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No First Amendment Privacy Protection from Grand Jury Subpoena for Identity of Anonymous Reviewers on Glassdoor.com

On November 8, 2017, the Ninth Circuit concluded that the First Amendment did not protect the anonymity of Glassdoor.com users from a grand jury subpoena.  Glassdoor operates the website Glassdoor.com, which permits employees to post anonymous reviews about their employers.  An Arizona grand jury is investigating a government contractor that administers two VA healthcare programs for fraud and misuse of government funds.  Eight Glassdoor.com users posted anonymous comments about the government contractor indicating that the users may have some information relating to the crimes under investigation.  For example, one comment reads that the contractor “manipulate[s] the system to make money unethically off of veterans/VA.”  Although there are 125 reviews of the contractor, the grand jury subpoena sought only information on the eight individuals whose reviews “referenced potentially fraudulent conduct.”

Glassdoor moved to quash the subpoena, claiming that complying with the subpoena would violate its users’ First Amendment rights to associational privacy and anonymous speech.  The Court rejected both First Amendment arguments.

First, the Court held that there were no associational privacy protections here because the users posting reviews did not have a “common cause” for which they were associating but, rather, the users were posting individual opinions about their employers.  Second, the Court recognized that there is a right to speak anonymously but held that the right is not unlimited.  Relying on a U.S. Supreme Court case involving the anonymity of a reporter’s sources, the Court explained that anonymity is not protected in a grand jury investigation where the investigation is conducted in good faith.

In addition, the Court pointed to Glassdoor’s privacy policy and found that it undermined Glassdoor’s arguments.  The privacy policy notifies users before the users’ first post on the site that identifying information of its users could be revealed in response to a subpoena or court order.

Finally, the Court explained that the relevancy, admissibility and specificity standards applicable to trial subpoenas do not apply to grand jury subpoenas because applying such standards would frustrate the purpose of the grand jury process.  The Glassdoor grand jury subpoena is seeking information only on the eight users who posted reviews that indicate possible knowledge of improper conduct by the contractor.  According to the Court, the limited grand jury subpoena meets the good faith standard.

The case can be found here.

© Copyright 2020 Murtha CullinaNational Law Review, Volume VIII, Number 178



About this Author

Dena Castricone, Murtha Cullina Law Firm, Privacy and Cybersecurity Attorney

Dena M. Castricone is a member of the Long Term Care and Health Care practice groups.  She is the Chair of the Privacy and Cybersecurity practice group and the Chair of the firm’s Pro Bono Committee.  Prior to joining Murtha Cullina, Dena served as a law clerk to the Chief Justice of the Rhode Island Supreme Court, Frank J. Williams.

Dena’s long term care and health care clients compete in a constantly evolving industry, facing both rising administrative and regulatory burdens and shrinking reimbursement rates. She helps skilled nursing centers, physician groups, home health and...