Earlier this month, the 9th Circuit dealt online anonymous reviewing services a chilling blow when it decided United States v. Glassdoor. Faced with an online service which allowed people to post employer reviews for the benefit of others, the Court determined that those who posted on the service were like newspaper reporters and reverted to an analysis used for print media some 40 years ago.

Specifically, the Court ruled that the government could compel Glassdoor to reveal the identity of anonymous reviewers of employers by employees who posted on the site even if those who had posted didn’t consent. What this means for other online services that rely on similar anonymous posts could be significant. At the very least, use of outmoded legal concepts for new technological driven will be chilling and is unfortunate.

This means the government could compel Glassdoor to reveal the identity of anonymous reviewers of employers by employees who posted on the site even if those who had posted didn’t consent.

Background

The case started when the government served a subpoena on Glassdoor, an online forum where current and former employees can anonymously post reviews about the salaries and work environments of their places of employment. The subpoena asked for identifying information for more than one hundred accounts that had posted reviews of an employer whose contracting practices were apparently under criminal investigation by a federal grand jury. The investigation centered on alleged wire fraud by one of the companies that was under investigation by a Grand Jury.
Glassdoor refused to reveal its users’ identity to the Grand Jury citing among other things the First Amendment right of its users to speak anonymously. According to Glassdoor identifying its users, “could have a chilling effect on both Glassdoor’s reviewers’ and readers’ willingness to use glassdoor.com.”

Identifying its users, “could have a chilling effect on both Glassdoor’s reviewers’ and readers’ willingness to use glassdoor.com.”

Glassdoor subsequently moved to quash the subpoena, invoking its users’ First Amendment right to speak anonymously, while simultaneously notifying the targeted users of the subpoena’s existence.
Curiously, the record of the case was sealed from the beginning despite attempts to open so all we are left with is the Court’s opinion.

The Holding

The Court held Glassdoor to the standard set in Branzburg v. Hayes, where the Supreme Court held that a newspaper reporter must cooperate with a grand jury investigation unless there the reporter presents evidence that the investigation is being conducted in bad faith—which the 9th Circuit said Glassdoor had failed to do. Showing bad faith governmental conduct is difficult and there can be little doubt that the ruling is a blow to the free speech and privacy rights of those who post online.

Moreover, ever since Branzburg was decided some 40 years ago, courts have recognized the severity of revealing a speaker’s identity against his or her will, and have imposed a variety of evidentiary requirements and multi-part balancing tests to ensure speakers’ rights are adequately protected. Despite this, the 9th Circuit rejected more recent case law, such as Bursey v. United States, which involved an actual newspaper and which would have the government —not Glassdoor—show a compelling need for the identities to be revealed. Said the Bursey Court “The right to be anonymous is aspect of the freedom of speech protected by the First Amendment.” In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011) (quoting McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995)). So even though in Bursey the Court realized that, “[t]he press function with which the [Branzburg] Court was concerned was news gathering,” but “[n]ews gathering [was] not involved” in Bursey, in Glassdoor the Court nevertheless treated Glassdoor as a newspaper and those who posted on the forum just like reporters.

The Impact
But news gathering is not the crux of this case: Glassdoor is not news organization nor are those who post on its site reporters or gathering news. Those who post on Glass door are not paid to report or analyze news in the traditional sense. Instead they are offering up information that probably is not available any place else primarily to benefit others. The only incentive for people to offer up the time to do this is to engage more openly with one another and provide information that otherwise would likely not get provided.

Those who post on Glass door are not paid to report or analyze news in the traditional sense. Instead they are offering up information that probably is not available any place else primarily to benefit others.

And online communications necessarily depend on intermediaries, such as internet service providers and messaging platforms, to facilitate their carriage, accessibility, and storage. Those who post on the internet users are particularly vulnerable to having their speech published, taken out of context, examined, questioned and criticized in ways that true new reporters do not and in ways they can not anticipate when initially posting a comment. If a person fears that statements he or she makes online will be linked to their professional or legal identity, they will likely refrain from voicing at least some thoughts due to concerns about potential repercussions and reprisal. And the community suffers.

And without this ability, information which could be useful would not be published. Certainly one can question the reviews of anything from time to time. But that doesn’t mean that the voices should be silenced. Any without this publishing opportunity, that is exactly what will happen.
These differences compel the higher Bursey standard which by the way is not an impossible one to meet. The government-not the blogger-should be required to make a showing of need. It is the government that holds all the cards here and is best able to overcome this burden of proof.

Would there be any restraints on what the government could compel in the name of investigation?

And when one thinks of all the online services using anonymous postings, the consequences of the opinion are vast. Not to mention the slippery slope the opinion creates. Would there be any restraints on what the government could compel in the name of investigation? Would there ever be a case where a blogger could show government bad faith? How? What about civil litigation?
Its one thing to give up privacy when we know what we are doing. Its quite another to believe what you are saying is anonymous only to find out big brother can find out who you are with very little restraint.

Photo Attribution: simpleinsomnia via Flickr; Mao Tse-Tung via Flickr