Prometheus 6   

P.A.T.R.I.O.T. Act and the Law of Unintended Consequences

Patriot Act Curbing Data Retention
By BOB TEDESCHI

COULD the Patriot Act threaten the growth of e-commerce?

That is the question being raised by some online booksellers and e-tailing analysts, who suggest that the Patriot Act, passed in October 2001 to give the government new counterterrorism capabilities, has already changed the way some companies and consumers do business online. For some consumers, it has meant fewer online purchases of politically incorrect books. For the Web sites, it has meant changes to privacy policies and marketing strategies, among other things.

Some moderate voices among online businesspeople see no true threat, and the Justice Department dismisses the risks of the Patriot Act altogether. But Phillip Bevis sees it otherwise.

Mr. Bevis, the founder and chief executive of Arundel Books, which sells used and rare books online and off line, says that his customers' concerns about the Patriot Act have forced him to severely curb the amount of customer data he retains, and to alter his marketing as a result. Because he no longer keeps information about customer purchases - so as to avoid the possibility of having to disclose it to the government - he can no longer discern the buying habits of his patrons and then offer them advertisements for books they may like.

"This has certainly had a chilling effect on us, and our customers," Mr. Bevis said.

At the core of his concerns is Section 215 of the Patriot Act. Under that section, businesses, organizations or citizens can be compelled by the Federal Bureau of Investigation, if it has a federal judge's order, to hand over any records the F.B.I. deems relevant to an investigation of terrorism or espionage, as long as the investigation is not based solely on actions already protected by the Constitution's free speech provisions.

If an investigation, for example, is based solely on a suspect's radical religious statements, which receive broad First Amendment protections, the investigator would very likely be denied access to records of related books the suspect bought. But if the investigation is based on suspected terrorist bombings, and a federal judge deemed the records of a suspect's book purchases on bomb making a necessary part of the inquiry, a bookstore might be required to produce the records.

Compared with companies that sell their wares only in stores, online businesses - particularly those engaged in selling so-called expressive materials like books, music and videos - are good candidates for law enforcement requests under the Patriot Act. While off-line customers can avoid creating an audit trail by paying cash for their purchases, consumer anonymity is hard to achieve online, where transactions typically involve credit cards and shipping addresses.