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The U.S. government has won the first round in a bid to force Glassdoor Inc., an online job review website, to unmask individuals who posted anonymous online reviews.
The court battle pits a company’s business model of allowing individuals to post incognito reviews against a government grand jury subpoena seeking to uncloak the identities of the posters.
Online forum Glassdoor allows people to post anonymous reviews of their former employers. It’s not unlike popular social media forums, such as Yelp Inc., on which consumers can complain or rave incognito about a host of companies, including restaurants, doctors, or plumbers.
A U.S. District Court for the District of Arizona opinion, unsealed June 16 and dated June 7, denied Glassdoor’s motion to quash a grand jury subpoena related to a criminal fraud investigation of a third party company, seeking internet protocol (IP) addresses, usernames, email addresses, resumes, personal contact information, credit card information, billing addresses, payment history, and other available user information ( In re Grand Jury Subpoena Issues to Glassdoor, Inc. , D. Ariz., No. 17-mc-00036, motion to quash denied 6/7/17 ).
The government said it pared down its subpoena request and is seeking the identities of eight incognito Glassdoor users who may be witnesses in the investigation. Glassdoor itself isn’t being investigated, but the information is needed because the users can “offer common employee insights” into the company under investigation and are “third party witnesses to potential unlawful conduct,” the government said in a court filing.
Glassdoor, a Mill Valley, Calif.-based private company, recently appealed the denial of the motion to quash to the U.S. Court of Appeals for the Ninth Circuit to stop the government effort to unmask the anonymous users. The appeal filings are sealed, and it is not known when they will become publicly available or when a final decision will be reached.
Glassdoor’s underlying argument in the case rests on the idea that “its users have a First Amendment right to speak anonymously,” the opinion said. The company is working with other organizations and businesses that are filing friend-of-the-court briefs in support of “First Amendment rights and protections as well as personal privacy,” Brad Serwin, Glassdoor’s general counsel, said in a June 16 blog post.
Nonprofit technology and media advocates, TechFreedom and Media Alliance, have recently released statements supporting Glassdoor. The right of consumers to post anonymously online is an important privacy protection, and the lower court’s decision may have a chilling effect on users’ confidence in using large social networks, such as Glassdoor and Facebook Inc., the advocates said.
The Department of Justice didn’t immediately respond to Bloomberg BNA’s email request for comments.
To reveal the identity of the anonymous users, Glassdoor contends, the government must prove that it has a compelling interest in obtaining the users’ identities, and that there “is a clear nexus between those person’s identities and the grand jury’s investigation,” the opinion said. Further, Glassdoor said that the court should apply a “compelling/substantial connection test” from Bursey v. United States, a 1972 Ninth Circuit decision.
The government, on the other hand, argued that the test in Branzburg v. Hayes—in which the Supreme Court held in 1972 that requiring a reporter to testify before a grand jury didn’t violate free speech or free press guarantees under the First Amendment—would be binding. Applying the facts to the case, the test says that Glassdoor must comply with the subpoena request “unless it can demonstrate that the government acted in bad faith,” the denial of the motion to quash said.
Judge Diane J. Humetewa of the U.S. District Court for the District of Arizona wasn’t persuaded by Glassdoor’s arguments. She said the Bursey test generally protects “the right to associate with a political group and anonymously print and distribute critiques of the government.” Since Glassdoor users aren’t “a political association, nor are they engaged in activity similar to Bursey,” the test doesn’t apply, she said.
To quash the subpoena, and keep identities related to a criminal investigation secret, Glassdoor would have to prove the government acted in bad faith, she said.
Glassdoor is represented by Perkins Coie LLP and Seubert French Frimel & Warner LLP. The government is represented by U.S. Attorneys Andrew Stone and Gary Restaino.
To contact the reporter on this story: Daniel R. Stoller in Washington at dStoller@bna.com
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