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Q&A: Amazon lawyer on feds' subpoena for 24,000 customer records

News.com chats with David Zapolsky, Amazon.com's vice president for litigation, about what the bookseller does when it receives requests from police for records of its customers' buying habits.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read

Amazon.com won an important legal fight to preserve its customers' privacy by persuading a court to reject requests for 24,000 customer records made by federal prosecutors in Madison, Wis.

Documents in that case, in which the FBI and IRS are accusing an independent Amazon seller of skirting tax laws, came to light in the last week. But it's not the first time that police on a fishing expedition have demanded customer records from the Web's largest bookstore.

Read on for our excerpts from our conversation on Wednesday with David Zapolsky, Amazon.com's vice president for litigation. He said a few years ago that Amazon gets subpoenas "roughly once a quarter," and we asked him for some more information about how the process works.

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.

Here's the conversation:

Q: How often does Amazon.com receive requests for customer records?

We do 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.

Nine times out of ten, 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: Is it more common to see law enforcement withdraw the request or modify it?

It's hard to characterize. It depends on how badly they need the information and what the investigation is about. 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: How does the volume of records in this request compare to past requests you've received?

It's hard to generalize because each one of these things is a little bit different. This (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: Can you share any details on past requests?

I never really talk about details 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 last couple of days. (Editor's note: The indictment of former city official Robert D'Angelo on tax evasion, wire fraud, and money laundering charges became public last month. Prosecutors sent a grand jury subpoena to Amazon over the summer during the investigation that let to the subsequent indictment.)

There's only been a few times when we had to go to a court to make this point. (There was) one instance in South Carolina a few years ago that never resulted in any public filings because ultimately the prosecutor's case fell apart before we got to a decision on whether or not they could enforce the subpoena.

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.

Q: What do you look at when these requests come in from law enforcement?

When the 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, Colorado, which resulted in a very fine 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.

News.com's Anne Broache contributed to this report.