October 4, 2011
California Enacts Book Purchase Privacy Law
California has enacted the Reader Privacy Act (S.B. 602) which requires search warrant to access customer data on regular and e-books purchased online or from bricks-and-mortar store. All the law and privacy groups are cheering. Here’s the ALCU press release, and here’s one via the EFF. The law allows sellers to contest the disclosure. Even Google likes it. The Act was inspired by North Carolina’s attempt to get wholesale records of citizen purchases for purposes of charging them sales tax on those purchases. California doesn’t have that problem since it entered into an agreement with Amazon to collect sales tax on California citizens.
I can’t say that a law such as this is a bad idea. It sets a level of privacy that is on a par with the standard for disclosure of a person’s library records, assuming they are preserved in the first place. Everyone is paranoid, it seems, that government wants to know what they are reading for whatever purpose. Usually it’s part of a criminal investigation, otherwise, why make disclosure subject to a warrant? I’ll mention in passing that the state law probably does not hamper federal investigations using the Patriot Act as authority.
Somewhere in the back of my mind, however, was a nagging question of how many prosecutions had actually taken place where a person’s reading habits were part of the evidence. Try running the words “reading habits” /p prosecut! In Westlaw Classic in the ALLSTATES case law database and, as of this writing there are exactly seven cases where the words appear.
Most of them are in reference to questionnaires where potential jurors are required to disclose some their reading habits. One case excluded the testimony of a library director about the general change in community reading habits in relation to an obscenity prosecution from 1972 (Price v. Commonwealth, 213 Va. 113, 189 S.E.2d 324 (1972)). The prosecution in another moved to exclude reading habits by one defendant after the defense tried to use the information as part of character evidence (People v. Kronemyer, 189 Cal.App.3d 314, 234 Cal.Rptr. 442 (1987)). A third case, Hannah v. State (420 Md. 339, 23 A3d. 192 (2011)), involved violent lyrics written by the defendant as an element of the evidence for attempted murder. The Maryland Supreme Court quoted United States v. Giese, 597 F.2d 1170 (9th Cir.1979) in passing:
We reject Giese's arguments, but in so doing we wish to emphasize that we are not establishing a general rule that the government may use a person's reading habits, literary tastes, or political views as evidence against him in a criminal prosecution. In many cases such evidence would be clearly inadmissible. See, e.g., United States v. McCrea, 583 F.2d 1083 (9th Cir.1978). Our decision upholding the admissibility of From the Movement Toward Revolution stems from the peculiar circumstances of this case and, reflecting our concern for the sensitive nature of First Amendment values, it rests on very narrow grounds. We hold that it was proper to introduce the book during the government's case-in-chief because it bore the fingerprints of Giese and three of his co-conspirators and thus tended to corroborate witnesses' testimony that the conspirators associated with each other. We further hold that it was proper to ask Giese to read extracts from the book on cross-examination because he opened the door to that line of inquiry by introducing 18 books as evidence of his peaceable character during his own testimony on direct examination.
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Giese took the stand in his own behalf and denied supplying his alleged confederates with From the Movement Toward Revolution and the various explosives and firearms manuals which had been found in their possession. [ ] Had he stopped his testimony about books at that point, he would not have opened any doors. But he did not stop. In response to his counsel's questions, Giese produced a stack of 18 books and proceeded to describe them one by one. [ ] All 18 were introduced into evidence later in the trial and were available for the jury's inspection. Some of the items were “representative samples” of the types of books Giese stocked in his bookstore; others, including three books Giese had written, were his personal property and had been kept at his home rather than at the bookstore.
There are a few federal cases that note the limitations of the Giese case where reading habits are relevant to the case, though they tend to state that reading habits are inadmissible unless the defendant raises that issue, or that reading habits are not evidence to the charge. There are six federal cases (via ALLFEDS) that appear as results under the same search. The closest one besides Giese that touch on the central issue of reading habits is In re Grand Jury Subpoena to Amazon.com Dated August 7, 2006, 246 F.R.D. 570 (W.D.Wis.,2007). That case involved a federal tax investigation against a used book seller where the actual reading habits were not an issue. The Court nonetheless raised the First Amendment issues on its own about the scope of the subpoena, which the government ultimately withdrew. None of these cases, state or federal, demonstrate a prosecution where evidence of reading habits contributed to a finding of guilty.
I find it ironic, and not in the hipster sense, that individuals are encouraged to display their reading habits through social media and they willingly do it. The FBI may have thought the Carnivore program was necessary to collate all possible data on all possible threats. That program is gone, replaced likely by something a little less public. Think NSL letters. I think it’s just as easy to locate a suspect’s Facebook page and use any admissions there as evidence, especially if it’s public.
So, in the spirit of disclosure, what am I reading lately? My taste in print magazines tends towards MOJO, which is an excellent music publication out of the UK. The November cover story is on George Harrison. Lately in books it is Starman, a biography of David Bowie by Paul Trynka (a former MOJO editor). Other titles include Collision Course, by Joseph McCartin on the PATCO strike and resolution (a review will be forthcoming) and How To Fix Copyright by William Patry. Come and get me copper.
Hat tip to the BNA Electronic Commerce & Law Report for the story.[MG]
Thank you for posting that (I did know about because I happen to live in CA). Think of it as a preventative measure.
Admittedly user education is going to be tough, but if more people begin to question their web usage and records of it, the more they MIGHT pay attention to what they are doing and set up their privacy settings on their browswers and applications or choose not to use a particular application accordingly.
Everyday there seems to be another example of an official picking and chosing or changing laws to their own taste, irregardless of the form they had to sign before getting into office: to uphold the US Constitution and State laws.
Posted by: Kathleen OConnor | Oct 4, 2011 11:34:41 AM