Two Limits to Online Privacy
by George H. Pike
Until I began my research for this column, I did not know of the historical popularity of anonymous writers. According to an article in the Los Angeles Times, as many as 80% of novels published in Britain between 1750 and 1790 were published anonymously. Many of us learned in our civics classes about the pre-Revolutionary War anonymous posters and leaflets challenging British rule, which played a role in advocating independence for the U.S. The Federalist Papers, a series of writings drafted by Alexander Hamilton, James Madison, and John Jay that promoted the ratification of the Constitution, were originally published under a pseudonym. And I certainly recall a few anonymously or pseudonymously published “steamy” novels from my youth that my mother didn’t want me to read.
There is a tension, however, that is associated with anonymity. The right to be anonymous is recognized and protected by the First Amendment. In a 1995 elections case decision, the U.S. Supreme Court described anonymity as a “shield from the tyranny of the majority” and noted that it “exemplifies the purpose behind the Bill of Rights and the First Amendment.” Whistleblowers often need the protection of anonymity to prevent retaliation, and reporters often rely on anonymous sources to document governmental, business, and political failings.
However, anonymity is often an essential part of criminal activities and is frequently part of harassment and bullying. The First Amendment right to be anonymous is restricted by these considerations, as it does not extend to criminal activity and can be limited when anonymous speech affects the rights of others.
The internet has created a completely new order for anonymity. Entire business models such as forums, review sites, and social media are often built on the ability to communicate anonymously, at least on the surface. These sites offer the communications and posts of users whose identities are hidden from their readers behind pseudonyms and usernames. However, the sites will often require users to identify themselves through the process of registering to use their services.
Visible Behind the Glassdoor
Two recent court decisions involving these business models are showing just how limited the right to online anonymity can be. Glassdoor is one such business, which markets itself as one of “fastest growing jobs and recruiting [web]sites.” For employers, Glassdoor will post vacancies and open positions and provide a space for companies to “promote their employer brand to candidates researching them and advertise their jobs to ideal candidates.” Also central to Glassdoor’s business model are “company reviews, CEO approval ratings, salary reports, interview reviews and questions” posted by employees. They are provided by registered users whose identities are known to Glassdoor, but are hidden in the online posts.
Glassdoor found itself subject to a federal court subpoena—not for anything it said or did or even anything its anonymous users said or did, but because of a federal fraud investigation of a company mentioned in several posts. While investigating a government contractor for possible fraud, investigators sought identifying information from eight Glassdoor users who posted about the contractor. The information provided in the posts was critical of the contractor and contained some statements about possible unethical actions.
Glassdoor challenged the subpoena, but in a November 2017 decision, a federal appellate court held that it must provide the identifying information (law.justia.com/cases/federal/appellate-courts/ca9/17-16221/17-16221-2017-11-08.html). The court ruled that citizens, including those who post anonymously online, are obligated to cooperate with investigations as long as they are being conducted in good faith, and the users do not have a right not to testify under the First Amendment. The court also indicated that because Glassdoor’s terms and conditions included language stating that identifying information may be disclosed “to comply with relevant laws or to respond to subpoenas,” the users do not have a “reasonable expectation of complete privacy.”
Beyond Bad Reviews on Yelp
A second case involved a review of a tax return service posted by a Yelp user. The review was very critical of the service and included an assertion that the bill was “way more than their quote,” that the return was so “sloppy” it needed to be redone, and that “if you dare to complain get ready to be screamed at, verbally harassed and threatened with legal action.” The owner of the service believed that the review was false and defamatory and issued a subpoena to Yelp seeking “any and all documents that would identify the Yelp user” who posted the review. Yelp refused and moved to quash the subpoena.
In a California appeals court decision, Yelp was ordered to disclose the information (courts.ca.gov/opinions/documents/G054358.PDF). The court indicated that the user’s First Amendment right to express anonymous opinions was protected, but not when “vigorous criticism descends into defamation.” It noted that while opinions are entitled to First Amendment protection, when an opinion implies a “false assertion of fact,” it may be considered defamation.
By way of example, the court looked at the review’s statement that the bill was more than the quote and suggested that the statement implied there was no justification for the bill. The tax service owner asserted that the bill was justified (due to the complexity of the work involved) and that the implication in the post was defamatory. The review’s statement that complaining would lead to being screamed at, harassed, and threatened was found to carry the implication that the user had been treated that way. If false, the court said, it would be defamation. Because of these findings, the court ordered Yelp to disclose identifying information about the poster.
The takeaway is that anonymity, like many of our “rights,” is not absolute. Expressing your opinions is protected, but if you base your opinions on demonstrable falsehoods to the point of defamation, they are not protected. If your opinion is factually accurate, but asserts wrongdoing on the part of another, the government’s right to investigate that wrongdoing may override your right to anonymity. The internet may seem to be an incredible bastion of anonymity, but never forget that somebody knows who you are and may be compelled to disclose that information.
This article originally appeared in the January/February issue of Information Today as "Not So Anonymous After All."