Glassdoor must disclose user identities to grand jury, court rules

A 9th U.S. Circuit Court of Appeals panel ruled Wednesday that Glassdoor Inc. must reveal the identities of eight users to a grand jury in response to a subpoena.

The ruling appears to continue a troubling trend for the company, which operates a website that allows users to rate or review employers. A California appellate court ruled in July that Glassdoor had to disclose the identity of several users in a case where a company alleged that a competitor was writing fake reviews.

Just as in that case, Glassdoor isn’t accused of any wrongdoing in the litigation before the 9th Circuit.

The ruling, which affirms an order from U.S. District Judge Diane J. Humetewa of Arizona, could have a chilling effect on Glassdoor’s business, as users won’t be able to assume that the posts on the site wouldn’t be revealed in litigation.

Judge Richard C. Tallman wrote in his opinion Wednesday that users had little reason to believe their posts would remain anonymous to begin with. In re Grand Jury Subpoena, 2017 DJDAR 10632.

“Glassdoor’s Privacy Policy puts its users on notice before their first submission is posted that their identifying information could be revealed to the government in response to a subpoena or court order,” he wrote.

David Fishman, a spokesman for Glassdoor, wrote in an emailed statement Wednesday that the company fights vigorously to protect the privacy of its users and was disappointed by the 9th Circuit’s decision.

“We argued that the lower court applied the wrong standard in placing the interests of government ahead of Americans’ protected free speech rights under the First Amendment,” he wrote. “We had hoped to persuade the Ninth Circuit Court to require a higher standard for these requests.”

Both cases drive home the same point: the content of a post matters.

The 9th Circuit case involves reviews posted by purported employees of a government contractor that is under investigation for wire fraud or misuse of government funds. The opinion doesn’t disclose the identity of the contractor under investigation, only noting that it “administers two Department of Veterans Affairs health care programs.”

Tallman wrote that the users who wrote the posts will be unmasked because their statements on Glassdoor about their alleged employer’s business practices suggest they may have direct knowledge of a crime or evidence of a potential crime.

“The speakers whose identities the government seeks may well be witnesses to this criminal activity, perhaps even participants in it,” Tallman wrote.

In the state appellate court case decided in July, Justice Maria P. Rivera wrote that provably false statements could lead to an unmasking of users who wrote Glassdoor posts in a defamation case.

Similarly, Tallman wrote that the specific nature of the posts the subpoenas targeted distinguished this case from overbroad information requests in the past.

He contrasted Glassdoor’s situation with a historical case where courts rejected overbroad subpoenas brought against members of the Black Panther newspaper as part of an investigation of a suspected assassination plot against Richard Nixon.

“There was evidence that the government was engaged in a fishing expedition designed to gather as much background information as possible about the activities of a dissident group,” Tallman wrote.

He contended that the same factors were not at play in the Glassdoor case.

“There is a substantial connection between the information the government seeks and the criminal conduct it is investigating,” he said.

Tallman added that the government already cut down its initial request for information on all 125 users who posted about the company and focused in on eight users “whose reviews arguably describe what may be fraudulent behavior.”

Eric D. Miller, a Perkins Coie LLP partner, argued on behalf of Glassdoor. A representative for the Arizona U.S. attorney’s office, which handled the case for the government, declined to comment.