Amazon, free speech, and privacy

It’s almost rote to state that the difference between privacy in Canada and the United States is that the Canadian regime is broad and general while the American is sectoral. At the federal level, Canada has a single overarching law, PIPEDA, while the US has a health privacy act, a video rental privacy act, a financial privacy act, and so on. In theory, this means that only sectors which are specifically legislated have privacy protection. However, as the recent judgment in Amazon v. Lay reminds us, privacy rights can be found everywhere.

In December 2009, the North Carolina Department of Revenue (DOR) requested information regarding all sales made by Amazon in their state for the purpose of assessing sales tax liability. Amazon complied by providing a list of all the items sold, but declined to give any identifying information about the purchasers. The DOR followed up with a request for names and addresses of the customers; Amazon refused and filed suit in Washington state. They sought a declaration that the request violated the First Amendment of the Constitution and the Video Privacy Protection Act.

That the First Amendment supports a right to privacy is not a novel claim. As various anonymous leaflet cases have shown, it is clear that the First Amendment protects the privacy of anonymous speakers. One can easily see how the same reasoning would extend to protect consumers. After all, there is little worth in freedom to express a controversial opinion if your audience isn’t free (or doesn’t feel free) to hear it. Amazon itself has succeeded on those grounds before. In 2006, Amazon was asked to turn over purchase records of books sold through Amazon from a particular publisher that was being prosecuted for tax evasion. In that case, the court held that the First Amendment prevented the government from peeking into the reading habits of specific individuals without their consent.

In Amazon v. Lay, the court held that the government was required to show a pressing need for the information and that there was no less restrictive means of acheiving the goal. Lacking that, and despite statutory subpoena powers, Amazon could not be compelled to turn over the information on purchasers of books, videos, and music through its service. There is one important limitation to its ruling, it only prevents the DOR from subpoenaing customer information while it is in possession of the list of specific purchases. The court allows for the DOR to destroy all copies of the original list and request a list containing only the amounts spent. This would not contain sufficient information about individual reading habits to engage the First Amendment.