November 29, 2007
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Yesterday, Amazon.com won an important legal battle to preserve some of its customers' privacy by strongly
convincing a court judge to reject all requests for about 24,000 Amazon customer records made by federal prosecutors.
Court documents in that case, in which the FBI and the IRS are accusing an independent Amazon seller of
avoiding certain tax laws, came to light Nov. 20.
However, it isn't the first time that police have demanded customer records from the Internet's largest bookstore.
Amazon said a few years ago that the company gets subpoenas "about roughly once a quarter."
It's critical to note that the First Amendment gives online and offline bookstores a greater legal ability
to resist law enforcement demands than say, banks or credit card companies enjoy. Additionally, Amazon is following
the tradition of other booksellers, which have a tradition of opposing requests from overzealous prosecutors.
In an important court case five years ago, the Colorado Supreme Court ruled that police could not serve a
search warrant on Denver's Tattered Cover Book Store. Also, in June 2000, a judge denied the Drug Enforcement
Administration's attempts to get sales records from a Borders bookstore as part of a grand jury investigation.
And probably the most famous case of all came when independent counsel Kenneth Starr tried unsuccessfully
to obtain Monica Lewinsky's full purchase records from Kramer Books, a popular neighborhood bookstore in
Washington, D.C.
Here's a Q&A conversation that took place Nov. 28 with David Zapolsky, Amazon.com's v.p. for litigation:
Q: How often does Amazon.com receive requests for customer records?
A: We get them from time to time. They come in relatively randomly, and they come from various orders,
federal or state. We typically approach each one on a case by case basis. 9 times out of 10, if what's being
asked for involves the compelled disclosure of customer expressive choices, we'll explain our concerns to the
government and they'll understand it and they'll withdraw their request or they'll modify it in a way that
doesn't cause disclosure of that information.
Q: How does the volume of records in this request compare to past requests you've received?
A: It's rather difficult to generalize that question, simply because each one of these things is a little
bit different. The Madison, Wis. case was unusual in that the sheer number of transactions was unusually large:
24,000 sales of individual books, music and a few videos, and that's a lot of sales... When they came back and
asked us for all of the customer information associated with those sales, I was surprised.
Q: Is it more common to see law enforcement withdraw the request or modify it?
Again, it's hard to tell. It all depends on how badly they need that information and what the investigation
is all about in the first place. If they're looking for credit card fraud, for instance, all they really may
be interested in is transaction amounts. There's no information about buyers or customers or anything. So if
it's a different type of investigation, they may decide its just not worth pursuing the subpoena at all.
Q: What do you look at when these requests come in from law enforcement?
When the RFI (request for information) could violate customer privacy or First Amendment rights,
we scrutinize it closely. We talk with the government about it, and if we still can't feel comfortable we'll
just ask a court to make that decision. What this court held and what we believe the law is, is a court needs
to apply a higher standard before allowing the government to get access to that information. We don't want to
be the ones making that determination if there's any doubt at all.
We think this is a significant decision because it recognizes and adopts in the federal grand jury context a
doctrine that has kind of been development over the past 10 years in the prior cases. The Kramerbooks case, which
grew out of the special prosecutor's investigation of President Clinton and then the Tattered Cover bookstore
case in Denver which resulted in a Colorado Supreme Court opinion which goes through the history of this legal
doctrine. This is just an extension of a doctrine that has been kind of percolating for a while, and it's
significant because it's a federal district court and it's a federal grand jury investigation. It continues
the development of important protection for customers and for readers of books.
Q: Can you share any details on past requests?
I never can really talk about specifics of ones we're able to resolve informally. It doesn't make sense,
and a lot of them are ongoing investigations. This only became public after the investigation was concluded,
it all played out last summer, only unsealed within the last couple of days. There's only been a few times when
we had to go to a court to make this point.
There was a case four to five years ago where some Cleveland prosecutors asked for some similar information.
They were trying to get the Washington prosecutor to enforce a local subpoena and the local prosecutor
ultimately agreed with us that that it didn't make sense. This was certainly the first public decision that
resulted from a challenge such as the one we made.
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