Online Reviewers Face Feds Over Right to Stay Anonymous
Online Reviewers Face Feds Over Right to Stay Anonymous
U.S. seeking identities of commenters critical of a veterans health-care company under investigation
By Jacob Gershman and Joe Palazzolo June 16, 2017 11:05 a.m. ET
The Justice Department is clashing with career site Glassdoor Inc. over the company’s refusal to identify users who posted anonymous employee reviews of a veterans health-care company under federal investigation.
The First Amendment standoff—the existence of which was disclosed in court papers unsealed this week—has opened a new front in the national debate over online anonymity.
The right of online reviewers and commenters to stay anonymous has been tested in civil cases, typically ones dealing with defamation claims.
The case involving Mill Valley, Calif.-based Glassdoor is different: The party seeking the user information isn’t an aggrieved plaintiff but the federal government deploying the power of a criminal grand jury subpoena. The dispute pits the right of an internet poster to remain anonymous against the government’s interests in finding potential witnesses to a crime.
Glassdoor, founded in 2007, is a jobs-and-recruitment marketplace that offers a forum for users to critique their workplace, giving job seekers a view from the inside of their prospective employers.
The confrontation began in early March, when federal prosecutors in Arizona sent Glassdoor a grand jury subpoena seeking the names and IP addresses of users who had posted comments about TriWest Healthcare Alliance, a Phoenix-based company that administers veterans health-care programs.
The government contends it has no other way to identify employees who might have useful insights into TriWest’s business practices.
Glassdoor says the government’s interests don’t justify an “infringement on the First Amendment right of Glassdoor’s users to speak anonymously” that could discourage other reviewers and readers from using the site.
TriWest’s name is redacted from the court documents, but the filings contain enough information to identify the contractor. The investigation is looking at possible wire fraud and misuse of government funds, according to court documents.
Elaine Labedz, vice president of communications for TriWest, said the company hasn’t been contacted by government investigators and declined to comment on “anonymous postings on social media.”
Cosme Lopez, a spokesman for acting U.S. Attorney Elizabeth Strange in Arizona, declined to comment on the nature of the investigation or its target. “Our investigation is at the early stages,” he said.
With the subpoena, prosecutors sought to identify and speak with a handful of employees who posted comments about the contractor, describing them in court documents as “witnesses to potential unlawful conduct.”
Outside lawyers retained by Glassdoor said the company still wouldn’t turn over the information and filed a motion in Arizona federal court to quash the subpoena.
They argue in court papers that the government lacks a compelling need to identify the users. Revealing them, company lawyers said, “may have a broader chilling effect on protected expression.”
Prosecutors characterize the information sought as “apolitical” commercial speech that doesn’t warrant special First Amendment protection.
In court papers, the Justice Department compared Glassdoor to a news outlet resisting disclosure of the identity of a confidential source. In both cases, prosecutors argued, there is limited First Amendment protection. The government cited a landmark Supreme Court ruling from 1972 that held that the First Amendment “does not relieve a newspaper reporter of the obligation…to respond to a grand jury subpoena.”
U.S. District Judge Diane Humetewa of Arizona agreed with the government.
“Glassdoor’s users are not a political association,” Judge Humetewa wrote in an opinion issued in May and unsealed Monday. “Glassdoor, like any newsman asserting a privilege on behalf of its sources, must respond to the grand jury subpoena,” she said.
Glassdoor has appealed her ruling to the Ninth U.S. Circuit Court of Appeals in San Francisco, where the case will be briefed and argued.
In a statement, Glassdoor objected to the judge’s First Amendment analysis, calling an individual’s right to anonymous speech “a cornerstone of our society that inherently helps others and should be protected.”
American University law professor Jennifer Daskal, who writes on issues related to privacy and criminal law, called the law around the government’s ability to lift the veil on anonymous online speech “pretty unresolved.”
She said the case is about the right of “people to speak anonymously on a range of a different websites without running the risk of revealing their identity to the government.”
Glassdoor has successfully challenged attempts by private plaintiffs to unmask the identities of anonymous reviewers in connection with defamation lawsuits. Courts held that the First Amendment concerns, or a lack of merit in the lawsuits, weighed in favor of protecting the reviewers’ identities.
The court documents contain few details about the investigation of TriWest. Prosecutors said in a legal brief that they wanted to speak with employees about “practices that maximize profit numbers.”
The court filings contain a snippet of a Glassdoor review posted on Nov. 30, 2015, in which an employee of the contractor wrote that “all they care about is numbers.”
The Wall Street Journal located comments by a TriWest employee published on Glassdoor on that same date. “Everything is supposedly ‘for the Veterans’ but all they care about is numbers,” the reviewer wrote.
The Department of Veterans Affairs awarded contracts valued at more than $4 billion to TriWest in 2013 and 2014 to administer programs that connect veterans to medical services outside the VA system, helping them avoid long wait times or having to travel long distances.
Congress authorized the $10 billion Veterans Choice Program after reports surfaced of veterans dying while waiting for medical care. President Donald Trump signed a law extending the program in April.
The Veteran Affairs Office of the Inspector General wrote in a January report that the program had done little to reduce wait times and was difficult for veterans to navigate.
Ms. Labedz, the TriWest spokeswoman, said the inspector general report was “outdated.” The company has scheduled more than two million first-time appointments for veterans, with an average wait time of 13 days, she said.