- The American Conservative - http://www.theamericanconservative.com -

Big Brother Can Force Facebook, Yelp to Unmask Users

In a case that could crack the foundation of online freedom, Judge Diane J. Humetewa of the U.S. District Court for the District of Arizona ruled that the U.S Department of Justice (DOJ) can force a private company like Facebook, Yelp, or Twitter, to give up your identity simply because you expressed an opinion online.

This ruling occurred after the U.S Department of Justice (DOJ) obtained a grand jury subpoena [1]to make Glassdoor, an online job-review website, hand over the identities of eight people (the DOJ initially wanted 125 individuals’ IDs). The DOJ wanted their internet protocol (IP) addresses, credit card information, and other personal details so it could question these individuals and perhaps compel them to testify against a company under a DOJ fraud investigation.

So while Glassdoor boasts that they’ve “succeeded in protecting the anonymity of our members in more than 80 (civil suits)” by companies ticked off about something someone posted anonymously [2], this is a criminal case related to an unknown private company, and as they say, a different kettle of fish altogether.

Now, while one might be sympathetic with the feds’ need to do their job, forcing a private company to essentially ‘unmask’ the identities of its users would set a dangerous precedent—allowing Big Brother-style intrusions anytime the government wants to know who said what.

Glassdoor tried to avoid this constitutional fight by offering instead to post a notice on its site asking people to come forward to give information. Glassdoor has done that before. But that wasn’t enough for the DOJ.

To parry this attempt to unmask private citizens, Glassdoor, a California-based company, appealed the ruling to the Ninth Circuit Court of Appeals.

So this has become a constitutional fight. If this ruling stands then any comment you make on Facebook, Twitter or a review at Yelp could give the federal government the power to find out your real identity—even if you aren’t accused of committing a crime. Your personal information might then go public, as it could be available via a Freedom of Information Action (FOIA) request or other means, to your employer and anyone else. In such an environment, would members of a labor union pause before freely expressing their views to one another? Would a whistleblower decide not to give information “anonymously” because they might be exposed?

“We’d like a precedent set that respects American freedom in today’s world. The government is arguing they should be able to find out someone’s identity as long as it is not acting in ‘bad faith.’ We’re arguing that, legally speaking, the government is required to pass a ‘compelling interest’ test before being given the authority to demand people’s identities from a private company,” said Brad Serwin, general counsel at Glassdoor.

“We believe the lower court applied the wrong standard in placing the interests of government ahead of Americans’ protected free speech rights under the First Amendment. We hope to persuade the U.S. Ninth Circuit Court of Appeals to require a higher standard for these requests.”

Fourth Amendment protections don’t block this because the government is going after a private company (a third party) for this information, so, according to the Supreme Court’s established “third-party doctrine,” these people have “no reasonable expectation of privacy.” So yes, according to this judge, all those pseudonyms we see on social media and in comment sections below articles are no protection from snooping Big Brother if the government wants to know who is speaking anonymously.

Whatever the outcome of the appeal to the Ninth Circuit, the Supreme Court should weigh in eventually, as the legal precedents being cited in this case are old (before the internet age) and unclear. Glassdoor argues the Ninth Circuit should apply a “compelling/substantial connection test” from Bursey v. United States [3], a 1972 decision that involved members of the Black Panthers who were held in contempt after they refused to answer questions from a federal grand jury. The government, meanwhile, thinks that the test in Branzburg v. Hayes [4], a 1972 Supreme Court case that invalidated the use of the First Amendment as a defense for reporters summoned to testify before a grand jury, makes their case.

Outside of the constitutionally protected rights being affected here, there is a more practical reason for Glassdoor—and for any website that allows online reviews or comments—to fight such a ruling: It undermines their business model. Right now Glassdoor allows individuals to post incognito reviews of employers, which gives other people information about an employer they might be considering a job offer from. Glassdoor says it gets about 45 million unique visitors every month. But how many people would post a critical review of a current or former employer if they thought the government might reveal their identity, not because of any criminal fault of their own, but because the government has an interest compelling it to force them into the public light?

Maybe this Arizona judge is simply an outlier, as other judges have ruled differently on similar cases. In SunEnergy1, LLC, et al. v. Jeffrey Lawrence Brown [5], for example, the court ruled: “The content of the reviews on Glassdoor.com are such that it should be obvious to any reasonable person that the authors (all listed as current or former employees) are using the website as a vehicle to express their personal opinions about the company in question. Glassdoor.com is a website for employment and company evaluation—it is not a news website (e.g. WSJ.com or NYT.com) where there is an expectation of objective reporting and journalistic standards.”

Meanwhile, two organizations have already thrown their support behind Glassdoor’s fight for online privacy. Media Alliance, a media-advocacy group, said [6], “Anonymous online expression is a key tenet for many of our civil rights including labor organizing, political dissent and artistic freedom. Individuals should not have to fear the government will compel the disclosure of their identities from the platform of their choice without their consent when they have committed no crime.”

TechFreedom, a tech-advocacy group, said [6], “The government’s argument presumes there’s something nefarious about posting online anonymously. That’s absurd. People use sites like Glassdoor in order to speak candidly about their employers and provide valuable information to other inquiring users. They’re effectively the whistleblowers of the workplace. No one’s saying that law enforcement shouldn’t be able to unmask them—only that they should have to provide some showing of the need to do so.”

This isn’t a partisan issue. Both sides of the political spectrum understand that allowing the government to attain someone’s personal identity simply because they chose to speak anonymously online would surely chill speech.

Frank Miniter is the author of Kill Big Brother [7], a novel that shows how we can keep our freedom in this digital age.

10 Comments (Open | Close)

10 Comments To "Big Brother Can Force Facebook, Yelp to Unmask Users"

#1 Comment By EliteCommInc. On July 12, 2017 @ 12:56 am

Excuse me. In a brief read, I have to concur wit so many others. The third party rule is ridiculous. And it is ridiculous on its face.

One never gives up the right to privacy, it is part and parcel to right of expression or the right to kept silent. I suspect that in the post 9/11 environment the ruling is riding the coat tails of breaching privacy for security reasons.

I am not sure how this would pass muster to be considered by the court. Simply to make it easier for the government to prosecute cases. This has some very unsavory possibilities for the future in lots of arenas — for example, and and phone conversations become probable cause merely because of the potential of the exchange of criminal activity being shared. Personal revelations in counseling settings. The Constitution was designed against such potential abuses. It provides the government with a very peculiar arbitrary standard. That my communication unless soley between me and one other person is not protected. It renders the concept of speech meaningless, because the government by implication can compel silence from the mere fear that any communication is potential evidence in a criminal case. Parent teacher student conferences, etc. containing millions of dta sets of personal information that are not criminal becoming a public spectacle as the government ferrets through personal narratives to get their target.

Intended to be a persuasive defense of the third party rule, the following was chilling:

[8]

I am not even sure that the government knows how much power they currently have in spite of the constitution.

The above information was troubling to say the least.

#2 Comment By EliteCommInc. On July 12, 2017 @ 2:03 am

until today, I generally took for granted my right of privacy, implied though it may be.

And I am sure I m hyperventilating needlessly. But these are just viscerally knocking me for a loop.

[9]

just when I thought my mild paranoia was for naught.

#3 Comment By Jenna On July 12, 2017 @ 6:03 am

This headline is (perhaps unintentionally) amusing — because Facebook is the biggest big brother of them all.

#4 Comment By Bob Krantz On July 12, 2017 @ 10:30 am

On the other hand, imagine how much more civil, truthful, and rational the internet might be if posting required an open and verified identification.

#5 Comment By Anon. On July 12, 2017 @ 11:21 am

If u have something to say,first say who you are.Who wants to hear opinions of cowards. U either don’t know your name or you are ashamed of it.I believe anonymity encourages irresponsible conduct and all people, not just the government,should have the right to identify those who defame them.

#6 Comment By One Man On July 12, 2017 @ 4:23 pm

But, but, the Republicans are in charge of the government, and they are against Big Brother government, aren’t they?

Aren’t they?

#7 Comment By Mia On July 12, 2017 @ 5:55 pm

Two things come to mind as I read this. One is that the idea that anonymity allows people to say uncouth things they’d never say in person is baloney. I worked with a guy for years who was truly an ugly human being and acted trollish to your face every chance he got unprovoked…and I found out after a few years of working with him that he did this online and started flame wars that shut down threads. Same online as off.

The other thing is that there are some really ugly things happening in the corporate business world right now that I think tends to get a pass in the news for whatever reason. I mostly see the reality of the situation reflected only in reader comments on job websites I guess like Glassdoor, though I am unfamiliar with that particular platform.

But most relevant to this was something that started coming up in corporate training in my last few years at a job I held for nearly a decade and lost last year: they were pushing for employees to not only watch what they said online but in private about anyone in the company at all. It just seemed like their position was getting more and more restrictive on personal expression of any kind, even at home. Of course, they had the policy of being required to go to HR no matter what if you merely even overheard someone say something remotely offensive to you or anyone else in the company, even if it was said to someone halfway across the office and wasn’t meant in that way. They have a lot besides that to hide that I’m sure they don’t want former employees talking about, but that isn’t even the half of what is happening in the job market right now….

#8 Comment By Mia On July 12, 2017 @ 6:00 pm

“On the other hand, imagine how much more civil, truthful, and rational the internet might be if posting required an open and verified identification.”

Yeah, like nothing could go wrong with that.

[10]

There are good reasons to maintain anonymity, such as whistleblowing. Unless you want the official story to be the only one told.

#9 Comment By EliteCommInc. On July 13, 2017 @ 1:14 pm

“If u have something to say,first say who you are.Who wants to hear opinions of cowards . . .’

Allow me to speak from experience. N other place suggests the value of self protection more than the internet. For someone as conservative as I am, the internet is a dangerous place. As fr back as 1997 people I did not know would pop up on my computer screens. I used t think that maybe I was a really just prone to misplacing things. Until I had to face he fact that strangers were entering my private spaces; my car, my home. We had a strange break in many years ago. For a long time I just figured I was imagining things. But as it turns out – no, a concerted effort was being layed against me and my space. I have been an instructor a long time in various settings. As a conservative, I hold opinions tat are not mainstream and would be considered by many hateful, bigoted or prejudiced. Some people use heir anonymity for unscrupulous reasons. But most people use the same for protection against the unscrupulous. I hate to sound cryptic but while violence is down. the number of vicious mean spirited people are up. Up until a woman I was close to began sharing some very peculiar tales, and I began reading stories by stable intelligent successful people who had their lives shredded by unscrupulous people I kept mum because it sounds unhinged.

But for whatever reason some people run into these more than others. And sometimes unbeknownst to them there’s a lot at stake. And making their lives a misery is the very point – to damage their credibility, their character any number of agendas. I was in a meeting when it the word was shared that our educational system’s personnel dept had an entire game plan for getting rid of people, for no reason that they didn’t play along. There’s a lot of very strange ethics, even common good, for mucking up people’s lives. Maybe you were just a “jerk” to the wrong person and by jerk I don’t mean anything aside from the vie of that person. It used t be said that a conspiracy requires a lot of people to cover up. But that is just not true anymore if it ever was. It only takes one person in a position to enlist others to do X and the doers may have no idea of the agenda or even that what they are doing is part of something larger. I have been thinking about my open opposition to immigration for the last twenty years. How many classes, conferences, meeting, counseling sessions, internet conversations, flirtations, dates, emails, in which I shared views that others might consider dangerous — national heath care schemes, not on a bet.

I don’t have issues with people acting honorably and being called out when they don’t. But I am unwilling to trash the Constitution, just yet in order for sanity and cops and robbers about offensive comments. Unfortunately, the moderator policy is rife with its own biases and pitfalls. TAC is one of the best at moderating and sometimes things get by them intentionally or by accident. When I think a sight is overboard, one has the choice to stop going to the sight. But changing addresses, phone numbers, names, etc. If someone has a beef they want to make live — that’s a tough order.

Given what we have seen from government in this regard — neither the FBI, DEA, or local agencies are free from playing fast and loose with the truth. You betcha there are a dozen people I would love to see deposed on any number of issues, however

we do have a Constitution that works fairly, that has already seen it fair share of protections shredded — and more that we know not. That level in the power of men and women whose intentions are honorable but tactics unscrupulous —

not on a bet.

To this moment I will not admit that my car issue was merely is a car. Like thousands of people, I will pretend, but make no mistake, what you are suggesting is more trouble than the trouble we have. It’s member of the government (law enforce) in whom we bestow great power and trust. Once you are a witness to that abuse, you never go back to ignorance and perhaps no one should, though I long for it.

#10 Comment By Deggjr On July 15, 2017 @ 9:35 pm

Anon.: If u have something to say,first say who you are. etc.

That’s awesome.