ACLU of WA Offers Free Legal Advice to Booksellers on Protecting Customers' Privacy

FOR IMMEDIATE RELEASE

SEATTLE — The American Civil Liberties Union of Washington today said it is offering free legal advice to booksellers in the state who receive subpoenas or search warrants seeking disclosure of customer purchase records. The ACLU is making the offer in letters sent to booksellers statewide.

“The ACLU believes that the freedom to read necessarily includes the freedom to read privately,” said Kathleen Taylor, Executive Director of the ACLU of Washington. “Customers cannot freely make decisions to read unpopular or controversial books if they fear that their choice of reading matter will be revealed without their consent to police, lawyers, and judges.”

The ACLU’s action comes in response to the USA PATRIOT Act, which has given federal law enforcement agencies new tools to demand records from booksellers. Passed in 2001, the PATRIOT Act empowers the government to obtain records of a person’s book purchases as part of an intelligence investigation, without evidence that the buyer is suspected of committing a crime.

In recent years, there has been an increase in subpoenas to bookstores demanding evidence about customers’ reading habits. In one notable incident, Special Prosecutor Kenneth Starr demanded that Barnes & Noble and Kramerbooks in Washington, DC divulge information regarding all purchases by Monica Lewinsky. Booksellers in Washington state, ranging in size from Amazon.com to the small Arundel Books in Seattle, have received subpoenas to disclose customer records.

In its letter, the ACLU recalled words written by Washington’s own Supreme Court Justice William O. Douglas during the McCarthy era: “If a customer ‘can be required to disclose what she read yesterday and what she will read tomorrow, fear will take the place of freedom in the libraries, bookstores, and homes of the land.'”

The text of the ACLU letter follows:

Dear Bookseller:

The ACLU writes to offer confidential legal advice to booksellers in Washington State who receive subpoenas or search warrants demanding disclosure of customer purchase records.

In recent years, there has been an increase in subpoenas to bookstores demanding evidence about customers’ book purchases. You probably recall the famous incident in 1998 when Special Prosecutor Kenneth Starr demanded that Barnes & Noble and Kramerbooks in Washington, D.C. divulge information regarding all purchases by Monica Lewinsky. In other cases, both civil and criminal, subpoenas or even search warrants have been issued to bookstores in order to learn about customers’ reading habits.

The USA Patriot Act has given federal law enforcement agencies even more tools to demand records from booksellers. And, even before the Patriot Act was passed, subpoenas had been issued to some Washington booksellers, ranging in size from Amazon.com to the small Arundel Books in Seattle.

The ACLU believes that the freedom to read necessarily includes the freedom to read privately. Customers cannot make a free decision to read unpopular or controversial books if they fear that their choice of reading matter will be revealed without their consent to police, lawyers, and judges. As Washington’s own Justice William O. Douglas wrote during the McCarthy era, if a customer “can be required to disclose what she read yesterday and what she will read tomorrow, fear will take the place of freedom in the libraries, book stores, and homes of the land.”

In light of the threat to freedom of expression that is posed by searches of bookstore records, I write to offer legal advice from ACLU attorneys if you receive a subpoena or search warrant demanding disclosure of customer purchase records. In an appropriate case, the ACLU would be willing to represent a bookstore in filing a motion to quash a subpoena or search warrant, bearing in mind that the strength of the legal arguments will vary from case to case.

Bookstores may consult with ACLU attorneys without charge, and if we decide to represent a bookstore in litigation, there would also be no charge. Please note that although some warrants or subpoenas may contain language that prohibits the bookstore from notifying other persons about the search, these provisions do not prevent a bookstore from consulting with an attorney about how to respond to a subpoena.

Probably the strongest method of protecting customer privacy is simply not to retain unnecessary records. A subpoena or search warrant cannot force anyone to disclose records that do not exist. For some booksellers, it may be useful to develop systems to delete personal or unnecessary information about customers. Indeed, such a practice might be a selling point for customers who care about their privacy.