Co-authored by Chieh Tung
In a case with free speech implications, the U.S. Court of Appeals for the Ninth Circuit on November 8, 2017, affirmed the denial of Glassdoor, Inc.'s motion to quash a grand jury subpoena for the identities of the Glassdoor users who anonymously posted about a government contractor under investigation. The court held in U.S v. Glassdoor that because Glassdoor had neither alleged nor established bad faith on the government's part in investigating the contractor, enforcement of the subpoena did not violate Glassdoor users' First Amendment rights. The ruling highlights the difficulties that online platforms face when government entities seek user information in support of an ongoing criminal investigation.
Background
Glassdoor operates a website—Glassdoor.com—where employees post reviews of their experiences at different companies. While Glassdoor reviews are all anonymous, users trying to submit a review must provide their e-mail address, which is not disclosed on the website. Glassdoor's terms of use and privacy policy also state that Glassdoor will disclose user data if it has a good faith belief that such disclosure is necessary to comply with relevant laws or respond to subpoenas.
In March 2017, the government served Glassdoor with a subpoena as part of a federal grand jury investigation into a government contractor who administered two U.S. Department of Veterans Affairs healthcare programs. The subpoena required Glassdoor to produce every company review for the contractor's company, as well as associated "reviewer information"—"internet protocol addresses and logs associated with all reviews including date and time of post, username, email address, resume, billing information such as first name, last name, credit card information, billing address, payment history, and any additional contact information available." In response to Glassdoor's First Amendment concerns, the government limited its request to user information associated with eight specific reviews. The government indicated that the requested information was to enable it to contact reviewers as potential witnesses to certain business practices relevant to its investigation.
The district court denied Glassdoor's motion to quash, holding that Glassdoor had not shown that the grand jury investigation was conducted in bad faith, pursuant to the test established by the U.S. Supreme Court in Branzburg v. Hayes.
Ninth Circuit Holding
The Ninth Circuit affirmed the district court's denial of Glassdoor's motion to quash, and sustained the contempt order entered to enforce it. As a preliminary issue, the court found that Glassdoor had standing to assert the rights of its users—a position that the government did not challenge.
Glassdoor argued that the subpoena violated the First Amendment rights of its users by infringing on their rights to associational privacy and anonymous speech. The Ninth Circuit rejected this argument, reasoning that the Supreme Court's expressive-association jurisprudence involves people who associate to advance shared views or "join in a common endeavor"—not those who "happen to use a common platform to anonymously express their individual views." Because Glassdoor users are necessarily strangers to each other as anonymous posters, they cannot engage in dialogue or a common endeavor. The Ninth Circuit also held that the right to anonymous speech is limited depending on the circumstances and the type of speech at issue. In deciding this issue, the court applied the "good faith" standard established in Branzburg.
In Branzburg, the Supreme Court held that a reporter who had promised his sources anonymity must nonetheless cooperate with a grand jury investigation unless there was evidence that the investigation was being conducted in bad faith. The Ninth Circuit found Glassdoor's position akin to that of reporters in that Glassdoor gathers and publishes information from sources it has promised anonymity, and anonymity is an essential element of its business practice. The court held that First Amendment-protected activities, such as news gathering, speech or association, do not shield a person from being required to cooperate with a good-faith grand jury investigation. In addition, the Ninth Circuit noted that unlike Branzburg, where at least two reporters had promised to maintain anonymity of their sources, Glassdoor's privacy policy had notified users that it may reveal user information in response to a government subpoena or court order. Whereas the sources in Branzburg had a reasonable expectation of anonymity, the Ninth Circuit found that Glassdoor users did not have any reasonable expectation of "complete privacy."
Bursey v. United States
In finding Branzburg the applicable standard in the case, the Ninth Circuit rejected Glassdoor's argument that Bursey v. United States was controlling. In Bursey, the Ninth Circuit held that when grand jury investigations implicate First Amendment rights, the government may not compel potential witnesses to answer questions unless it establishes (1) it has an "immediate, substantial and subordinating" interest in the subject matter of the investigation; (2) that there is a "substantial connection" between the information it seeks and its compelling interest; and (3) that the means of obtaining the information is "not more drastic than necessary" to advance that interest. The court distinguished Bursey on two grounds. In Bursey, the grand jury had asked questions about the inner workings of the Black Panther newspaper and its staff that were not substantially related to its investigation into death threats against President Nixon. There was also evidence that the government was engaged in a "fishing expedition" to gather information about a dissident group. The court noted that, in contrast, Glassdoor had not proffered any evidence of improper government conduct, and the government had limited its subpoena to eight Glassdoor users who appeared to have relevant information concerning the investigation.
Applying Branzburg, the Ninth Circuit concluded that the government had not acted in bad faith. Glassdoor had not asserted any acts of bad faith, and the information the government sought would assist the grand jury in its investigation. As a matter of policy, the Ninth Circuit also found that applying Branzburg in this case would be more consistent with the nature and importance of grand jury proceedings, as subjecting the government to the "compelling interest" test would burden the process and threaten the secrecy of grand jury proceedings. The court further concluded that, even if Bursey applied, Glassdoor would still have to comply with the subpoena as the government had a clear and compelling interest in investigating potential violations of federal law by a government contractor; there was a substantial connection between the investigation and the eight Glassdoor users that the government had identified; and any infringement of the Glassdoor users' First Amendment rights was only "incidental" and no more drastic than necessary to achieve the government's compelling interests.
Takeaways
The implications of the Glassdoor decision are significant for companies that offer online forums for users to anonymously express their views. The Glassdoor decision makes it extremely difficult for these companies to prevail on First Amendment challenges to government subpoenas and search warrants seeking information concerning these users, provided that the government requests are sufficiently tailored to evidence relevant to the crime under investigation. By applying the Branzburg standard and requiring these companies to establish facts demonstrating that the government is acting in bad faith in connection with its subpoena or search warrant, the Ninth Circuit has increased the likelihood that motions to quash like the one in the Glassdoor case will fail. Companies, therefore, should review their privacy policies to ensure that they adequately communicate that they may have to disclose user information in the event that they are served with a subpoena or search warrant seeking that information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
