in the Subpoena against the privacy interest of the account holder in maintaining their anonymity. In light of the evidence in the record indicating that the @notamod921 account holder infringed Agdal's copyright by posting the Video and may even have obtained the Video by hacking Agdal's Snapchat account, their privacy interest is exceedingly limited. See 17 U.S.C. § 201(a) (“Copyright in a work protected under this title vests initially in the author or authors of the work.”). Under similar circumstances, courts have found that the First Amendment does not protect against disclosure of identifying information. See Smythe v. Doe, No. CV 15-4801-R, 2015 U.S. Dist. LEXIS 187218, at *3 (C.D. Cal. Nov. 17, 2015) (finding no First Amendment protection as to identity of online account holder on the basis that “[a]n assertion of anonymity for fear of being connected to potentially illegal action is unpersuasive.”); Uber Techs., Inc. v. Doe, No. 15-cv-00908, 2015 U.S. Dist. LEXIS 54915, at *8-9 (N.D. Cal. April 27, 2015) (observing that while some anonymous-speech cases can directly implicate the First Amendment, at “the opposite end of the spectrum” are cases where the anonymous speaker “breached and stole data from [plaintiff's] secure database,” and such “case (call it one of straightforward hacking and data theft) shares more in common with copyright-infringement suits than with true First Amendment, anonymous-speech cases”); Art of Living Found. v. Does, No. C10-05022, 2011 U.S. Dist. LEXIS 88793, at *8 (N.D. Ca. Aug. 10, 2011) (“Parties may not use the First Amendment to infringe the intellectual property rights of others.”).

On the other side of the equation is Agdal's need for the information sought in the Subpoena. In the DNJ Action, it will be Agdal's burden to show that Danis knew that he was posting offensive or explicit content about her without her consent. Danis contends he did not know that Agdal had not consented to the posting of the Video or the explicit photograph because he was aware of other explicit photographs that Agdal had posted on the Internet herself. See DNJ Action, dkt. no. 61 (Answer to SAC) ¶ 24 (“Defendant did not know and had no reason to know that any specific nude or partially nude picture of Plaintiff was available without her consent” because Agdal has posted other explicit photographs of herself on the Internet). This is a “core” defense to Agdal's claims in the DNJ Action. However, Agdal's efforts to uncover information about how Danis obtained the Video, which could undermine Danis's defense, are hampered by the fact that the phone that Danis used when he posted photographs and videos of Agdal has apparently been damaged such that Danis's text messages from the relevant period cannot be obtained. Thus, information linking Danis to the individual who hacked her Snapchat account and obtained content that Danis later posted may well be critical to Agdal's case and may not be available anywhere else. Under these circumstances, Agdal has a compelling need for the discovery that is sought under the Subpoena. For the same reasons, the Court finds that the Subpoena was issued in good faith. The Court further finds that Agdal's interest outweighs the minimal First Amendment concerns implicated by disclosing the identity of the @notamod921 account holder. Therefore, the equities favor the enforcement of the Subpoena.

IV. CONCLUSION

*7 For the reasons stated above, the Motion is GRANTED. X is ordered to comply with the Subpoena by January 28, 2025. By February 11, 2025, the parties shall file a joint status report re compliance informing the Court whether any disputes remain related to X's compliance with the Subpoena.

IT IS SO ORDERED.