Glassdoor.com is a website operating with the goal of ensuring transparency between employers and employees. There, employees of various companies can anonymously share information about their employer including interviewing practices, salaries, and the overall employer environment.
Before posting any employer reviews, employees are asked for their email address and told that their information will be kept anonymous, but that it may have to be shared under court order or subpoena. In March 2017, Glassdoor was served with a subpoena to provide an Arizona grand jury with the user information (including email address, name, billing address, and IP address) of every employee who had reviewed a government contractor that the government was investigating on charges of fraud. In the subpoena, the government provided eight “exemplar reviews” which were all critical of the contractor for bad/fraudulent business practices.
Glassdoor objected to this subpoena, arguing that it violated its users’ First Amendment rights to free association and anonymous speech. In response, the government limited the subpoena to just the information of the users of the eight exemplar reviews, but Glassdoor maintained their objection. Glassdoor argued that the anonymity provided to its users was crucial to their ability to review their employers and that they offered expressive association to users who could associate with their fellow employees on the site. Any “unmasking” of these users would threaten those protected activities. The Ninth Circuit did not find these arguments persuasive. Glassdoor’s users do not congregate for the purpose of a common endeavor, said the Court, nor are they even allowed to communicate with one another on the site; they simply share the same platform to voice their opinions.
Further, because the Court found that no testimonial privilege applies for Glassdoor’s users and that, under Glassdoor’s privacy policy, users do not have a reasonable expectation of privacy under court order, the users are therefore not sheltered by the First Amendment from testifying in front of a grand jury.
Case: In re Grand Jury Subpoena, No. 16-03-217, No. 17-16221 (9th Cir. Nov. 8, 2017) (opinion here)
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