Court: Online service must identify anonymous users to grand jury
Wednesday, Nov. 8, 2017
WASHINGTON – A federal appeals court ruled Wednesday that an online job-rating site has to turn over the identities of anonymous users who posted comments about a company being investigated for its handling of a Department of Veterans Affairs contract.
Glassdoor.com was subpoenaed by a federal grand jury in Arizona for information – including emails and IP addresses, billing address, logs of reviews, payment history and other contact information – on users who charged that the VA contractor was committing fraud.
Glassdoor argued that the subpoena violates its users’ First Amendment rights to privacy and association, but a district court judge disagreed and a three-judge panel of the 9th U.S. Circuit Court of Appeals upheld that ruling Wednesday.
The appeals court, citing a case dealing with reporter’s privilege, said that case “made clear that the First Amendment does not provide reporters – or anyone else – with a privilege against responding to a grand jury’s inquiries…. 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.”
But one legal expert said the decision will have “a chilling effect, not only on glassdoor.com, but on anyone” that wants to post anonymously online.
Glassdoor.com lets employers promote their companies online, but it also allows users to post anonymous reviews of what it’s like to work at a particular company. Posters are required to provide an email address, which does not appear with their posts.
The site was served with just such a subpoena in March, when the government demanded information on users who had posted online reviews of a “government contractor that administers veterans’ healthcare programs.” That company, which is being investigated by a federal grand jury for “alleged fraud and abuse,” was not identified in court papers.
Reviews of the health care company ranged from positive to negative, the court said, with some alleging that the contractor manipulated “the system to make money off of veterans/VA” and others calling it a “great company.”
The government first sought information on all 125 reviewers, and included eight particularly critical reviews of the health care company as examples. When Glassdoor objected to the scope of the subpoena, the government agreed to ask for just the eight example reviews, but the online site still objected and moved to quash the subpoena.
The appellate court said that while activities on the site are protected by the First Amendment, “none of them will prevent an individual from being required to cooperate with a good-faith grand jury investigation.” And the opinion noted that Glassdoor “is not alleging any bad faith on the part of the Arizona grand jury conducting this particular investigation.”
The opinion said that the witnesses “whose identities the government seeks may well be witnesses to this criminal activity, perhaps even participants in it.” It rejected the suggestion that the government is “on an improper fishing expedition” with the subpoena.
But Aaron Mackey, a staff attorney with the Electronic Frontier Foundation, which filed a friend of the court brief in the case, said there has to be a burden of necessity to justify the government’s demand to reveal sources.
“When a court wants to unmask someone, they have to go through steps, there is a process for that kind of thing,” Mackey said Wednesday. “This case significantly departs from those principles.”
An attorney for Glassdoor declined comment on the ruling, and a request for comment from the U.S. Attorney’s Office for Arizona was not immediately returned Wednesday.
But Mackey said the “concerning decision” by the court could affect all online users.
“This decision has a chilling effect, not only on glassdoor.com, but on anyone that uses speech online,” he said. “Whether that’s a blog on WordPress, or Twitter, if there is a criminal investigation with a grand jury, you have no right to anonymity.”