Have you ever posted an anonymous review on a website? If you did, you probably expected your true identity would remain secret to everyone except perhaps the website's administrators, and they would keep that information safely confidential. That secrecy might seem especially important to you if you were posting a review of a current or former employer on the anonymous review site Glassdoor.

It turns out that your right to remain anonymous was a mere figment of your imagination. A federal judge in the Arizona District Court in Phoenix made that decision back in April, in a secret proceeding that only recently became known.

Glassdoor found itself in court because of a federal investigation into a certain company's contract practices. We don't know which company--its anonymity is being preserved by the court--but given which court is deciding this, it might be somewhere in Arizona. The feds subpoenaed Glassdoor for the names of more than 100 anonymous reviewers who had posted reviews about the unnamed company. Not surprisingly, Glassdoor refused to comply.

Federal investigators then offered a compromise: They'd be satisfied with the identities of only eight reviewers. These reviewers were not themselves suspected of wrongdoing, but they were important witnesses to the alleged crimes of their employer. Glassdoor responded with its own compromise offer: It would contact the eight people in question, let them know about the investigation, and ask their permission to share their identities with the government. It would give the feds the names of any reviewers who said it was OK to do so. That wasn't good enough for the investigators, so Glassdoor went to court to quash the subpoena.

Glassdoor argued in part that the court should grant anonymity as a matter of free speech--just as it had done in the 1972 case Bursey v. United States. At that time, an appeals court rejected the government's call to compel the staff of the Black Panthers' newspaper to answer questions during an investigation of that political group. But now, Federal Judge Diane Humetawa in the Arizona District has found that Glassdoor reviews do not have the same protections as the Black Panthers did back then. Employee reviewers do not have the right to anonymity because their comments are not political speech, she decided, and they are therefore not protected by the right guaranteed in the Bursey decision to "anonymously print and distribute critiques of the government."

Behind closed doors.

First Amendment groups are crying foul, and many of them want to contribute amici briefs in the case. (Amici briefs are briefs from people or organizations who are not parties to a legal dispute but have a legitimate interest in its outcome.) But the Ninth District has not only closed the door to all amici briefs, at least for now, it has chosen to keep the entire proceedings secret. The only reason we know about Humetawa's April decision is that Glassdoor, with its federal opponents' agreement, unsealed the briefs that both parties filed about the subpoena.

The consumer rights and advocacy group Public Citizen was particularly aghast at the court's insistence on complete secrecy--which neither party in this legal battle has asked for. Longtime Public Citizen attorney Paul Alan Levy writes:

Given that so much of the docket in the District of Arizona remains unsealed, it is hard to see what legitimate secrecy interests are preserved by the requirement that the merits briefs of the parties be kept entirely secret--and will oral argument be held behind doors as well? And without real benefits from secrecy, the concealment of the arguments that persuade the Court of Appeals to reach its result in this significant First Amendment case will result in a serious loss of the sort of public accountability that the First Amendment and common law right of access to judicial records is intended to preserve.

It's all pretty confusing, and maybe scary too if you've ever written an anonymous review online and cared about it remaining anonymous. Unfortunately, that decision is being made behind closed doors and we may not know anything about it until well after the decision has been made.

Meantime, next time you post an anonymous review or comment, make sure to include a sentence or two lambasting an elected official, or maybe even a federal judge. That way, you'll be anonymously distributing a critique of the government. It may be your only hope.

Published on: Jul 21, 2017