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Glassdoor must produce user info about anonymous reviews relevant to fraud investigation of employer

By Lorene D. Park, J.D.

The Ninth Circuit has affirmed a district court’s denial of Glassdoor, Inc.’s motion to quash a grand jury subpoena requiring it to disclose identifying information about eight users who posted anonymous reviews about their employer. Rejecting Glassdoor’s First Amendment challenge, the appeals court found that the company failed to allege, must less provide evidence, that the government’s investigation of the employer for fraud was conducted in bad faith (United States v. GlassDoor, Inc., November 8, 2017, Tallman, R.).

Employee reviews on Glassdoor. Glassdoor operates a website where employers promote their companies to potential employees, and employee post reviews of what it is like to work at their companies. In these reviews, which are anonymous, employees rate employers in a variety of categories and describe workplace environments, salaries, and interviewing practices.

Privacy policy. Though the reviews are anonymous, users have to provide their email addresses to Glassdoor in order to post reviews. Users are warned that such information may have to be disclosed if required by law. In addition, though the privacy policy assures that the company generally does not disclose individual account or usage data to third parties, the policy expressly warns that Glassdoor “will disclose data if we believe in good faith that such disclosure is necessary . . . to comply with relevant laws or to respond to subpoenas or warrants or legal process served on us.” Finally, Glassdoor’s Terms of Use states that Glassdoor reserves the right “to take appropriate action to protect the anonymity of [its] users against the enforcement of subpoenas or other information requests.” The company was attempting to do that here in the face of an ongoing federal criminal investigation.

Grand jury investigation. An Arizona federal grand jury is investigating a government contractor that administers VA healthcare programs and is suspected of wire fraud and misuse of government funds. As of March 2017, employees of the subject company had posted 125 reviews on Glassdoor.com. Many criticized management and some made comments suggesting fraud. For example, one stated that the company manipulates “the system to make money unethically off of veterans/VA.” The government served Glassdoor with a subpoena seeking every post associated with the company, as well as identifying information about the users, email addresses, and other information. Glassdoor raised First Amendment concerns and the government agreed to limit its request to reviewer information associated with just eight exemplar reviews, in order to “contact those reviewers as third party witnesses to certain business practices” relevant to the investigation.

Motion to quash subpoena denied. Glassdoor filed a motion to quash, which the district court denied. It applied the good-faith test established by the Supreme Court in Branzburg v. Hayes and found that Glassdoor had not shown the grand jury investigation was being conducted in bad faith. It ordered Glassdoor to respond to the subpoena on pain of contempt.

Appeal. Glassdoor chose to bring a recalcitrant witness appeal rather than comply with the subpoena, and the parties stipulated to a judgment of civil contempt and sanctions of $5,000 per day until Glassdoor fully complies. On appeal, Glassdoor argued that the subpoena violated its users’ First Amendment rights by infringing on their associational privacy (to associate online with fellow employees to discuss job conditions) and their right to anonymous speech.

First Amendment issues. Affirming, the appeals court found the associational claim “tenuous” because jurisprudence contemplates groups of people associating to share views or join a common endeavor, not “people who happen to use a common platform to anonymously express their individual views.” Glassdoor users are necessarily strangers to each other and do not so much “discuss” employment conditions as simply post their independent views. Though the court was skeptical of the association claim, it did agreed that enforcing the subpoena implicated the First Amendment right to speak anonymously.

That said, Glassdoor’s challenge to the subpoena failed under Branzburg, in which the Supreme Court held that a reporter—even one who has promised his sources anonymity—must cooperate with a grand jury investigation unless there is evidence that the investigation is being conducted in bad faith. The appeals court rejected Glassdoor’s argument that it should instead apply the analysis from Bursey v. United States, in which the appeals court held that when a grand jury investigation into the activities of a group thought to be subversive “collides with First Amendment rights,” the government must satisfy a three-prong “compelling interest” test. Bursey was factually distinguishable while Glassdoor’s assertion of its users’ First Amendment right to speak anonymously was very similar to the argument rejected in Branzburg.

Under Branzburg, it is clear that Glassdoor’s users do not have a First Amendment right not to testify before the investigating grand jury about the comments they initially made under the cloak of anticipated anonymity. Therefore, Glassdoor could not refuse to turn over the users’ identifying information on the grounds of protecting its users’ underlying rights. Furthermore Glassdoor’s policy put users on notice before their first submission that their identifying information could be revealed to the government in response to a subpoena or court order.

No bad faith investigation, so must comply with subpoena. Because the appeals court concluded that Branzburg controls, the only question was whether there was evidence that the grand jury was acting in bad faith. Here, Glassdoor made no such allegation. To the contrary, the grand jury was investigating a government contractor for fraud, waste, and abuse of federal funds and each of the employees whose contact information was subpoenaed posted a review of the company being investigated and referenced potentially fraudulent conduct. Because Glassdoor had neither alleged nor established bad faith on the part of the government in its investigation, enforcement of the subpoena duces tecum to identify potential witnesses in aid of the government’s inquiries did not violate the First Amendment rights of Glassdoor’s users. Glassdoor must therefore comply.