OULD the Patriot Act threaten the growth of
That is the question being raised by some online booksellers and
e-tailing analysts, who suggest that the Patriot Act, passed in
October 2001 to give the government new counterterrorism
capabilities, has already changed the way some companies and
consumers do business online. For some consumers, it has meant fewer
online purchases of politically incorrect books. For the Web sites,
it has meant changes to privacy policies and marketing strategies,
among other things.
Some moderate voices among online businesspeople see no true
threat, and the Justice Department dismisses the risks of the
Patriot Act altogether. But Phillip Bevis sees it otherwise.
Mr. Bevis, the founder and chief executive of Arundel Books,
which sells used and rare books online and off line, says that his
customers' concerns about the Patriot Act have forced him to
severely curb the amount of customer data he retains, and to alter
his marketing as a result. Because he no longer keeps information
about customer purchases - so as to avoid the possibility of having
to disclose it to the government - he can no longer discern the
buying habits of his patrons and then offer them advertisements for
books they may like.
"This has certainly had a chilling effect on us, and our
customers," Mr. Bevis said.
At the core of his concerns is Section 215 of the Patriot Act.
Under that section, businesses, organizations or citizens can be
compelled by the Federal Bureau of Investigation, if it has a
federal judge's order, to hand over any records the F.B.I. deems
relevant to an investigation of terrorism or espionage, as long as
the investigation is not based solely on actions already protected
by the Constitution's free speech provisions.
If an investigation, for example, is based solely on a suspect's
radical religious statements, which receive broad First Amendment
protections, the investigator would very likely be denied access to
records of related books the suspect bought. But if the
investigation is based on suspected terrorist bombings, and a
federal judge deemed the records of a suspect's book purchases on
bomb making a necessary part of the inquiry, a bookstore might be
required to produce the records.
Compared with companies that sell their wares only in stores,
online businesses - particularly those engaged in selling so-called
expressive materials like books, music and videos - are good
candidates for law enforcement requests under the Patriot Act. While
off-line customers can avoid creating an audit trail by paying cash
for their purchases, consumer anonymity is hard to achieve online,
where transactions typically involve credit cards and shipping
In support of librarians and booksellers, online and off, various
advocacy groups have been engaged in a bitter argument with Attorney
General John Ashcroft. The privacy advocates contend that, by
invoking the Patriot Act, the F.B.I. could monitor the reading
habits of everyone in America. Mr. Ashcroft characterized such
charges as "baseless hysteria" in a speech in September. And last
week, a Justice Department spokesman, Mark Corallo, pointed out in
an interview that no library or bookstore had been ordered to
produce customer records under the Patriot Act.
"And unless they're the subject of a national security
investigation into international terrorism or spying, and unless a
federal judge is convinced of that fact," Mr. Corallo said, "we
can't get their records."
Such sentiments do little to calm Mr. Bevis, of Arundel Books,
whose stores in Seattle and Los Angeles, and his Web site
specialize, among other topics, in alternative titles that receive
little attention from chains, like Webster's New World American
Words of Freedom and the works of Charles Bukowski, a writer in the
Even before the Patriot Act raised Mr. Bevis's anxieties, he was
served with an F.B.I. subpoena in August 2001, seeking more than six
years worth of customer data in connection with an investigation of
campaign contributions to Robert G. Torricelli, the former
Democratic senator from New Jersey, who in January 2002 was cleared
of accepting illegal gifts and cash from a wealthy contributor. Mr.
Bevis said he fought the subpoena until the matter was dropped - as
it happened, a few days before the Sept. 11, 2001, terrorist
attacks. But that legal battle, and the subsequent passage of the
Patriot Act, led him to conclude that he should keep little customer
"Unfortunately, that restricts our ability to serve our
customers," Mr. Bevis said. "We've had to stop customer follow-on
contact, we've disabled the software that tracks customer purchases
- all the things that turn a transaction into a continuing customer
reflects Mr. Bevis's efforts, in that it pledges to "NEVER sell,
trade, or otherwise disclose ANY information regarding our customers
to any person, organization, or government entity, unless fraud is
Because he frequently sells books through other online retailers,
Barnes & Noble.com and AbeBooks.com, Mr. Bevis says he cannot
sustain the same promise to customers he serves through those
rare books that is based in Vancouver, British Columbia, for
example, states that the site may disclose personal information to
"a government institution that has asserted its lawful authority to
obtain the information." Marci Crossan, manager of marketing and
communications for AbeBooks, said last week that the site was
suppliers like Mr. Bevis.
"We've come so far in the customers' comfort level with buying
online that we just hope this issue doesn't take us back a few
steps," Ms. Crossan said.
According to Christopher Kelley, an analyst with the technology
consulting firm Forrester
Research, such fears are warranted, and not just for
"Depending on how far the government goes, this issue will be so
much broader than books and movies," Mr. Kelley said. "Think about
hardware stores and other places where terrorists might buy things.
This has the potential to explode into an issue that would impact a
lot of retailers and consumers."
Executives at Amazon.com, which sells a range of goods through
its Web site, say they do not share Mr. Kelley's concerns. "The
government doesn't need the Patriot Act to ask for this sort of
information," said David Zapolsky, Amazon's vice president and
associate general counsel. "They routinely ask for it simply by
filling out a form that says 'subpoena' and sending it." At that
point, the recipients have the option of challenging the subpoena in
"It's a lot easier than jumping through the various hoops to get
a Patriot Act subpoena," Mr. Zapolsky added, because conventional
subpoenas typically do not require a judge's approval. "That's why,
I suspect, the F.B.I. hasn't tried it."
Mr. Zapolsky said Amazon receives subpoenas "roughly once a
quarter" asking for a customer's book purchase information. In those
cases, he said, he typically calls the person who made the request
"to walk them through the legal reasoning why these requests are
problematic, and why we don't give out this information without a
darn good reason or a judge telling us to."
In those discussions with law enforcement officials, Mr. Zapolsky
said he relies on legal standards set by the Colorado Supreme Court
in the 2002 case Tattered Cover Incorporated v. City of Thornton. In
that case, an independent bookseller, Tattered Cover, was served
with a subpoena in 2000 by federal Drug Enforcement Administration
officers working with local police detectives investigating a
suspected methamphetamine lab. The investigators, who sought records
of book purchases by the suspects, were turned away, and a court
The Colorado Court, relying on federal and state constitutional
principles, said law enforcement officials seeking such materials
must first show that the records are compelling enough "to outweigh
the harm likely caused" to free speech interests by the search.
The court's opinion further stated, "Our basic rationale for this
holding is that, before law enforcement officials are permitted to
take actions that are likely to chill people's willingness to read a
full panoply of books and be exposed to diverse ideas, law
enforcement officials must make a heightened showing of their need
for the innocent bookstore's customer purchase records."
On only two occasions have government investigators see
king such information from Amazon continued pursuing their
requests after weighing the standards of the Tattered Cover
decision, Mr. Zapolsky said. And in neither of those cases has
Amazon had to produce the customer data, he said.
As for possible Patriot Act investigations of an Amazon
customer's purchases of non-expressive materials, like hardware
items, Mr. Zapolsky said, "If the government shows up at the door
with a subpoena and there's no Constitutional protection overlaying
that, it's a tough argument to win."
Meanwhile, Mr. Bevis, of Arundel books, said his online book
buyers continue to gravitate to less controversial titles - no
matter his promises of privacy. But shoppers at his Seattle store -
many of whom work at a nearby federal office building - continue to
buy books that in some cases might be construed as inflammatory.
"But nowadays," he said, "everybody I know who's a federal employee
is paying cash."