Ninth Circuit Denies Glassdoor’s Motion to Quash Subpoena, Thereby Requiring the Review Website to Provide Identifying Information of Some Anonymous Users

In United States v. Glassdoor, Inc., the Ninth Circuit recently affirmed a lower court’s decision to deny Glassdoor’s motion to quash a grand jury subpoena, thereby requiring the employer review website to disclose identifying information of eight users who anonymously posted reviews about another company on its site. In doing so, the court has specified that the right to anonymous speech as protected by the First Amendment, either online or offline, is not without limit. is a website where companies are able to advertise job opportunities, and past or present employees of companies can post reviews of different companies regarding what it is like to work there. The reviews are posted anonymously. However, prior to posting a review, users are cautioned that their personal information may be disclosed when required by law, either through subpoena or court order. Users are also required to provide their email address before posting.

The subpoena in question relates to an ongoing Arizona grand jury investigation into the potential fraudulent activities of a government contractor that administers two Department of Veterans Affairs (“VA”) healthcare programs. The subpoena requests “reviewer information” connected to eight specific reviews of this government contractor. These reviews appear to be relevant to the investigation as the employees posting the reviews indicate that the contractor is engaging in “potentially fraudulent conduct.” An example of this is a post by a user regarding the contractor’s practice of setting call quotas so as to generate revenue by charging the VA for the calls that are made, “There is no intention of designing a more efficient system to assist Veterans because that would reduce the number of calls made… which equals less revenue.”

In its motion to quash the subpoena, Glassdoor asserted that the subpoena breached its user’s First Amendment rights in two ways, by infringing on their right to associational privacy and their right to anonymous speech. Affirming the district court’s decision, the Ninth Circuit held that where an individual speaker wishes to remain anonymous, that a grand jury subpoena requesting information identifying those people will be upheld in a case where the speakers may have information regarding criminal activity, absent a finding that the investigation is being conducted in bad faith. Brazenburg v. Hayes, 408 U.S. 665 (1972). Glassdoor asserted that the correct test is not bad faith, and that the party seeking the subpoena must in fact satisfy the three prong compelling interest test. Bursey v. US, 466 F.2d 1059 (9th Cir. 1972). The court rejected this argument, stating that the right to anonymous speech is not limitless, and that in this case, anonymity need only be sustained in the case of bad faith.

Additionally, the court pointed out that Glassdoor’s Privacy Policy puts its users on notice that personally identifying information may be revealed in response to a subpoena or court order, thereby undermining Glassdoor’s argument that its users have a reasonable expectation of complete privacy.

TAKEAWAY: In the age of anonymous review websites, it is important to be aware that a user’s First Amendment right to anonymous speech does not exist without limitation. Review websites and users alike should be aware that the bar for quashing a subpoena aimed at identifying an anonymous person is high in cases where the subject is thought to have information relating to potential criminal activity, with the party opposing the subpoena having to prove that the investigation is being conducted in bad faith.

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