Bradley Serwin, Glassdoor general counsel ()
The online review site Glassdoor Inc. launched nearly a decade ago and integral to its model was the ability for employees to leave an anonymous comments about their jobs. Ever since, the job recruiting company has fought efforts to release those identities, whether it be from a poorly reviewed employer or, now, from the federal government seeking potential witnesses in a criminal investigation.
The San Francisco-based company asked the U.S. Court of Appeals for the Ninth Circuit this month to block an attempt by federal prosecutors to unmask reviewers as part of a grand jury investigation. A federal court in Arizona ordered the company reveal identities of eight people who posted anonymous reviews about a federal contractor under investigation for fraud.
The company refused to comply, arguing that the user’s First Amendment right to speak anonymously and to associate freely on the online platform.
This area of the law is murky. Both sides pointed to U.S. Supreme Court case law from the 1970s. In one case, reporters sought to protect their sources and the court ruled the First Amendment did not shield them. The other case, which Glassdoor argues is more pertinent, involves reporters for the Black Panther Newspaper, where prosecutors must show to the court what they are seeking is relevant.
The outcome of the case could have wider reach in which the government could ask YouTube to identity users or Twitter to identify everyone who retweeted a tweet critical of government without weighing the case to a court. The U.S. government recently abandoned a case that sought to compel Twitter to identify the purported federal government workers who had created an anonymous account to criticize the Trump administration.
Glassdoor general counsel Brad Serwin recently spoke with Corporate Counsel about the case, the company itself and the implications of the outcome of the appeals court ruling. What follows are excerpts from that conversation.
Corporate Counsel: What are the issues at play in this case?
Brad Serwin: We see the case as about confirming the proper balance of online users’ First Amendment rights and the government’s rights to identify users in a criminal investigation.
Is this new ground?
We want to have the Ninth Circuit reaffirm that the government has to show that it has a compelling interest in the information it seeks and that information has a sufficient connection to the government’s investigation. Without this reaffirming this standard, the government could potentially demand user information without considering the user’s First Amendment rights.
What would a ruling in favor of the government mean specifically for Glassdoor and its business model?
At Glassdoor, we are active in protecting users’ right to speak anonymously about their workplace and company leadership. It’s very unusual for the government to ask for identification of our users. On occasion, a small number of employers that are upset about what someone said about them might ask for the identity of the speaker. We push back hard on that. … Regardless of the court’s decision, Glassdoor will continue to fight for our users’ rights. A loss could have some chilling effect, but as long as we continue to fight each and every case, we will continue to support a vibrant user community.
Why is this case important?
The internet is important to society. It’s the new public commons, where people talk about issues of public concern. The Supreme Court agrees. Just this last week in the Packingham case they overturned a ban on certain convicted felons accessing social media. They recognize that the internet has an important role to play. And at Glassdoor, we use the internet to let users talk about work, one of the most important things in people’s lives. We are trying to make the world a better place by providing transparency to help people find a job and company they love. They should be able to do that without fear and free from government overreach.