Glassdoor.com allows employers to promote their companies and enables employees to anonymously rate and review their employers, provided they sign up with an email address. Glassdoor’s privacy policy represents that it does not generally disclose individual account or usage data to third parties, but expressly warns users that Glassdoor will disclose data if it believes in good faith that disclosure is necessary to comply with the law. At issue in this case were reviews posted by more than 100 current and former employees of a government contractor that administers two health care programs for the Department of Veterans Affairs. The contractor is the subject of an Arizona federal grand jury investigation for potential wire fraud and misuse of government funds.

In connection with that investigation, the government served Glassdoor with a subpoena requesting the reviews and the following associated information:

• IP addresses
• Logs, including time stamp, username, email address
• Resume
• Billing information, such as first and last name, credit card information, billing address, and payment history
• Additional contact information for the purposes of contacting the users as third-party witnesses to business practices relevant to its investigation

In light of Glassdoor’s First Amendment concerns, the government limited the scope of the subpoena, requesting information associated with eight exemplary reviews, rather than information for all 125 reviewers.

Pursuant to Glassdoor’s policy to “take appropriate action to protect the anonymity of [its] users against the enforcement of subpoenas or other information requests,” the company filed both a motion to quash the subpoena and a subsequent recalcitrant witness appeal in response to the District of Arizona’s denial. The parties stipulated to a judgment of civil contempt and sanctions of $5,000 per day until full compliance by Glassdoor, although the district court stayed enforcement of money sanctions pending resolution by the Ninth Circuit.

A three-judge appellate panel affirmed the District of Arizona’s denial of Glassdoor’s motion to quash, and sustained the contempt order entered to enforce it. The panel held that the district court properly applied the good-faith test established by the Supreme Court in Branzburg v. Hayes, 408 U.S. 665 (1972), and found that enforcement of the subpoena would not violate the First Amendment rights of Glassdoor users absent bad faith by the government in its investigation. Writing for the court, Circuit Judge Tallman dismissed the associational privacy claim and addressed the anonymous speech claim through the lens of Branzburg.

First, in regard to associational privacy, the Ninth Circuit acknowledged that forcing organizations to disclose member identities can infringe associational rights in some circumstances, but the court expressed skepticism of Glassdoor’s argument that its users constitute an “expressive association” because they “associate online with other users and fellow employees to discuss the conditions of their jobs.” The court acknowledged Supreme Court jurisprudence protecting expressive associations for groups like the Jaycees, Boy Scouts, and NAACP “who have associated to advance shared views” or “join in a common endeavor,” by distinguishing Glassdoor users as strangers who “happen to use a common platform” to anonymously and independently express individual views that vary between positive and negative. The First Amendment does not require every member of an expressive association to agree on everything, Judge Tallman noted, but such an association presupposes a unified view from which members might deviate.

Second, the Ninth Circuit considered the First Amendment concerns based on the “limited right to speak anonymously” both online and offline under the Supreme Court’s good-faith test articulated in Branzburg, and the court’s compelling-interest test in Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972).

In Branzburg, the Supreme Court held that reporters, even those who promise sources anonymity, must cooperate with a grand jury investigation—as all citizens must—unless the government is conducting the investigation in bad faith. A day later in Bursey, the Ninth Circuit held that when a grand jury investigation into activities of a group “collides with First Amendment rights,” the government must prove: (1) it has an “immediate, substantial, and subordinating” interest in the subject matter of the investigation; (2) there is a “substantial connection” between the information it seeks and its compelling interest in the investigation; and (3) the means of obtaining the information is not more drastic than necessary to advance the government’s interest. The Ninth Circuit reiterated its past declarations that Bursey and Branzburg can be applied in harmony.

Here, in view of Branzburg, the Ninth Circuit found that no one can refuse to comply with a good faith grand jury subpoena unless invoking the Fifth Amendment privilege against self-incrimination. The court also reasoned under Bursey that Glassdoor did not allege bad faith, and it found no basis to conclude so in any event. Furthermore, it found any argument that Glassdoor’s user information does not have a “substantial connection” to identifying third-party witnesses with knowledge of relevant business practices of the contractor subject to the grand jury’s investigation “belied by the record.”

Takeaway

Although the Ninth Circuit describes Branzburg’s “good-faith” and Bursey’s compelling-interest or “bad faith” approach as two separate tests, they appear to be conflated in practice, with analysis of at least the “substantial connection” factor of the Bursey test going to the question of whether the government is engaging in either a good or bad faith investigation. In practice, if there is a finding of good faith, a motion to quash will be denied under Branzburg; if there is a finding of bad faith, a motion to quash may be granted under Bursey, consistent with Branzburg. The trouble lies in a court deciding that evidence supporting a Bursey factor does not rise to the level where it qualifies as an allegation of “bad faith,” even if a party did not explicitly argue “bad faith.” The Ninth Circuit’s latest decision highlights an area of likely confusion for companies like Glassdoor that seek to preserve the privacy and First Amendment rights of their users.

Client Alert 2017-294