Ninth Circuit Lets Us See Its Glassdoor Ruling, And It's Terrible

from the making-secret-jurisprudence-public-precedent dept

Well, I was wrong: last week I lamented that we might never know how the Ninth Circuit ruled on Glassdoor's attempt to quash a federal grand jury subpoena served upon it demanding it identify users. Turns out, now we do know: two days after the post ran the court publicly released its decision refusing to quash the subpoena. It's a decision that doubles-down on everything wrong with the original district court decision that also refused to quash it, only now with handy-dandy Ninth Circuit precedential weight.

Like the original ruling, it clings to the Supreme Court's decision in Branzburg v. Hayes, a case where the Supreme Court explored the ability of anyone to resist a grand jury subpoena. But in doing so it manages to ignore other, more recent, Supreme Court precedents that should have led to the opposite result.

Here is the fundamental problem with both the district court and Ninth Circuit decisions: anonymous speakers have the right to speak anonymously. (See, e.g., the post-Branzburg Supreme Court decision McIntyre v. Ohio Elections Commission). Speech rights also carry forth onto the Internet. (See, e.g., another post-Branzburg Supreme Court decision, Reno v. ACLU). But if the platforms hosting that speech can always be forced to unmask their users via grand jury subpoena, then there is no way for that right to ever meaningfully exist in the context of online speech.

Yet neither of these more recent Supreme Court decisions seems to have had any impact on either the district court or Ninth Circuit's thinking. Instead both courts seem to feel their hands are tied, that in the 1970s the Supreme Court set forth, once and for all, the rule that no one can ever resist federal grand jury subpoenas, except in very limited circumstances, and that this ruling was the final word on their enforceability, no matter what the context. But as I wrote in the previous post, what the Supreme Court said in Branzburg about the enforceability of grand jury subpoenas only related to those that arose from a specific context, journalists shielding sources, and the only question before the court then was whether journalists, as journalists, had the ability to refuse them. The Supreme Court never considered whether there might be any other set of circumstances where grand jury subpoenas could be resisted. In Branzburg the Supreme Court had only considered the question with respect to journalists.

In fact, to make Branzburg apply to Glassdoor, the Ninth Circuit had to try to squeeze Internet intermediaries like Glassdoor into the shoes of reporters and make them seem like one and the same, even when they are not:

Although Glassdoor is not in the news business, as part of its business model it does gather and publish information from sources it has agreed not to identify. It argues that “[a]nonymity is an essential feature of the Glassdoor community,” and that “if employees cannot speak anonymously, they often will not speak at all,” which will reduce the availability of “information about what it is like to work at a particular job and how workers are paid.” In other words, forcing Glassdoor to comply with the grand jury’s subpoena duces tecum will chill First Amendment-protected activity. This is fundamentally the same argument the Supreme Court rejected in Branzburg.

With all due respect to the Ninth Circuit panel, this is not fundamentally the same argument the Supreme Court rejected in Branzburg. As I wrote last week, to view the role of an intermediary platform as the same thing as an intermediary journalist is to fundamentally misunderstand the role of the intermediary platform in intermediating information. It also fundamentally misunderstands the First Amendment interests at stake. This case isn't about the press-related First Amendment rights at issue in Branzburg; they are the speech-related First Amendment rights of online speakers. And it's not the platform's First Amendment interests that Glassdoor is primarily trying to vindicate; it is the interests of the platform's users. Yet here, too, the Ninth Circuit panel misunderstands those interests when it dismisses out of hand the idea that they might have any right not to be unmasked:

Furthermore, Branzburg makes it clear that Glassdoor’s users do not have a First Amendment right not to testify before the investigating grand jury about the comments they initially made under the cloak of anticipated anonymity. See id. at 695 (“[I]f the authorities independently identify the informant, neither his own reluctance to testify nor the objection of the newsman would shield him from grand jury inquiry . . . .”). Therefore, Glassdoor cannot refuse to turn over its users’ identifying information on the grounds that it is protecting its users’ underlying rights.

"Anticipated anonymity" is a pretty grotesque way of describing a constitutional right people expected to be protected by when they chose to speak online. And it suggests a misreading of Branzburg, which never considered speech interests that were truly analogous to those of Internet platform users. Even if there's no First Amendment right to speak anonymously with a reporter it does not follow that there is no First Amendment right to speak anonymously online at all.

But that's the upshot to this decision: people who wish to speak anonymously online, in any capacity, won't be able to. They will forever be vulnerable to being unmasked by any federal criminal investigation, just so long as the investigation is not being done in bad faith. Nothing else can provide any sort of check on these unmasking demands, regardless of any other interest in play – including those of innocent speakers simply trying to avail themselves of their First Amendment right to speak anonymously, and all those who benefit from that speech.

This is a pretty stark result, and one that stands to affect Internet speakers everywhere. Not only does it threaten those anywhere a grand jury within the Ninth Circuit will be able to reach, but it will serve as persuasive authority governing the enforceability of subpoenas from grand juries in other circuits. It's also one that stands to have this dramatic effect after having been whipped up in secret, with a hidden docket and adamant refusal to accept amicus support. (Although two amici are listed in the caption, it does not appear that either brief was ultimately accepted by the court, much less actually read and considered.) Like anyone who insists on going it alone, without the help of their friends, the results of that obstinate independence have been predictably disastrous. Friends don't let friends inadvertently undermine the First Amendment, and I wish the court had let those of us able to help it see the full implications of this ruling be that friend.


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  • icon
    Dan (profile), 15 Nov 2017 @ 10:57am

    But that's the upshot to this decision: people who wish to speak anonymously online, in any capacity, won't be able to.

    Sure they will--if the places where they're speaking don't gather the information in the first place. But most sites gather far more information than they have any legitimate need for. And having done so, they can be forced to reveal it, and they can also inadvertently leak it.

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

    • icon
      Bergman (profile), 16 Nov 2017 @ 3:47am

      Re:

      It would probably be too much to expect a scrupulous individual at Glassdoor to, acting alone, delete those files in an unrecoverable way.

      It's too bad real patriotism seems to have died out.

      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, 15 Nov 2017 @ 10:58am

    Again, this is GRAND JURY, a key component of American democracy,

    OF WE THE PEOPLE, therefore NO mere court of public servants can logically limit it.

    @ "Well, I was wrong: last week" -- You're always wrong that I've seen. So your whole rant last week about secret courts was HOOEY.

    That's all which is worth stating here, since you clearly don't agree with the essentials of the American Grand Jury system.

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

  • identicon
    Anonymous Coward, 15 Nov 2017 @ 11:29am

    "it does gather and publish information from sources it has agreed not to identify."

    just about every website on the internet does this in one capacity or another.

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

  • identicon
    stine, 15 Nov 2017 @ 11:40am

    what does this say about

    susbscribing to an online outlet using an alias? will they be able to 'find me through seven proxies'???

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

    • identicon
      Anonymous Coward, 15 Nov 2017 @ 12:03pm

      Re: what does this say about

      Not if you have Norton, then they can't hack you or nuthin

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

    • identicon
      Anonymous Coward, 15 Nov 2017 @ 12:12pm

      Re: what does this say about

      Seven proxies? That sounds very painful to manage, like maintaining the seven gates of hell. If you don't do it yourself, then you need to trust seven other gatekeepers. Better use Tor with the paranoid settings.

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

  • identicon
    Anonymous Coward, 15 Nov 2017 @ 11:57am

    Heaven forbid any information detrimental to corporations be disseminated - the horror!

    Why not simply respond to accusations? They could have an official accusation response team who puts together the data and facts of the case and .... oh wait ... you mean they actually did what they are accused of doing - well then shut down that source immediately!

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

  • identicon
    Uproarious Coward, 15 Nov 2017 @ 1:18pm

    Grand Copout

    The grand jury system has been long abused, but I haven't got a clue how to replace it.

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

    • identicon
      Anonymous Coward, 15 Nov 2017 @ 2:01pm

      Re: Grand Copout

      It is abused because we allow it to be.

      Part of a properly functioning American Government is the active and knowledgeable participation of its citizens.

      Ignorance remains in abundance. Since most people are ignorant, they are easy to game and abuse! And judging by your desire to "replace it" you can be counted among the ignorant.

      Become a fully informed Juror so you can stop perpetuating the cycle of ignorance and stupidity!

      http://fija.org/

      Serving as a "Fully Informed" Juror is the single most patriotic thing you can do for your country... even greater than military service!

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

  • icon
    That Anonymous Coward (profile), 15 Nov 2017 @ 3:09pm

    My idea about not letting them rule on things invented after they took office & have no first hand knowledge of isn't looking so bad now is it?

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

  • identicon
    Anonymous Coward, 15 Nov 2017 @ 6:27pm

    The DOJ acting in good faith?

    I have no idea how the 9th District could suspect they would. With the current administration going after someone that laughed during the perjurist Jess Sessions Senate hearing.

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

  • identicon
    Anonymous Coward, 15 Nov 2017 @ 6:38pm

    The solution is not to respond to those kinds of subpoena regardless. If no one responds to them what good are they? A few may go to jail in the interim. So? That's no reason to give in to everything. They can't put everyone in jail.

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

  • icon
    MyNameHere (profile), 16 Nov 2017 @ 2:20am

    I am not surprised that you are disappointed with the ruling, as the court saw through pretty much every bit of smoke and mirrors there was out there.

    First and foremost, is the concept of anonymous posting. I know for a fact that here on Techdirt, you track IP addresses, and use things like cookies and other commonly shared information to track your users, even when they post anonymously. There is potential that members (at least certain ones) are able to access this data.

    Second, this is the internet. To get your message from point A to point B, you pass it through a number of hands. To confirm that your message was received, the reply has to be able to find the way back to you. So no matter what your anonymous status is only as safe as the websites (and intermediaries) you are using.

    Third, and most important: The court clearly has figured out that a site that collects information and publishes is effectively a publisher, and not just a seller of photocopy machines or megaphones. That is a pretty significant ruling, and one that shows that the old "just a service" or "just a place people post" standard is perhaps losing it's standing.

    Just like a lot of other things in the last little while, it appears that the legal system is slowly but surely catching up to the online world. Even Tim Berners-Lee can see it coming...

    https://www.theguardian.com/technology/2017/nov/15/tim-berners-lee-world-wide-web-net-neutr ality

    Enjoy!

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


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