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Who's Snooping Around Bookstores? Lots of People

01/03/2012 11:27 am ET | Updated Mar 04, 2012

Browsing in a bookstore is one of the world's greatest forms of entertainment. The price is right, the pace is leisurely, the resources are unmatched, your fellow browsers are usually thoughtful, and the intellectual stimulation is endless. Many people never get tired of it. My wife and I own a bookstore, but we still find it invigorating to walk into someone else's bookstore and look around.

But when does browsing become a bit abusive? According to Julie Bosman writing in the New York Times (12/5/11), it's probably when browsing morphs into "showcasing": "Bookstore owners everywhere have a lurking suspicion: that the customers who type into their smartphones while browsing in the the store, and then leave are planning to buy the books online later."

And they're probably not buying them, one suspects, from the store that hosted their research.

Is this such a bad thing? In small doses, of course not. But when the practice begins to mushroom, independent booksellers start wondering if publishers ought to be paying them an advertising fee to showcase books that many are buying elsewhere. A recent survey conducted by the Codex Group, a book market research and consulting company, showed that 24% of the people who bought books from an online retailer said they had looked at the same book in a brick and mortar bookstore before making that purchase. In the case of customers purchasing from Amazon.com, that number jumped to 39%.

Ah, Amazon. If there's a questionable practice going on anywhere, you can usually count on Amazon to push it over the limit.

Not content with the advantage it gets when 39% of its customers kick the tires on the merchandise in someone else's showroom before buying from them, Amazon decided to go a little further. In December 2011, Amazon instituted a program by which customers could earn a five-dollar discount on any purchase if they first went into a brick and mortar store and checked out the same merchandise.

And, yes, they have an app for that.

Amazon customers were told how they could walk into a neighborhood store with their hand-held device and gather information. "Check prices instantly," the Amazon Web page proclaimed. The customer was told to find the merchandise they wanted and then "scan it, snap it, say it, or type it" into their smart phone. That information then became a part of Amazon's vast data-mining operation, and the customer received $5.00 off the purchase of the same item from Amazon. Spies apparently work cheap these days.

The uproar in the retailing world over Amazon's tactics was immediate. The Alliance for Main Street Fairness said, "Small business owners aren't happy that Amazon is trying to turn their Main Street storefronts into digital showrooms." Literary agent Andy Ross focused on the data-mining of the device: you are "uploading information to Amazon including the geographical coordinates of your price check. You are, in effect, an Amazon secret shopper." Senator Olympia Snowe called it "an attack on main street businesses that employ workers in our communities. David Didriksen of Willow Books & Cafe in Acton, MA called it "another in a long series of predatory practices by Amazon. You would think that a company of that size would be willing to just live and let live for small retailers who can't possibly affect them. But, no, they want it all." Oren Teicher, executive director of the American Booksellers Association, wrote an open letter to Jeff Bezos, president of Amazon, concluding, "We suppose we should be flattered that an online sales behemoth needs a main street retail showroom. Forgive us if we're not." Author Richard Russo, in a Times editorial (12/13/11) said, "Is it just me, or does it feel as if the Amazon brass decided to spend the holidays in the Caribbean and left in charge of the company a computer that's fallen head over heels in love with its own algorithms?"

Given Amazon's history of predatory pricing, sales tax evasion, and arbitrary de-listing of authors, we probably shouldn't be surprised at this. A company that would spend the holiday season flooding us with ads in which the female actor is referred to as "Happy Pants," is insensitive enough to do almost anything.

Snooping on bookstores is one thing; snooping on readers is far worse. But in a way, the two things are connected.

There's a growing concern among civil libertarians and others that the reading habits of book purchasers may be in jeopardy. The first hint of this problem came in Kenneth Starr's probe of President Bill Clinton. He issued a subpoena to KramerBooks in Washington. D.C., in an attempt to obtain records of books purchased by Monica Lewinsky. The court struck down the demands of the special counsel as being overly broad and infringing on the First Amendment rights of book purchasers.

The next big test came in Colorado, where investigators in a drug case issued a search warrant against Tattered Cover Books for the book-purchasing records of a suspect. In the landmark decision of Tattered Cover, Inc. v. City of Thornton, the Colorado Supreme Court limited the power of the police to those cases where the information being requested met a strict constitutional standard.

That's two big cases and two wins.

But those two victories for reader privacy happened only because some courageous booksellers refused to comply with the initial demand and insisted on a court hearing. They could just as easily have said yes and handed over the records, as many big companies have done in similar situations. When First Amendment issues are at stake, there are few people as stubborn or feisty as independent booksellers.

The problem of protecting reader privacy has grown significantly more serious with the advent of the e-book. In the April 2011 hearings leading up to the new California Reader Privacy Act, the California State Senate cited an NPR report of March 2010:

"Digital book services have the ability to collect and retain very detailed information about readers. The level of detail that these services can collect would require an offline library or bookstore to hire an agent to follow each individual patron around the stacks, throughout their day, and finally into their homes. Digital book providers can easily track what books an individual considers, how often a given book is read, how long a given page is viewed, and even what notes are written in the 'margins.' As reading has moved online, it also has become much easier to link books that are browsed or read with a reader's other online activities, such as Internet searches, emails, cloud computing documents, and social networking. With all of this information, companies can create profiles about individuals, their interests and concerns, and even those of their family and friends."

The California Reader Privacy Act, which went into effect on Jan. 1, 2012, is a partial response to this problem. The act says a bookseller shall not "knowingly disclose to any government entity, or be compelled to disclose to any person, private entity, or government entity," any information about a customer without a proper hearing and court order. It applies mainly to criminal cases, but it also applies in civil matters in which an enterprising attorney might issue a subpoena for evidence in, say, a tax case or a divorce case. The Act is an important first step, but it still leaves some pretty big holes in reader privacy.

First of all, the Act doesn't apply in cases involving a federal investigation. There, it is possible that a bookseller could be served with an FBI request under the Patriot Act. In many of those cases the booksellers can neither contest the government's demand nor even reveal the fact that it was made.

Perhaps more significantly, the California statute only regulates disclosure to a governmental entity or disclosures made in a legal proceeding. It makes no mention of voluntary disclosure to anyone else: that apparently is left up to the bookseller's own internal policy.

In evaluating a company's privacy policy, a reader needs to look at how much wiggle room it contains. Sometimes you almost need a lawyer to figure out what it really means. For example, Apple says this in its e-books privacy policy:

"Apple shares personal information with companies who provide services such as information processing, extending credit, fulfilling customer orders, delivering products to you, managing and enhancing customer data, providing customer service, assessing your interest in our products and services, and conducting customer research or satisfaction surveys."

Amazon, for its part, uses this language: "As we continue to develop our business, we might sell or buy stores, subsidiaries, or business units. In such transactions, customer information generally is one of the transferred business assets."

One way to look at the potential threat to reader privacy is this: When you purchase an e-book, you are not really purchasing a book but rather access to the contents of that book in a vast, cloud-based digital system. As e-book designers add features to the system to make it smoother for the reader, they inevitably end up gathering more information about the reader. The database will not only show what you bought, but when you bought it, how fast you read it, what parts you went back and read again, and what page you were on when you put it down.

How important is any of this? Readers have to decide that for themselves. But in an e-book world, they would do well to get over the notion that a book is something they're reading in the privacy of their own surroundings. The cloud-based data system knows what they're reading and a lot more personal information as well.

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