If you've ever ordered a book or a DVD online, you probably imagined you were conducting a thoroughly private transaction. But a flap between Amazon.com and the state of North Carolina has shone a spotlight on the thorny question of where, exactly, personal privacy gives way to the government’s power to levy taxes. The resulting legal tussle attracted national attention, and a pair of Asheville residents played significant roles.
It began last December, when the N.C. Department of Revenue asked the online retailer for "all information for all sales to customers with a North Carolina shipping address, by month, in an electronic format for all dates between Aug. 1, 2003, and Feb. 28, 2010.”
The request came as part of an audit of Amazon, which the state maintains neither collected nor remitted sales and use taxes on approximately 50 million purchases made by N.C. residents during the specified time period. But according to Amazon, the broadly worded demand infringed on individuals’ legal right to buy and sell "expressive and personal items" without fear of government intrusion. The company filed suit back in April, and on Oct. 25, U.S. District Judge Marsha J. Pechman of Seattle agreed, declaring:
“The First Amendment protects a buyer from having the expressive content of her purchase of books, music and audio-visual materials disclosed to the government. … The fear of government tracking and censoring one’s reading, listening and viewing choices chills the exercise of First Amendment rights.”
The American Civil Liberties Union joined the suit on behalf of six "Jane Doe" litigants — North Carolina residents who didn’t want Amazon to release their personal information. Curry First of Asheville, a retired civil rights lawyer, says he was one of them. Meanwhile, Asheville City Council member Cecil Bothwell, who owns Brave Ulysses Books, intervened as a product provider. According to Bothwell's court declaration, the vast majority of Brave Ulysses books are associated with a “particular political, social, cultural or religious belief,” and such disclosure could cause readers and customers “adverse consequences, including retaliation."
ACLU involvement played out at both the national and state levels (North Carolina and Washington, where Amazon is based).
"They wanted people in N.C. willing to be plaintiffs … who made purchases from Amazon [and] would not want their names, books, date of purchase known,” explains First, who serves on the boards of the nonprofit’s state and Western North Carolina affiliates.
"It's important to stay ahead of the curve — be aggressive. This is a door that was closed before and is still closed," he notes, citing the example of someone ordering a book on the latest treatment for AIDS. "Maybe that person is HIV-positive, and other people don't know. That's a critical privacy issue."
Twists and turns
In an Oct. 26 statement, the Department of Revenue said it hadn’t yet decided whether to appeal the ruling, asserting, "This case has been twisted into something it is not." All the department wants, the statement said, is to "collect the sales tax that is due to the state and nothing more."
"We certainly disagree that it's been twisted into something it's not," counters Katy Parker, legal director for ACLU-NC. "They asked for all information for all customers in North Carolina — name and products." And when asked (during a meeting last May) if the request had to be that broad, Parker recalls, department representatives said no, but they still refused to refine their information request. "We really were kind of amazed … and disappointed," she reveals.
The Oct. 26 statement does note that the department doesn’t need or want "titles or similar details about products" and had "purged that kind of information from its computer system."
But those specifics are still on the original discs sent by Amazon, according to both Parker and the court. And the judge's conclusion states: "To the degree the March information request demands that Amazon disclose its customers' names, addresses or any other personal information, it violates the First Amendment and 18 U.S.C. § 2710, only as long as the DOR continues to have access to or possession of detailed purchase records obtained from Amazon."
In an e-mail response to Xpress, Bothwell said: "I am gratified to be part of a successful effort to protect citizen privacy. The idea that the government should be allowed to track the reading material we purchase seems Orwellian.”
Taking another tack, First noted: "I think this is also a credit to progressive civil-liberties organizations. In this era, people need to understand the work of these organizations, which is not political — they are defenders of individual rights."
— Freelance reporter Nelda Holder can be reached at email@example.com.