October 21, 2011
Did California Unintentionally (?) Impose New Statutory Duties on Every Blogger? A Post on the Newly Enacted California Reader Privacy Act
By Eric Goldman
This new California law seeks to protect online book reader privacy to the same extent reader privacy is protected by libraries, by requiring heightened process before the government or private litigants can get certain types of information about book readers/buyers. As a restriction on government action, I support the concept enthusiastically. Indeed, I count many supporters of this bill as friends (well, maybe not after they read this post). At minimum, I know the effort was well-intentioned. However, I continue to believe this law was misarchitected for the reasons I expressed in my prior blog post on the proposed legislation.
My concerns from my prior post still apply, but this post will walk you through a specific reason why this law could be bad news for people who don't realize their conduct is now regulated. Let's look closely at who is required to comply with the law--recognizing that the statute has a private cause of action that will be enforced by a rapacious privacy plaintiffs' bar. The law's requirements applies to "any commercial entity offering a book service to the public." A "book service" means "a service that, as its primary purpose, provides the rental, purchase, borrowing, browsing, or viewing of books."
OK, clearly this covers Amazon and other online book retailers. But in this day and age, what is a "book" and, more importantly, what isn’t? The statute defines a book as:
paginated or similarly organized content in printed, audio, electronic, or other format, including fiction, nonfiction, academic, or other works of the type normally published in a volume or finite number of volumes, excluding serial publications such as a magazine or newspaper
So, let's play a game and try to spot some book services in the field. Is YouTube a book service? It definitely has "electronic" books, but maybe that's not its "primary" purpose. Scribd? It has lots of books too and plenty of other long-form "book-like" content. iTunes? It has lots of audiobooks. Wikipedia? It markets itself as an online encyclopedia, but maybe it isn't commercial enough? Hmmm....this is a tough game.
But what about blogs? Are they "book services"? Before you discount the latter, consider that many blogs are, in fact, paginated (at least in the URL--see Blog Law Blog as an example). Perhaps mere pagination alone isn't enough; maybe the pagination needs to be essential to the content's organization. Perhaps many bloggers aren't "commercial entities," although I'm sure plaintiff lawyers will argue that a blog with AdSense and some Amazon affiliate links would satisfy that standard. Or perhaps bloggers will be excluded as "serial publications," although the statute could have--and should have--made clear that blogs fit into that exception. In fact, cases like the old It’s in the Cards v. Fuschetto suggest that courts might read the statutory exclusion narrowly on the theory that the legislature knew what blogs were but didn't mention them.
The ambiguity of blogs as "book services" means it’s possible California has imposed a new statutory obligation on bloggers (at least those based in California, but who knows if it will be so limited), and this obligation effectively puts bloggers' houses on the line if they don’t hire lawyers to properly navigate through the statute when the government or private litigants ask for information. Gee, thanks.
Indeed, this law could do more than just sweep in bloggers; it might cover *every* website because of the ambiguity of the term "book" and the concept of pagination. I don't know what "pagination" means in the online environment, but the concept may become more problematic in the near future. See News.com, "Opera proposal brings a book look to the Web." Thus, it seems like the law's attempt to carve out books from the universe of online content could fail, in which case large swaths of web operators become unexpectedly governed by the law--with a swarming privacy plaintiffs’ bar as the reward for the uninformed.
I have long believed that states categorically should not try to regulate the Internet. A law like this, as laudatory as its goals are, helps confirm my beliefs.
UPDATE: Paul Levy doesn't agree with my analysis.
On his point about commercial entities, I'm not sure I agree with Paul that courts will exclude individual operators. After all, we call those folks "sole proprietors." But if it definitely includes "partnerships," does that mean it will include co-bloggers? See my article on co-blogging. UPDATE: Eric Johnson parses the statutory language on this point with some care.
My broader point is that this statute is riddled with ambiguities that raise questions about its coverage. If you think my statutory reading is tendentious, it's my position that a typical Internet privacy lawsuit involves a far more tendentious reading of the applicable statute than anything I could ever imagine.
UPDATE 2: In another example of a possible ambiguity, Eugene Volokh asks if the statute makes it illegal for bookstore owners to tell the police about patron-on-patron crime.
UPDATE: Eric Johnson explains why the statute is "crazy."
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