A federal appeals court has issued an alarming ruling that significantly erodes the Constitution’s protections for anonymous speakers—and simultaneously hands law enforcement a near unlimited power to unmask them.
The Ninth Circuit’s decision in U.S. v. Glassdoor, Inc. is a significant setback for the First Amendment. The ability to speak anonymously online without fear of being identified is essential because it allows people to express controversial or unpopular views. Strong legal protections for anonymous speakers are needed so that they are not harassed, ridiculed, or silenced merely for expressing their opinions.
In Glassdoor, the court’s ruling ensures that any grand jury subpoena seeking the identities of anonymous speakers will be valid virtually every time. The decision is a recipe for disaster precisely because it provides little to no legal protections for anonymous speakers.
EFF applauds Glassdoor for standing up for its users’ First Amendment rights in this case and for its commitment to do so moving forward. Yet we worry that without stronger legal standards—which EFF and other groups urged the Ninth Circuit to apply (read our brief filed in the case)—the government will easily compel platforms to comply with grand jury subpoenas to unmask anonymous speakers.
The Ninth Circuit Undercut Anonymous Speech by Applying the Wrong Test
The case centers on a federal grand jury in Arizona investigating allegations of fraud by a private contractor working for the Department of Veterans Affairs. The grand jury issued a subpoena to Glassdoor, which operates an online platform that allows current and former employees to comment anonymously about their employers, seeking the identities of eight accounts who posted about the contractor.
Glassdoor challenged the subpoena by asserting its users’ First Amendment rights. When the trial court ordered Glassdoor to comply, the company appealed to the U.S. Court of Appeals for the Ninth Circuit.
The Ninth Circuit ruled that because the subpoena was issued by a grand jury as part of a criminal investigation, Glassdoor had to comply absent evidence that the investigation was being conducted in bad faith.
There are several problems with the court’s ruling, but the biggest is that in adopting a “bad faith” test as the sole limit on when anonymous speakers can be unmasked by a grand jury subpoena, it relied on a U.S. Supreme Court case called Branzburg v. Hayes.
In challenging the subpoena,…