Amazon wins battle to protect customer records

But victory narrowed, since prosecutor obtained data through other means

Amazon.com has successfully fought an attempt by US federal prosecutors to gain access to information about thousands of customers who purchased books online. But the victory was offset by the prosecutor's ability to obtain the data from a suspect's computer.

In August 2006, a US federal grand jury issued a subpoena to Amazon to turn over the records of customers who had purchased some 24,000 books over four years from Robert D'Angelo, according to court records, which have just recently been unsealed. The US Attorney's Office, which had requested the subpoena, ultimately reduced the scope of its subpoena to 120 book buyers, or 30 per year for the four years under investigation.

D'Angelo, who sold used books and CDs on Amazon, was under investigation for tax evasion and mail and wire fraud. The government did not suspect Amazon or its customers of any illegal activity, nor did the government consider the customers victims of any of D'Angelo's schemes, according to court documents.

Amazon and its customers were merely "bricks in the evidentiary wall being erected by the grand jury," said Magistrate Judge Stephen Crocker in his ruling, which was issued on June 26.

On April 25, 2007, Amazon filed a motion in the US District Court for the Western District of Wisconsin to quash the subpoena, saying that identifying any book buyers would violate their First Amendment rights to keep their reading habits private from the government. The reasoning is that people might change their book-buying habits if they thought what they read might put them on the government's "enemies list," the judge said in his ruling.

The judge said the government's subpoena was "troubling because it permits the government to peek into the reading habits of specific individuals without their prior knowledge or permission."

In addition, Crocker said, "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."

"We have a privacy policy that protects customer privacy," said David Zapolsky, Amazon's vice president of litigation, in an interview. "And we work with law enforcement, and we'll respond to binding subpoenas, but if we have any doubt about whether the request by a law enforcement agency has the potential to violate customers' First Amendment rights, we will scrutinize it closely. And if we can't work around that problem, we'll usually ask a judge to decide whether the government's need is sufficient."

However, Amazon decided to fight the subpoena after it had already given the U.S. Attorney's office the e-mail addresses of D'Angelo's customers, said Assistant U.S. Attorney John Vaudreuil, head of the criminal division of the Madison office. However, Amazon had not given the government the names and addresses of those customers.

In its court filings, the U.S. Attorney Office's said its subpoena had nothing to do with the First Amendment because the government was not seeking the "content of D'Angelo's book sales." The government said it was only interested in proving that D'Angelo sold the books, got paid for them and subsequently mailed the books to the customers. The information the government was seeking "had nothing to do with what the book was about."

When Amazon filed the motion to quash the subpoena in April, it also asked the court to unseal the documents related to the case.

Ultimately, the judge did not grant Amazon's motion to quash the subpoena, but he refused to compel Amazon to disclose its customers' data, Zapolsky said.

Instead, the judge ordered Amazon to communicate with its customers and ask them if they would be willing to participate as witnesses in the case, Zapolsky said. The judge also refused to unseal the court documents until D'Angelo had either been indicted or the case against him had been closed, he said.

But Amazon never had to contact its customers because the government retrieved the information from D'Angelo's personal computer. "While we were putting that communication together, the government withdrew its subpoena, saying they were going to find the information by other means," Zapolsky said.

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Linda Rosencrance

Computerworld
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