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Glassdoor Can’t Bar Grand Jury Subpoena for Posters’ IDs

(November 9, 2017) Glassdoor, Inc. can’t prevent a grand jury from seeing the email addresses and other information of users who posted anonymous reviews about their employer because their posts are not protected by the First Amendment.

The Ninth Circuit affirmed a denial of a request by Glassdoor to quash subpoenas requiring the company to disclose information provided by posters on its website. Employers use the site to promote their company to potential employees. In turn, Glassdoor allows the employer’s employees to comment on what it is like to work for the employer.

The grand jury subpoenas were issued as part of a wire fraud and misuse of government funds investigation of a government contractor that administers two Department of Veteran Affairs healthcare programs. In particular, the subpoenas sought the identity of eight Glassdoor posters who claimed to be employees of the company under investigation who posted comments including that the company “[m]anipulate[s] the system to make money unethically off of veterans/VA,” and “[t]here’s a real disconnect between how this program runs and how the VA thinks the program runs.”

Glassdoor’s terms of use warns posters that their information may be disclosed when required by law. This warning underscores that “Glassdoor’s users do not have a reasonable expectation of complete privacy” regarding their identity, the court found. Nonetheless, Glassdoor sought to quash the subpoena arguing that the posters had a First Amendment right to associational privacy and anonymous speech.

The appellate court found that the First Amendment does not “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 court noted that the subpoena was only for eight posters “who  appear to have relevant information about the manner in which the subject of the grand jury’s investigation administered its government contracts.” In other words, the court said, the government is not on an improper fishing expedition.

“The district court correctly ruled that there is a substantial connection between the subject matter of the investigation and the identifying information of the eight users whose Glassdoor posts allude to potentially fraudulent behavior. We agree. Any incidental infringement on Glassdoor’s users’ First Amendment rights is no more drastic than necessary to vindicate those compelling interests,” the option states.

In re Grand Jury Subpoena, No. 16-03-217, Ninth Cir. No. 17-16221, issued November 8, 2017.