First Amendment Trumps E-Discovery

In a recent and previously sealed federal fraud and tax evasion case (U.S.A. v. Amazon.com, W.D.WI, Case No. 07-GJ-04, filed 6/26/07), the district court ruled that customers who bought used books via Amazon.com have a cognizable First Amendment right to maintain the privacy of their reading choices.

The case stemmed from the U.S. Justice Department's discovery attempt (via a grand jury subpoena) to obtain Amazon customer records in order to advance its criminal case against a used bookseller suspected of committing criminal fraud and tax evasion. The Justice Department in this case does not suspect Amazon nor its customers of any wrongdoing. It simply wants to use the customer information to build a case against the defendant.

Citing the "compelling interest" test in "In Re: Grand Jury Subpoenas Duces Tecum, 78 F.3d 1307 (8th Cir. 1996), the Wisconsin court stated that "although a grand jury subpoena is presumed valid and enforceable, if the witness demonstrates a legitimate First Amendment concern raised by the subpoena, then the government must make an additional showing that the grand jury actually needs the disputed information."

The Wisconsin court further stated that "the subpoena is troubling because it permits the government to peek into the reading habits of specific individuals without their prior knowledge or permission."