How would you feel if you bought a book through Amazon and then found out your book purchasing records had been turned over to the FBI? Would it make you think twice about shopping at Amazon in the future? Amazon think so, and it turns out, so does a federal judge (order, PDF).
The FBI is going after one Robert B. DeAngelo, a former Madison, WI, official who has been indicted on tax evasion and mail and wire fraud charges, Cnet's Declan McCullagh reports. It seems DeAngelo ran a healthy little used book and CD business out of city offices. He kept his costs low by using city computers and city warehouses.
So to get the goods on DeAngelo, the FBI wants to talk to some of his customers. Not that they suspect the customers were involved or were victimized by the scheme, but to get information to nail DeAngelo. So they issued (or rather the grand jury issued) a subpoena to Amazon for information on every one of DeAngelos customers. Eventually the subpoena was changed to 120 customers, 30 for each year under investigation.
Amazon felt the request infringed on their customers' First Amendment privacy rights and moved to quash the subpoena. Specifically Amazon argued you have a First Amendment right to keep your book-buying history private. The government argued there is no such privacy right.
Judge Stephen Crocker held that there is a "cognizable First Amendment right" in such privacy, which can be balanced with the government's need for information by having Amazon contact DeAngelo's customers and ask for volunteers to talk to the FBI.
Declan reports that after this order, made in June but only now unsealed, Daniel Graber, the assistant U.S. Attorney in Madison, gave up and rescinded his request for the customer records.
So what exactly is the First Amendment concern?
The subpoena is troubling because it permits the government to peek into the reading habits of specific individuals without their prior knowledge or permission. True, neither the government nor the grand jury is directly interested in the actual titles or content of the books that people bought ... But it 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."
Judge Crocker shows a clear understanding of the way of the blogosphere, too.
Taken a step further, 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.
Because the government showed, during an ex parte hearing, that it has a legitimate need for the information, the judge decline to quash the subpoena. Holding that "at this juncture (and perhaps at every juncture), 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," the judge ordered a "filtering mechanism" by which DeAngelo's customers can volunteer to speak with the feds.
This packet will allow any used book buyer who chooses to cooperate with the investigation to contact the government and arrange an interview. Anyone who wishes not to participate in this exercise, by virtue of his or her silence, will be left alone, and the government will never learn that person’s identity or the titles of materials he/she purchased from D’Angelo through Amazon.
I have to say, this is great decision that balances privacy rights and law enforcement concerns. What I can't understand is why the US Attorney didn't go forward with this plan, if I'm reading the withdrawal of the subpoena correctly. I have no doubt some civic-minded citizens would have come forward with critical information. It makes you wonder, actually, if denied a fishing expedition, the government suddenly lost interest.