In November of 2017, a federal appeals court rejected employment-related site Glassdoor’s claim that its users had a First Amendment right to anonymity that would protect their information from disclosure pursuant to a grand jury subpoena. The panel also sustained a contempt order that was entered by the district court to enforce the decision. (In re Grand Jury Subpoena, No. 16-03-217, Civ. No. 17-16221, D.C.No. 2:17-mc-00036-DJH (9th Cir. Nov. 8, 2017)). (We had previously covered an unrelated case involving anonymity of reviews on Glassdoor.com posted by former employees here.)
Glassdoor, Inc. operates Glassdoor.com, a website where employers promote their companies to potential employees, and employees post anonymous reviews of their employers, rating the employers in different categories and describing the work environments, salaries, and interviewing practices. An Arizona federal grand jury was investigating a government contractor who administered two Department of Veterans Affairs (VA) healthcare programs for fraud-related crimes. By March 2017, current and former employees of the subject contractor had posted on Glassdoor.com 125 critical reviews, in which they indicated that the contractor might be operating fraudulently and unethically.
In March, the federal government served Glassdoor with a grand jury subpoena requesting reviews and reviewer information associated with the subject contractor. The information sought included the reviewers’ “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.” Upon Glassdoor’s objection under the First Amendment, the government limited its request to information regarding only eight reviewers, and explained that the information would allow it to contact these reviewers as third party witnesses. Glassdoor maintained its objection and moved to quash the subpoena in the federal district court.
The district court denied Glassdoor’s motion. It refused to apply the law from Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972), which would require the government to satisfy a three-prong “compelling interest” test when a grand jury investigation into the activities of a group “collides with First Amendment rights.” Instead, the district court applied rules from Branzburg v. Hayes, 408 U.S. 665 (1972), a case decided at the same time as Bursey and required newspaper reporters—even those who have promised their sources anonymity—to cooperate with a grand jury investigation conducted in good faith. Because the district court found no evidence that the grand jury investigation was conducted in bad faith in this current matter, the court ordered Glassdoor to respond to the subpoena on pain of contempt.
Glassdoor appealed the district court’s decision to the Ninth Circuit, arguing that the grand jury subpoena violated its users’ right to associational privacy and right to anonymous speech under the First Amendment. The Ninth Circuit quickly dismissed the associational-privacy claim because the panel was “skeptical” that “Glassdoor’s users constitute an expressive association.”
On the anonymous-speech claim, Glassdoor contended that the panel should apply Bursey’s compelling-interest test, while the government argued for Branzburg’s good-faith test. The panel ultimately agreed with the government, holding that Bursey was inapplicable because the facts were distinguishable. The panel stated that even though Glassdoor is not in the news business, Glassdoor’s argument was “very similar” to the one rejected in Branzburg. According to the panel:
[A]lthough the Branzburg Court was responding to a newsgathering claim, it made clear that the First Amendment does not provide reporters—or anyone else—with a privilege against responding to a grand jury’s inquiries. Therefore, it doesn’t matter whether the underlying claim is related to newsgathering, speech, or association. These are all First Amendment-protected activities, but none of them will prevent an individual from being required to cooperate with a good-faith grand jury investigation. Only if a witness has a legitimate claim of self-incrimination under the Fifth Amendment may he refuse to answer questions or supply information relevant to the investigation.
The Ninth Circuit also pointed to Glassdoor’s own website privacy policy. The panel noted that while at least two reporters in Branzburg had promised anonymity to their sources, Glassdoor warned its contributors before their first submissions that their information could be revealed in response to a subpoena or court order. The panel concluded that Glassdoor’s users did not have a reasonable expectation of complete privacy, which further undermined their First Amendment claim. And because Glassdoor has not alleged or established bad faith by the government in the investigation, it must respond to the subpoena.
No one can predict whether the Ninth Circuit’s opinion will become the general law. Under this decision, it is unclear how much privacy one enjoys on social media and whether websites can offer their users more protection by wording the privacy policies differently. Although the Ninth Circuit seemed to have placed some weight on the fact that Glassdoor has notified its users of potential disclosure of their information if requested by law, the court’s broad interpretation of Branzburg suggests that this fact may not matter at all in a good-faith grand jury investigation unless the potential witness has a legitimate claim of self-incrimination.
The decision reinforces our previous messages that companies must be vigilant of their social media use. Additionally, even though a website’s privacy policy may not matter in a good-faith grand jury investigation, it is always a good practice for companies to scrutinize the privacy policy of a website on which they intend to post.
