Appeals Court Nearing Decision in Glassdoor Internet Anonymity Case

The 9th Circuit Court of Appeals is nearing a decision in a case involving the anonymity of users of the employer rating website Glassdoor, following the federal government’s subpoena of Glassdoor for user info in a fraud case.

Ars Technica reports that that the Glassdoor case was brought to public attention by Public Citizen lawyer Paul Levy, who had plans to submit an amicus brief in the case. Levy stated that he believes the case involves, “a significant free speech issue bearing on the rights of anonymous Internet users.” Glassdoor is a website that allows users to rate employers and provide candid feedback about the workplace anonymously.

Glassdoor recently received a subpoena from federal investigators requesting the employee information of more than 100 anonymous users that had left reviews for a company that is currently under federal investigation for fraud related to contracting practices. Later, the investigators compromised by requesting the information of only eight users in particular as they believe that these eight users may be, “third-party witnesses to certain business practices relevant to [the] investigation.”

Glassdoor proposed a further compromise to the investigators, in which they would notify the eight users about the government’s investigation and provide private information about users that agreed to share their personal info with the government. The investigators declined this proposal leading to Glassdoor taking to the courts in an attempt to have the subpoena thrown out. Glassdoors lawyers argued that while the company has “no desire to interfere” with the federal investigation, Glassdoor users also possess the first amendment right to speak anonymously and that if this right is interfered with, “could have a chilling effect on both Glassdoor’s reviewers’ and readers’ willingness to use glassdoor.com.”

This motion was opposed by the government, which prevailed in district court. US District Judge Diane Humetewa agreed with government prosecutors that the key 1972 case that Glassdoor lawyers relied upon to prove their point, Bursey v. US, did not apply in the current situation as it protected the anonymous speech of political groups that “anonymously print[ed] and distribute[d] critiques of the government.”

Humetewa stated, “The fact that the relevant users in this case work (or worked) for a publicly-funded program does not make this speech political. Nor does it transform the reviewers from individuals voicing concerns about fraud into an association engaged in advocacy.”

It is the opinion of Paul Levy that Humetewa  “refused to take seriously the First Amendment rights of Glassdoor users,” and that her statement showed a fundamental misunderstanding of the first amendment. Levy stated, “The government’s contention… that the speech in the employee reviews enjoyed something less than full First Amendment protection, because they are not ‘political speech,’ is also plainly wrong.”

Public Citizen had planned to submit an amicus brief that supported Glassdoor, “from a consumer and employee perspective.” But all amicus briefs have been rejected by the appeals court which plans to keep the entire docket under seal, despite Glassdoors request to unseal it. The appeals court stated on July 6th, “The Court sees no need for participation by amicus curiae at this stage of the litigation.”

Levy responded saying, “Given that so much of the docket in the District of Arizona remains unsealed, it is hard to see what legitimate secrecy interests are preserved by the requirement that the merits briefs of the parties be kept entirely secret,” writes Levy in his blog post. “Will oral argument be held behind doors as well?” Glassdoor has declined to comment on the case.