Request for Amazon User Records Unconstitutional, Says ACLU

The American Civil Liberties Union and the
ACLU of North Carolina today sent a letter to North Carolina Secretary
of Revenue Kenneth Lay reiterating concern over a recent request by the
state Department of Revenue (NCDOR) for the private records of
Amazon.com customers. The letter informs Lay that the ACLU will take
legal action on behalf of North Carolina residents who are Amazon.com
customers if NCDOR persists in its demand for their constitutionally
protected private information. Specifically, the letter says the ACLU
and its clients will intervene in an existing lawsuit brought by
Amazon.com to stop NCDOR from collecting individually identifiable
information that could be linked to specific purchases made on
Amazon.com.

According to the lawsuit filed by
Amazon in the Western District of Washington in April, NCDOR issued a
request to Amazon for the purchase records since August 2003 of
customers with a North Carolina shipping address in order to impose
taxes on the purchases. Amazon has apparently already provided the NCDOR
with product codes that reveal the exact items purchased - including
books on the subjects of mental health, alcoholism and LGBT issues.
Amazon has withheld individually identifiable user information,
including names and addresses that could be linked back to the
individual purchases, but asserts that the NCDOR continues to insist
that such information be disclosed. In its letter today, the ACLU
asserted that such disclosure would violate the constitutional rights of
thousands of North Carolina consumers to read and purchase the lawful
materials of their choice, free from government intrusion.

The following can
be attributed to Aden Fine, staff attorney with the ACLU's Speech,
Privacy and Technology Project:

"The Constitution guarantees
Americans the right to read and buy the lawful materials of their choice
without the government keeping tabs on the details of their purchases.
Amazon was right to stand up for the rights of its customers and to
refuse to turn over their personal information to the North Carolina
Department of Revenue."

The following can
be attributed to Jennifer Rudinger, Executive Director of the ACLU of
North Carolina:

"The ACLU is not taking issue with
the Department's authority to collect taxes on the value of these
purchases, but there is no legitimate reason why government officials
need to know which North Carolina residents are reading what books or
purchasing which specific brands of products. We hope to be able to work
out a satisfactory resolution to this matter so that consumers in North
Carolina can rest assured that their privacy is protected."

The full text of the letter is below
and online at: www.aclu.org/free-speech-technology-and-liberty/aclu-letter-north-carolina-department-revenue-secretary-kenneth-l

May 20, 2010

Via Facsimile

Secretary Kenneth Lay
North Carolina Department of Revenue
501 N. Wilmington St.
Raleigh, NC 27604

re: Amazon.com LLC v. Lay,
2:10-cv-00664 (W.D. Wash.)

Dear Secretary Lay:

We are writing to follow up on our
fax dated April 21, 2010, regarding the Department of Revenue's request
for private customer records concerning the items that North Carolina
residents have received through Amazon.com. We write to inform you that
we have clients - North Carolina residents who are Amazon customers and
whose private records are at stake - who are gravely concerned about
government access to their purchasing records. The information
requested will reveal which North Carolina residents, including our
clients, have received which specific books, movies, and other
expressive and private items from Amazon. Our clients are prepared to
intervene in the lawsuit in the Western District of Washington to
protect their constitutional rights if necessary, but we write this
letter in the hope that the Department might agree to a solution that
would protect our clients' fundamental rights and avoid unnecessary
litigation.

According to Amazon's lawsuit, the
Department has issued information requests to Amazon that seek a broad
set of information regarding all sales to customers with a North
Carolina shipping address since August 2003. The Department has already
received detailed data from Amazon about these purchases, including the
specific product code for each purchase, which reveals the full
description of each purchased item. These product descriptions reveal
highly expressive and private information about consumer choices: for
example, whether a person has received a book on alcoholism or home
workshop weaponry, a movie like "Brokeback Mountain," or "sexual
wellness" items such as sex toys.

Amazon appears to have turned over
this detailed information already. We understand, based on press
reports, that the Department is now taking the position that it does not
want some of this information, such as the titles of books purchased,
and that its information request did not seek to obtain such
information. Amazon appears to dispute this account. We would
appreciate receiving a copy of the information requests, redacted if
necessary to protect taxpayer information, so that we could make an
independent determination.

In any event, the fact remains that
whatever the requests called for, the Department is now in possession of
this highly sensitive and personal information, and if the Department
persists in its demand that Amazon now additionally provide detailed
user information, including names and addresses, the constitutional
rights of our clients and tens of thousands of North Carolina consumers
will be violated.

Moreover, merely limiting the request
to the type of product purchased and not including the specific brand
or title of the product would still reveal information about North
Carolina residents -e.g., that they have purchased "condoms" or "yeast
infection kits" - that the State is not permitted to collect. To the
extent the Department believes it needs to learn what type of products
were purchased, please explain why that specific information is
necessary so that we can better understand the Department's position.

We want to reiterate that we are not
challenging the Department's authority to impose a tax for these
purchases or to conduct an audit. We are concerned, however, about the
apparent breadth of the information requests, which sweep up
constitutionally protected information that the Department does not need
to determine tax liability. It is clearly established law that the
Constitution forbids the government from collecting such information.
See, e.g., In re Grand Jury Subpoena to Amazon.com, 246 F.R.D. 570,
572-73 (W.D. Wis. 2007); In re Grand Jury Subpoena to Kramerbooks &
Afterwords, Inc., Nos. 98-MC-135-NHJ, 98-MC-138-NHJ, 26 Med. L. Rptr.
1599, 1600 (D.D.C. Apr. 6, 1998); Tattered Cover, Inc. v. City of
Thornton, 44 P.3d 1044, 1052 (Colo. 2002).

As one court has already ruled in
upholding the constitutional rights of Amazon customers against
government intrusion into their expressive choices: "[I]f word were to
spread over the Net-and it would-that the [government] had demanded and
received Amazon's list of customers and their personal purchases, the
chilling effect on expressive e-commerce would frost keyboards across
America." In re Grand Jury Subpoena to Amazon.com, 246 F.R.D. at 573.

To ensure that our clients' and North
Carolina consumers' constitutional rights are not violated, and to
minimize the clear chilling effect from the Department's information
requests, we respectfully ask that the Department:

• Destroy the records that it
  has already received from Amazon that reveal what products were
  purchased by North Carolina customers;
• Make a public statement
  acknowledging that it does not need records from Amazon or any other
  entity that reveal the specific products or the type of products that
  were purchased by each customer;
• Agree to take all necessary
  steps to change its existing policy and practice and to institute a new
  policy and practice to ensure that the Department does not issue
  overbroad information requests in the future to entities such as Amazon
  that call for the disclosure of constitutionally protected customer
  information, such as what products were purchased by each customer.

We have reason to believe that the
Department has issued similar information requests to entities other
than Amazon and that the Department has received similar customer
information which is constitutionally protected in response. Please
confirm whether that is correct. That the requests to Amazon are not
the only such requests that have been made makes it all the more
imperative that the Department cease issuing such overbroad requests
that are sweeping in constitutionally protected information.

Please let us know how the Department
wishes to proceed. If we do not hear back from you by May 28, 2010,
our clients will be forced to intervene in this lawsuit to protect their
rights. I will be out of the office for much of this week and all of
the week of May 24, 2010, so please contact Aden Fine at (212) 549-2693
to discuss this matter further. We look forward to hearing from you
shortly.

Sincerely,

 
Jennifer Rudinger
Executive Director
American Civil Liberties Union of
North Carolina
P.O. Box 28004
Raleigh, NC 27611


Aden Fine
Mariko Hirose
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004