The Case Of Glassdoor And The Grand Jury Subpoena, And How Courts Are Messing With Online Speech In Secret

from the it-ain't-so-grand dept

In my last post, I discussed why it is so important for platforms to be able to speak about the discovery demands they receive, seeking to unmask their anonymous users. That candor is crucially important in ensuring that unmasking demands can't damage the key constitutional right to speak anonymously, without some sort of check against their abuse.

The earlier post rolled together several different types of discovery instruments (subpoenas, warrants, NSLs, etc.) because to a certain extent it doesn't matter which one is used to unmask an anonymous user. The issue raised by all of them is that if their power to unmask an anonymous user is too unfettered, then it will chill all sorts of legitimate speech. And, as noted in the last post, the ability for a platform receiving an unmasking demand to tell others it has received it is a critical check against unworthy demands seeking to unmask the speakers behind lawful speech.

The details of each type of unmasking instrument do matter, though, because each one has different interests to balance and, accordingly, different rules governing how to balance them. Unfortunately, the rules that have evolved for any particular one are not always adequately protective of the important speech interests any unmasking demand necessarily affects. As is the case for the type of unmasking demand at issue in this post: a federal grand jury subpoena.

Grand jury subpoenas are very powerful discovery instruments, and with good reason: the government needs a powerful weapon to be able to investigate serious crimes. There are also important constitutional reasons for why we equip grand juries with strong investigatory power, because if charges are to be brought against people, it's important for due process reasons that they have been brought by the grand jury, as opposed to a more arbitrary exercise of government power. Grand juries are, however, largely at the disposal of government prosecutors, and thus a grand jury subpoena essentially functions as a government unmasking demand. The ability to compel information via a grand jury subpoena is therefore not a power we can allow to exist unchecked.

Which brings us to the story of the grand jury subpoena served on Glassdoor, which Paul Levy and Ars Technica wrote about earlier this year. It's a story that raises three interrelated issues: (1) a poor balancing of the relevant interests, (2) a poor structural model that prevented a better balancing, and (3) a gag that has made it extraordinarily difficult to create a better rule governing how grand jury subpoenas should be balanced against important online speech rights.

Glassdoor is a platform focused on hosting user-provided information about employers. Much of the speech it hosts is necessarily contributed anonymously so that the speakers can avoid any fallout from their candor. This is the sort of fallout that, if they had to incur it, would discourage them from contributing information others might find valuable. The seriousness of these sorts of consequences is why the district court decision denying Glassdoor's attempts to resist the grand jury subpoena seeking to unmask their users reflects such a poor balancing of the relevant interests. Perhaps if the subpoena had been intended to unmask people the government believed were themselves guilty of the crime being investigated, the balance might have tipped more in favor of enforcing it. But the people who the subpoena was seeking to unmask were simply suspected as possibly knowing something about the crime that others were apparently committing. It is not unreasonable for the government to want to be able to talk to witnesses, but that desire to talk to them is not the only interest present here. These are people who were simply availing themselves of their right to speak anonymously, and who, if this subpoena is enforced, are going to be shocked to suddenly find the government on their doorstep wanting to talk to them.

This sort of unmasking is chilling to them and anyone else who might want to speak anonymously because it means that there's no way they ever will be able to speak should their speech happen to ever somehow relate (however tangentially) to someone else's criminal behavior. It is also inconsistent with the purported goal of fighting crime because it will prevent criminal behavior from coming to light in the first place, for few will want to offer up information if it will only tempt trouble for them at some point in the future.

This mis-balancing of interests is almost a peripheral issue in this case, however. The more significant structural concern is why such a weak balancing test was used. As discussed previously, in order to protect the ability to speak anonymously online, it is important for a platform to be able to resist demands to unmask their users in cases where the reason for the unmasking does not substantially outweigh the need to protect people's right to speak anonymously online. But the district court denied Glassdoor's attempt to resist the subpoena when it chose to apply the test from Branzburg v. Hayes, a Supreme Court case focused on the ability to resist a grand jury subpoena. Branzburg, however, has nothing to do with the Internet or Internet platforms. It is a case from the 1970s that was solely focused on whether the First Amendment gave journalists the right to resist a grand jury subpoena. Ultimately it decided that they generally had no such right, at least so long as the government was not shown to be acting in bad faith, which, while not nothing, is not a standard that is particularly protective of anonymity. It also barely even addressed the interests of the confidential sources themselves, dismissing their interest in maintaining anonymity as a mere "preference," and one the Court presumed was being sought only to shield themselves from prosecution for their own criminal culpability.

The upshot of Branzburg is that the journalist, as an intermediary for a source's information, had no right to resist a grand jury subpoena. Unfortunately, Branzburg simply can't be extended to the online world where, for better or worse, essentially all speech must be intermediated by some sort of platform or service in order to happen. The need to let the platforms resist grand jury subpoenas therefore has less to do with whether an intermediary itself has a right to resist them and everything to do with the the right of their users to speak anonymously, which, far from being a preference, is an affirmative right the Supreme Court, after Branzburg, subsequently recognized.

A better test, and one that respects the need to maintain this critical speech right, is therefore needed, which is why Glassdoor appealed the district court's ruling. Unfortunately, its appeal has raised a third issue: while there is often a lot of secrecy surrounding a grand jury investigation, in part because it makes sense to keep the subject of an investigation in the dark, preserving that level of secrecy does not necessarily require keeping absolutely everything related to the subpoena under seal. Fortunately the district court (and the DOJ, who agreed to this) recognized that some information could safely be released, particularly related to Glassdoor's challenge of the subpoena's enforcement generally, and thanks to that limited unsealing we can tell that the case involved a misapplication of Branzburg to an Internet platform.

Unfortunately the Ninth Circuit didn't agree to this limited disclosure and sealed the entirety of Glassdoor's appeal, even the parts that were already made public. The effects of this sealing included that it became impossible for potential amici to weigh in in support of Glassdoor and to argue for a better rule that would allow platforms to better protect the speech rights of their users. While Glassdoor had been ably litigating the case, the point of amicus briefs is to help the court see the full implications of a particular ruling on interests beyond those immediately before it, which is a hard thing for the party directly litigating to do itself. The reality is that Glassdoor is not the first, and will not be the last, platform to get a grand jury subpoena, but unless the rules governing platforms' ability to resist are stronger than what's afforded by Branzburg, the privacy protection speakers have depended on will continue to evaporate should their speech ever happen to capture the interest of a federal prosecutor with access to grand jury.

For all we know, of course, the Ninth Circuit might have seen its point and quashed the subpoena. Or maybe it upheld it and maybe the FBI has now unpleasantly surprised those Glassdoor users. We may never know, just as we may never know if there are other occasions where courts have used specious reasoning to allow grand jury subpoenas to strip speakers of their anonymity. Even if the Ninth Circuit indeed fixed the problems with this questionable attempt at unmasking, by doing it in secret it's missed an important opportunity to provide guidance to lower courts to help ensure that they don't allow other questionable attempts to keep happening to speakers in the future.


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  • identicon
    Anonymous Coward, 6 Nov 2017 @ 9:50am

    "There are also important constitutional reasons for why we equip grand juries with strong investigatory power,"

    You can indict a ham sandwich. Since the education system and the legal system have worked tirelessly to keep citizens ignorant of constitutional rights the process is essentially broken and meaningless right now.

    http://www.slate.com/blogs/lexicon_valley/2014/11/25/sol_wachtler_the_judge_who_coined_indict_a_ ham_sandwich_was_himself_indicted.html

    Perception is indeed reality! You can be perfect at your job but you won't keep it if your boss thinks otherwise!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Nov 2017 @ 9:57am

    Once in a time. in what now seems a long time ago, early '90s I became involves with online posting.

    Now nearly 30 years latter I have developed a few rules.

    Never post anything on line that you are not willing to nail to the police's jail house door as everything you post can be and will be twisted, mangled, and mutilated to the point you have no idea what you or anyone else said or meant.

    If there is a choice between posting and not posting, DO NOT POST.

    reply to this | link to this | view in chronology ]

  • identicon
    Jordan Chandler, 6 Nov 2017 @ 10:00am

    Corruption

    Why are the judges so corrupt?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Nov 2017 @ 11:43am

      Re: Corruption

      It has been a very long time since Congress has abolished a court for not upholding the law correctly.

      The core problem with America right now lies directly with the largely ignored legislature and the two party system. Both the Executive and Judicial Branches could be complete reformed by a functional legislature. All 3 could be completely reformed by a convention of states as well.

      Most of the long term power is with the legislature, which is why it has the most members. We have never really been 3 equal branches of government, just that each branch has tools to put the others in check in certain circumstances.

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 6 Nov 2017 @ 4:44pm

      Re: Corruption

      They've been gradually getting more and more corrupt for so long that they don't even realize they're corrupt.

      And if you try to point it out to them, they jail you for contempt of court.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Nov 2017 @ 10:01am

    Another reason to not use those services?
    Thinly veiled attempt at censoring?

    idk, but it smells bad.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Nov 2017 @ 12:08pm

      Re:

      Another reason to not use those services?

      Yes, given that Glassdoor doesn't actually allow anonymous use: "Help Us Keep Glassdoor Safe - We have been receiving some suspicious activity from you or someone sharing your internet network. Please help us keep Glassdoor safe by verifying that you're a real person. We are sorry for the inconvenience. If you continue to see this message, please email [image] to let us know you're having trouble. - Code: CF-103"

      reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 6 Nov 2017 @ 10:20am

    It also seems like a result of laziness yet again. Why not just go to people at the company of interest and interview them? But as with encryption, they would complain that anonymity is "going dark" all the while there is generally more information available than there used to be. "But we need every last single bit of everything!"

    Here's a thought: Let the Feds themselves take anonymous info from anyone who wants to volunteer potential evidence of wrongdoing (aka "whistleblowing"), and take it seriously. I am sure they would have plenty of grist for their mill. (And then the whistleblowers can have FBI-style informant anonymity protection.)

    Yeah. Naaahhhh.

    reply to this | link to this | view in chronology ]

    • icon
      JustMe (profile), 7 Nov 2017 @ 8:51am

      Re: Going Dark

      And yet with all of this monitoring and supra-surveillance powers they are unable to stop the endless parade of terrible events. They didn't stop Sunday's shooting, or last week's truck attack, or last month's shooting, etc. despite (apparently) many warning signs from all three individuals. You'd think they would be telling us about actual deranged individuals they intercepted (instead of those made-up plots where the Can't Shoot Straight gang needs a ride to the hardware store from the undercover agent or they bring their kid to the planning meeting because they couldn't find a babysitter).

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Nov 2017 @ 11:12am

    On the technical solution side ...

    While it's obviously much better overall for the platform to have a legal right to resist these demands, platforms can, at least where not explicitly precluded by law, indirectly resist these demands by resisting the impulse to collect end user information gratuitously. In contexts where the law does preclude the platform adequately respecting user privacy (e.g. the PATRIOT Act's requirement that financial institutions collect and retain all sorts of information they have no legitimate need to know), the platform can at least warn users at collection time that this information is not adequately legally protected.

    The government cannot obtain what the platform does not store. Platforms that design their storage and business model to retain only the minimum necessary for the stated purpose will have less to give when the demand is served.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Nov 2017 @ 12:03pm

    Same problem - child welfare, psychiatrists

    The same problem exists with Psychiatric records and child welfare. Anything a parent discusses in counseling is fair game in juvenile court. There is absolutely no privacy.

    reply to this | link to this | view in chronology ]

  • identicon
    Personanongrata, 6 Nov 2017 @ 4:15pm

    Sunlight is Always the Best Disenfectant

    The Case Of Glassdoor And The Grand Jury Subpoena, And How Courts Are Messing With Online Speech In Secret

    Is there any justice to be found in secret courts, secret evidence and secret laws?

    As the so-called justice system in the US repeatedly makes abundantly clear is our least fortunate and most vulnerable persons are unable to afford the cost of adequate legal representation.

    In the US where over 70% of all working Americans live paycheck to paycheck does an individual have the financial wherewithal to challenge a grand jury subpoena?

    http://www.zerohedge.com/news/2017-08-24/heres-how-many-americans-are-living-paycheck-payc heck-hint-its-lot

    The US governments three tiered "justice" system is a tyrants wet dream.

    The first tier of US "justice" encompasses national security and state secrets doctrine where the pitch-dark underbelly of the state hides behind the "law".

    The second tier of US "justice" is comprised of the affluent and well credentialed where your bank account and connections can override the governments search for justice.

    The third tier of US "justice" is for our societies most vulnerable those least able to afford counsel those without political voice and rendered silent by default.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Nov 2017 @ 4:46pm

      Re: Sunlight is Always the Best Disenfectant

      >> "Is there any justice to be found in secret courts, secret evidence and secret laws?"

      A Grand Jury is not exactly secret; it's comprised of citizens, your PEERS in this realm where we're all equal before The Law. It's not a Star Chamber by unaccountable Royalty. Grand Juries can in theory investigate anything, because the persons on a Jury are The Law, representing all folk in common law. Information and charges are kept secret for two key purposes: to protect the innocent and not tip off the guilty to flee. IF the Jury decides there's likely enough evidence to convict, then charges are brought.

      You've just been bamboozled by this over-arguing, lousy-writing, corporatist lawyer into believing that the good strong privacy protection afforded to citizens by the Grand Jury process is in fact a danger.

      Rest of what you write is good yet off-topic!

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 6 Nov 2017 @ 4:24pm

    "Glassdoor" to be OPAQUE when it wants to be, eh?

    Corporation's very name shows the inherent contradiction in publishing to the world but trying to keep secrets too.

    One commenter has already stated it right: if you don't accept risk of becoming known, then don't publish.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 6 Nov 2017 @ 4:25pm

      Re: "Glassdoor" to be OPAQUE when it wants to be, eh?

      I don't think there's much to this case. But now I have questions:

      1) WHY are Internet corporations specially privileged?

      2) WHY are Internet users to be more protected than, say, chatting loudly in a bar? Can police NOT ask a bartender if knows names?

      3) WHY are Internet corporations expending lawyer time -- which we're constantly told is very costly -- to shield users? What's in this for the corporations? They ALL shell out as first line of defense lawyers...

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 6 Nov 2017 @ 4:25pm

        Re: Re: "Glassdoor" to be OPAQUE when it wants to be, eh?

        4) WHY is this particular... opinionist YET AGAIN trying to support special privileges for "it's on teh internets"? More than usual assuming there isn't good over-riding reason since from grand jury? Mentions special place in American law, then argues: "It's SECRET and PROTECTED because been openly PUBLISHED world-wide on teh internets! You CAN'T ask questions about crimes! Violates First Amendment!"

        5) **By the way, don't overlook possibility that this corporation's REAL interest may be in hiding that it's been astro-turfing!** We know nothing except that it's paying high for alleged "public interest".

        From this and prior articles I conclude opinionist's real motive is protecting corporations from ANY investigation. Opinions always just happen to suit corporate interests -- yet present NO clear danger to me, you, or these users, ever, it's just abstract FUD.

        reply to this | link to this | view in chronology ]

        • This comment has been flagged by the community. Click here to show it
          identicon
          Anonymous Coward, 6 Nov 2017 @ 4:29pm

          Re: Re: Re: "Glassdoor" to be OPAQUE when it wants to be, eh?

          Reminder: after Techdirt put in length limits for subject line and body, have to split up long posts -- at least from TOR. It's possible limits are no longer in place, but they were for sure; Techdirt wasted much of my time without least concern, and I'm not changing this practice without clear and unequivocal admission from Techdirt. I like this better, anyway!

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 6 Nov 2017 @ 6:59pm

            Re: Re: Re: Re: "Glassdoor" to be OPAQUE when it wants to be, eh?

            if you don't accept risk of becoming known, then don't publish

            You really, really suck at taking your own advice, don't you blue?

            reply to this | link to this | view in chronology ]

          • icon
            Gwiz (profile), 7 Nov 2017 @ 9:36am

            Techdirt wasted much of my time without least concern...

            Do you have any concern for all the resources Techdirt has wasted by publishing your inane ramblings over the years?

            reply to this | link to this | view in chronology ]

  • icon
    MyNameHere (profile), 7 Nov 2017 @ 12:33am

    Balancing and the real world

    The question of balancing between absolute anonymous posting runs soundly up against plenty of legal issues. In this case, it appears to be that the posters potentially know details of a crime which has happened, but are not giving that information to law enforcement. There is also the general question of slander and libel.

    Branzburg may actually be reasonable to apply here, for a very simple reason that Techdirt has pushed time and again: Everyone is a reporter. When you choose to right a report / story on Glassdoor (or anywhere else for that matter) you are reporting. It's perhaps going all the way to the end of the ball field to get a favorable judgement, but it doesn't appear to be far off.

    As someone else (who was censored) mention here, what about a conversation overheard in a bar? A grand jury could very easily request records for credit card transactions or even video of the bar to figure out who the person was. A bar and a website are, essentially, both privately owned businesses. The rules should apply more or less equally here.

    As for the chilling of speech, let's be fair here. If you are having second thoughts about muck slinging your previous company because you might face legal problems, perhaps chilling your speech is the best option. Hoping that a wafer thin "everything online is anonymous" concept will protect you is just wrong. To be honest, the internet has warmed speech to levels that really make no sense at times, perhaps a little chilling would be a good idea.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 7 Nov 2017 @ 3:02am

      Re: Balancing and the real world

      Right, put all the names under bright light so all companies know who is whistleblowing corporate malpractice. Also, grab them a blanket, they'll need when they go live on the streets because nobody else will ever hire them again.

      As for the rest, it's disguised as a reasonable comment but it greatly misses the point.

      reply to this | link to this | view in chronology ]

      • icon
        MyNameHere (profile), 7 Nov 2017 @ 3:50am

        Re: Re: Balancing and the real world

        OMG, really?

        Posting a bad review of your job on glassdoor or whatever isn't whistleblowing. Spend a while cruising the site, and you will find mostly malcontents who didn't fit into a company's culture ragging on about how they didn't get the right type of coffee machine in their department. It's laughable.

        Nobody wants to drag them into the light. Who cares, right?

        Now, the real whistle blowers generally aren't going to be posting their grand expose on a job review site. They are going to be emailing wikileaks or sending anonymous emails to CNN or whatever. If they have a story to tell, they will want to tell it. Again, nobody is dragging them into the light.

        However, if someone does happen to mention something that might prove to be have probative value or might help authorities with an ongoing investigation, would it not be good for police to be able to discreetly make contact with them?

        You know discreet - a gag order summons for personal information so they can try to find the person and talk to them - without dragging them into the light.

        Seems they went pretty far out of their way to keep this out of the light, but Glassdoor themselves seem intent on making it public. Perhaps you should get angry with them, they seem to be the one shining the bright lights around.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Nov 2017 @ 9:07am

          Re: Re: Re: Balancing and the real world

          How is a review on Glassdoor any different than a review on Amazon?

          reply to this | link to this | view in chronology ]

        • icon
          Ninja (profile), 7 Nov 2017 @ 10:43am

          Re: Re: Re: Balancing and the real world

          No? Talking about harassment, sexism or racism in your job isn't whistleblowing? Choose the term if you will but I think it matters. There may be excesses but it's hardly laughable.

          "Now, the real whistle blowers generally aren't going to be posting their grand expose on a job review site. "

          Why not? It's not malpractice in the sense the company is doing something criminal or the likes. It's the company being general asses towards their employees. Again, it's more mundane, it's about bad ergonomics, prejudice and stuff that happen often but aren't the thing CNN is going to reprt every time but that people looking for a job may want to know.

          "However, if someone does happen to mention something that might prove to be have probative value or might help authorities with an ongoing investigation, would it not be good for police to be able to discreetly make contact with them?"

          May, might, possibly. Read the article. It's about a system that's flawed and it's being misused by the government. It is exposing people yes. Or maybe you are too naïve and you believe there are no promiscuous relations between the private sector and the govt? Discreetly make contact was gold comedy.

          The problem is not making it 'public' it's making it known to the right parties. The problem is anonymity going out the window. As I said, you miss the point greatly.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Nov 2017 @ 4:06am

        Re: Re: Balancing and the real world

        It's funny how MyNameHere keeps insisting that the law doesn't allow anyone and everyone to count as a reporter or journalist, and only those who have been determined qualified should be allowed to...

        Up to the point where the courts allow it to feed their conviction rate, then he's suddenly all for it.

        horse with no name just hates it when due process is enforced.

        reply to this | link to this | view in chronology ]


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