Digital Reading, Subpoenas, and Privacy

In the c|Net blog, The Iconoclast, Declan McCullagh recounts that Amazon successfully resisted an effort by federal prosecutors in Madison, WI to obtain 24,000 customer records.

As c|Net notes, libraries and bookstores have recourse to special protections against the forced release of their users' data, and Amazon -- to its great credit -- has utilized that entrust of law to protect its customers. It should be applauded for that stance.

McCullagh writes,

It's important 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. And Amazon is following the tradition of other booksellers, which have a tradition of--individually and through the American Booksellers Foundation for Free Expression--opposing requests from overzealous prosecutors.

In an important 2002 case, the Colorado Supreme Court ruled that police could not serve a search warrant on Denver's Tattered Cover Book Store. Two years earlier, 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 perhaps the most famous case came when independent counsel Kenneth Starr tried unsuccessfully to obtain Monica Lewinsky's purchase records from Kramerbooks, a popular neighborhood bookstore in Washington, D.C.

The issues worry me greatly: reading is tuning into a series of digital transactions, transitioning from a private matter of solitary, silent reading into an inherently social act suitable for data mining. Indeed, the fascinating historical work of Paul Saenger demonstrates how the revolutionary change wrought in the early Medieval Ages by the Arabs and the Irish of separating words with spaces and punctuation to ease the understanding of translated Latin texts enabled silent reading, which in turn created modern expectations for privacy in the matter of what we read and think. Unlike the historical precedent of spoken storytelling and dictation, silent reading, with its interior voice, enabled the wandering of mind and thought into private places. This newfound sense of privacy, sweeping through Europe, helped unleash a river of heretical criticism and speculation that was catalyst for the Western Renaissance, and midwife to the research library.

So we all must then inquire of publishers building online digital text libraries, and Microsoft and Google with their online books corpora: what happens when the police and courts of the state come to you? : Are you prepared to respect and reassert in a digital age -- an age in which the act of reading is inherently recordable -- the individual's control of privacy that has been maintained over the last 700 years? The alternative is to begin a retreat to the sunken expectations for the disclosure of our thoughts and writing that echo with eerie fidelity the cloistered labyrinths of the oral culture of 1200 AD -- a world far more inimical to free expression.

In the history of human society, the state's interest is rarely one in support of an individual's investigation of the nature of governance, but such inquiry may well be in the interest of its citizens. In our fear of terror we may cloud the rightful opportunity to consult criticism. In part on the demand for such a right for its own citizens did the country in which I live, at the moment of its proclamation, declare its independence. For this lesson we must have learned, that we must practice the privilege of asserting our privacy, and with it the ability to think heretically, against convention, away from the scrunity of unwelcome authority. If we lose that in the skein of automation's snares, we are wholly lost.