Free speech-related privacy rights of book buying (and reading?) records

The original appearance of this entry was in Danny Weitzner - Open Internet Policy

Last week, a Federal Magistrate in Wisconsin published an important opinion articulating limits on the government’s power to demand access to records of individuals’ book-buying activity held by 3rd parties such as Amazon.com. The case (IN RE GRAND JURY SUBPOENA TO AMAZON.COM DATED AUGUST 7, 2006) arose in the course of an FBI/IRS investigation of an individual who sells lots of used books on Amazon and was suspected of large-scale tax evasion. In order to develop the case, the Federal investigators acting through a grand jury:

directed Amazon to provide virtually all of its records regarding D’Angelo, including the identities of the thousands of customers who had bought used books from D’Angelo. The government subsequently chose to reduce this scope of this request to the identification of 120 book buyers, 30 per year for the four years under investigation. The government’s plan was for special agents of the FBI and IRS to contact these 120 used book buyers in an attempt to develop concrete evidence necessary to lay a transactional foundation for criminal charges of fraud and tax evasion against D’Angelo. The government does not suspect Amazon or D’Angelo’s customers of any wrongdoing, nor does it consider them victims of D’Angelo; they simply are bricks in the evidentiary wall being erected by the grand jury.

Rather than comply with the subpoena, Amazon exercised its legal right to move the government request ‘quashed’ as it allowed under law. Responding to this motion to quash, the Magistrated acted to to protect the First Amendment rights of the buyers whose identity would be revealed if Amazon responded to the subpoena. The Magistrate concluded that “the government is not entitled to unfettered access to the identities of even a small sample of this group of book buyers without each book buyer’s permission.” Hence, he ordered that a special procedure by which those Amazon customers who bought from the suspect during the relevant time period would be asked in an a manner that did not reveal their identity whether they would be willing, on a voluntary basis, to have their records turned over to the government.

In the end, the government withdrew the subpoena altogether, telling the Wisconsin State Journal that they were able to get names by analyzing the suspects seized computer.

Beyond the First Amendment rationale offered in this case, more striking is the Magistrates assessment of the public mood with respect to privacy in general in the wake of the Patriot Act and warrentless wiretapping activity.

…[I]t is an unsettling and un-American scenario to envision federal agents nosing through the reading lists of law-abiding citizens while hunting for evidence against somebody else. In this era of public apprehension about the scope of the USAPATRIOT Act, the FBI’s (now-retired) “Carnivore” Internet search program, and more recent highly-publicized admissions about political litmus tests at the Department of Justice, rational book buyers would have a non-speculative basis to fear that federal prosecutors and law enforcement agents have a secondary political agenda that could come into play when an opportunity presented itself. Undoubtedly a measurable percentage of people who draw such conclusions would abandon online book purchases in order to avoid the possibility of ending up on some sort of perceived “enemies list.”

While cautioning (in a footnote) that he did not formally recognize these fears to be well-founded, none the less he felt he had to act to limit government power in this case because:

…if word were to spread over the Net–and it would–that the FBI and
the IRS had demanded and received Amazon’s list of customers and their personal purchases,the chilling effect on expressive e-commerce would frost keyboards across America. Fiery rhetoric quickly would follow and the nuances of the subpoena (as actually written and served) would be lost as the cyberdebate roiled itself to a furious boil. One might ask whether this court should concern itself with blogger outrage disproportionate to the government’s actual demand of Amazon. The logical answer is yes, it should: well-founded or not, rumors of an Orwellian federal criminal investigation into the reading habits of Amazon’s customers could frighten countless potential customers into canceling planned online book purchases, now and perhaps forever.

There are two very important caveats to add, however. First, this opinion is only that of one Federal magistrate in one district court. It is not binding on any other part of the country and there are often widely divergent opinions from magistrates. Second, we don’t know who this reasoning might apply to a subpoena issued by a private party in civil litigation (say a divorce lawyer looking to impugn the integrity of an opposing spouse by revealing unsavory reading habits). Finally, as the government dropped its request altogether, this case will never be heard by any other court to be either affirmed or overturned. So, it will hang out there as one view of the privacy problems associated with subpoenas of private information held by 3rd parties.

-not clear how it applies to civil subpoenas in privacy litigation