Tuesday, February 5, 2008
The United States District Court for the Western District of Wisconsin unsealed (November 2007) an order granting in part and denying in part a motion to quash a grand jury subpoena requesting the names of third parties purchasing books from the target of a government probe, Robert D'Angelo. Amazon.com, which agreed to provide other information, refused to disclose the names of the book buyers, and resisted the subpoena. Here's the text.
In the instant case, we start with the presumption that the grand jury issued the challenged subpoena to Amazon in good faith in an attempt to obtain relevant information. Amazon does not dispute the government's claim that it is not seeking the identities of the sample of D'Angelo's used book buyers out of any interest in the book buyers themselves. Rather, these buyers merely are potential witnesses to D'Angelo's alleged fraud and tax evasion schemes by virtue of having completed financial transactions with him. It happens, however, that these transactions involved an expressive medium rather than pottery, bricks or widgets.
This presents a legitimate 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, and I have enormous trust in the prosecutors and agents handling this investigation, with whom this court has worked many times before. 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."
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. Let me re-emphasize that I have no concerns about the government's good faith and intent in the instant case. Amazon, however, has a legitimate concern that honoring the instant subpoena would chill online purchases by Amazon customers. This First Amendment concern is a factor for the court to consider when determining whether to require compliance with the subpoena as currently configured.
So, although no Supreme Court precedent yet has required the government to pass a test of substantial relation or compelling need, I have required the government to explain the grand jury's investigative need for the identities of people who purchased used books from D'Angelo. The government's ex parte affidavit and the prosecutors' answers to my questions during the ex parte portion of the June 25, 2007 hearing establish that the government has a bona fide investigative need to contact and interview at least some of the people who bought used books from D'Angelo through Amazon. Therefore, I will not quash the subpoena.
Nonetheless, I have concluded 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. Everyone involved in this dispute agrees that the book buyers have done nothing wrong and face no direct scrutiny; accordingly, they should not be put unnecessarily to the embarrassment of an unsolicited FBI interview that might specifically deter them from future recorded book purchases or generally deter others who learn of this investigation.
Accordingly, I have ordered a filtering mechanism that calls for volunteer witnesses from the enormous pool of customers who bought used books from D'Angelo. Essentially, Amazon will send a letter to a subset of the 24,000 purchasers, advising them in general terms of the government's investigation and the customer's potential role in it. Amazon will attach a letter from the United States Attorney's Office providing the government's perspective, and a copy of another order prepared by this court that establishes the limits of Amazon's and the book buyer's responsibilities at this point. 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.
The content of these letters and orders, plus the size and geographic location of the sample have yet to be determined. If the parties do not appeal this order, then they anticipate working toward a consensus on the contents of all three documents. In the event consensus eludes them, then the court will determine the contents of the documents after giving the parties another opportunity to be heard.
Finally, I denied without prejudice Amazon's motion to unseal its documents. Notwithstanding the D'Angelo media tidbits someone is chumming into the local waters, D'Angelo is entitled at this time to avoid the publicity that would be triggered by unsealing the instant dispute, even if the documents were redacted. Similarly, the grand jury has a legal obligation to maintain the secrecy of its investigation to the greatest extent possible. Unsealing the documents generated in this dispute would violate that obligation. If the grand jury later returns a true bill against D'Angelo, closes its investigation without an indictment, or if some other event occurs that genuinely calls into question the need for continued secrecy, then Amazon may move for reconsideration. For now, however, all documents submitted to this court on this matter will remain under seal.