Originally posted on Techdirt November 15, 2017.
Well, I was wrong: last week I lamented that we might never know how the Ninth Circuit ruled on Glassdoor’s attempt to quash a federal grand jury subpoena served upon it demanding it identify users. Turns out, now we do know: two days after the post ran the court publicly released its decision refusing to quash the subpoena. It’s a decision that doubles-down on everything wrong with the original district court decision that also refused to quash it, only now with handy-dandy Ninth Circuit precedential weight.
Like the original ruling, it clings to the Supreme Court’s decision in Branzburg v. Hayes, a case where the Supreme Court explored the ability of anyone to resist a grand jury subpoena. But in doing so it manages to ignore other, more recent, Supreme Court precedents that should have led to the opposite result.
Here is the fundamental problem with both the district court and Ninth Circuit decisions: anonymous speakers have the right to speak anonymously. (See, e.g., the post-Branzburg Supreme Court decision McIntyre v. Ohio Elections Commission). Speech rights also carry forth onto the Internet. (See, e.g., another post-Branzburg Supreme Court decision, Reno v. ACLU). But if the platforms hosting that speech can always be forced to unmask their users via grand jury subpoena, then there is no way for that right to ever meaningfully exist in the context of online speech.