E-books—No Friends of Free Expression
Electronic reading devices like the Amazon Kindle, Barnes & Noble Nook, and Apple iPad promise extraordinary convenience for book lovers. They’re lightweight, can store hundreds or even thousands of e-books, and allow readers to download content just about anywhere using built-in wireless technology. Yet these devices may also be jeopardizing long-established ways of reading words and other types of symbols, not to mention our ability to communicate freely about them.
It may seem odd to suggest that reading has something to do with freedom of expression. It’s one thing to read a book, after all, but a different matter to write one. Nevertheless, we shouldn’t lose sight of the fact that reading is an expressive activity in its own right, resulting in notes, dog-eared pages, highlights, and other forms of communicative fallout. Even more to the point, as Georgetown Law Professor Julie E. Cohen observes, “Freedom of speech is an empty guarantee unless one has something—anything—to say…[T]he content of one’s speech is shaped byone’s response to all prior speech, both oral and written, to which one has been exposed.” Reading is an integral part of the circuitry of free expression, because it forms a basis upon which our future communications are built. Anything that impinges upon our ability to read freely is liable to short-circuit this connection.
This became all-too apparent in June 2009. Though classes may have just recessed for the summer, Justin D. Gawronski was already thinking about September and the start of his senior year of high school. His Advanced Placement English teacher had issued a summer reading assignment, and so the young man did what any honor student worthy of the name would do: he promptly bought the book and got right down to work. Instead of purchasing a print edition of the required reading—George Orwell’s novel about totalitarianism, 1984—Gawronski downloaded it wirelessly onto his Kindle. Over the next few weeks he read his way through the first third of the e-book, bookmarking pages, highlighting passages, and typing in notes. But when Gawronski booted up his Kindle one day in July, the volume he had been reading disappeared from the device. It had been deleted remotely by Amazon.com, because the edition had been improperly licensed.
Garownski’s story shows how Kindle and devices like it are more than just alternatives to print. They belong to an increasingly prevalent type of information technology—what the Harvard Law Professor Jonathan Zittrain calls “tethered appliances.” Tethered appliances oblige you to enter into enduring relationships with corporate custodians, who make it their job to manage the inner-workings of these devices regardless of your wishes. They also allow vendors—and potentially others—to peer over your shoulder any time you open an e-book, because they wirelessly relay detailed information about what, how, and for how long you’ve been reading back to the corporations they’re tethered to.
Amazon.com, for example, markets the backup and syncing features of its Kindle as useful tools for managing your electronic library, in addition to whatever notes, highlights, and dog-ears you may have made. The company is less forthcoming about what happens to that information once it leaves your machine and is archived in its vast computer system, or “cloud.” Amazon’s privacy policy protects against the most egregious abuses of its clients’ personal information. Like most such policies, however, it’s full of loopholes and exceptions that make it leakier than it should be.
The main issue comes down to what Daniel J. Solove, a Professor of Law at George Washington University, calls “privacy drift.” In this scenario, compliance with corporate privacy goals falls off as personal information migrates away from the company that had collected it initially. This is a major concern when it comes to organizations like Amazon.com, whosecorporate holdings are sprawling indeed. But the worries about privacy drift don’t stop there. When companies declare bankruptcy, courts can legally compel them to liquidate valuable assets, including their databases. And when this happens, the privacy policies that once dictated the acceptable uses of the personal information stored there no longer necessarily apply.
Also troubling is the potential of e-readers like Kindle to render users vulnerable to new levels of government surveillance. Library loan records and bookstore sales receipts are well-established mainstays of criminal investigations. The assumption is that evidence of what a suspect has been reading may ultimately help investigators to establish a pattern of behavior leading up to a crime. In such cases, the police only have to acquire a subpoena to access the information they need. But if the same investigators wanted to sift through a suspect’s own library of printed books for evidence ofhow she or he had been reading, that would be a different matter. A 4thAmendment “probable cause” standard would apply, meaning that investigators would have to go through the motions of obtaining a search warrant from a neutral magistrate. The standard increases because of the heightened privacy expectation that surrounds our reading activities.
Tethered appliances like Kindle run afoul of this heightened privacy expectation. Amazon, for its part, possesses detailed records of not only whatbut also how Kindle users read. And because the data is transmitted electronically and then archived in the company’s computer cloud, US law doesn’t consider it to be private information. It belongs instead to an exceptional category, something called “stored communications.” These types of exchanges exceed the scope of the 4thAmendment, because they’re shared with and maintained by a third party. The upshot is that the reading activities of Kindle owners suspected of crimes aren’t subject to the usual probable cause/warrant standard but instead to the more relaxed requirements of obtaining a subpoena. And as is typical of tethered appliances, Kindle has been engineered so that users have practically no choice but to allow their civil liberties to be undermined in this way.
Given the intimate tie that reading and free expression share with one another, it seems reasonable to wonder what will happen to our ability to communicate when the reading activities we’ve long counted on to be private suddenly go public. Indeed, the knowledge that someone is looking over our shoulders every time we open our e-books could lead us to censor which selections we make or how we choose to engage them. The far greater concern is that these initial acts of self-censorship could diminish our ability to communicate richly and openly with one another down the road, because there would be fewer communicative resources for us to confidently draw on.
If we value free expression—and I sincerely hope that we do—then we need to take steps to ensure that reading remains private, especially now that tethered appliances like the Kindle, Nook, and iPad are going mainstream. Some have even suggested that the right to free speech today needs a complement—a “right to read,” which would help to ensure that what and how we’re reading remains nobody’s business but our own.