Ninth Circuit Upholds Grand Jury Subpoena to Glassdoor
Glassdoor is a site where employees and former employees can post reviews and other information about companies and their management, including information about salaries, benefits, etc. Usually, these comments are anonymous.
Users are required to provide Glassdoor with their email addresses before they post. Before people post, Glassdoor warns them that their information may be disclosed if required by law.
Glassdoor also says that it will "take appropriate action to protect the anonymity of [its] users against the enforcement of subpoenas or other information requests.”
In March of 2017, Glassdoor received a grand jury subpoena seeking information about the identity of eight people who had posted about a company.
An Arizona grand jury was investigating a government contractor that administers two Department of Veterans Affairs (VA) healthcare programs. The grand jury was looking into whether the contractor had committed wire fraud and misused government funds.
Current and former employees of the contractor had posted 125 reviews on Glassdoor.com. Many of the reviews were critical of the company's management and business practices.
One employee said that the contractor “[m]anipulate[s] the system to make money unethically off of veterans/VA.”
Motion to Quash
Glassdoor tried to quash the subpoena, on the grounds that turning over the information would violate its users' rights to privacy and free speech.
A federal district court denied the motion, finding that the grand jury's request wasn't in bad faith.
Glassdoor was fined $5,000 per day until it complied with the court's order to turn over the information, but this fine was put on hold as it appealed.
The Ninth circuit noted that
Implicit in the First Amendment is a “right to associate for the purpose of engaging in those activities protected by the First Amendment.” ... Because there is a “vital relationship between freedom to associate and privacy in one’s associations,” in some circumstances, forcing organizations to disclose their members’ identities can infringe on their associational rights.
However, the court found that the Glassdoor website wasn't an "expressive association" like the Boy Scouts or NAACP.
The court also found no evidence that the grand jury was acting in bad faith:
The grand jury is investigating the subject government contractor for fraud, waste, and abuse of federal funds. Each of the employees whose contact information the government seeks posted a review of the subject that referenced potentially fraudulent conduct.
The court concluded that
The district court correctly ruled that there is a substantial connection between the subject matter of the investigation and the identifying information of the eight users whose Glassdoor posts allude to potentially fraudulent behavior. We agree. Any incidental infringement on Glassdoor’s users’ First Amendment rights is no more drastic than necessary to vindicate those compelling interests.
Techdirt called the decision "terrible," saying that people who post "anonymously" online will "forever be vulnerable to being unmasked by any federal criminal investigation, just so long as the investigation is not being done in bad faith."