Here’s an excerpt from Magistrate Judge Stephen Crocker’s new ruling that the First Amendment doesn’t let criminal investigators issue a subpoena to people who purchased items from a person charged with tax evasion. The government apparently wanted the testimony so individuals could testify that they really did pay for the items, thus proving the income required. Why did the First Amendment block the subpeona? The person charged with tax evasion sold books, so the subpoenas are for book purchasing, and DOJ is part of the Bush Administration, and geez, we all know how some people like totally lose it about that kind of stuff:
In this era of public apprehension about the scope of the USAPATRIOT Act, the FBI’s (now-retired) “Carnivore” Internet search program, and more recent highly-publicized admissions about political litmus tests at the Department of Justice, rational book buyers would have a non-speculative basis to fear that federal prosecutors and law enforcement agents have a secondary political agenda that could come into play when an opportunity presented itself. Undoubtedly a measurable percentage of people who draw such conclusions would abandon online book purchases in order to avoid the possibility of ending up on some sort of perceived “enemies list.”
[FOOTNOTE: I am not finding that such fears are well-founded, but neither can I find them completely speculative or irrational. Quite apart from any book buyer’s personal fear of federal apparatchiks or black helicopters is the more commonly shared notion that living in the land of the free means that it’s none of the government’s business what books people are reading.]
Taken a step further, if word were to spread over the Net — and it would — that the FBI and the IRS 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. Fiery rhetoric quickly would follow and the nuances of the subpoena (as actually written and served) would be lost as the cyberdebate roiled itself to a furious boil. One might ask whether this court should concern itself with blogger outrage disproportionate to the government’s actual demand of Amazon. The logical answer is yes, it should: well-founded or not, rumors of an Orwellian federal criminal investigation into the reading habits of Amazon’s customers could frighten countless potential customers into canceling planned online book purchases, now and perhaps forever.
I just love the line, “the chilling effect on expressive e-commerce would frost keyboards across America”, immediately followed by the warning, “Fiery rhetoric quickly would follow.” Yeah, always gotta worry about that fiery rhetoric — it can pop up any time, really. In terms of the law, here’s what I don’t get, or rather, here’s one of the several things I don’t get: If public misunderstanding of Judge Crocker’s decision makes the otherwise constitutional subpoena unconstitutional, can’t Judge Crocker write his opinion in a calming and soothing way to make the subpoena constitutional? Or are bloggers and their fiery rhetoric really that incorrigible?
UPDATE: Commenter Matt Bruce asks a good question: “Wouldn’t the fiery rhetoric just melt the frost off the keyboards?”