To Delete or Not to Delete, That Is the Question

Keeping Customer Records in the Age of the USA Patriot Act

By Chuck Robinson

Independent booksellers are grappling with a serious issue: In the age of the USA Patriot Act, which gives the FBI expanded authority to demand from any bookstore or public library its customer records, what should they do with their customer records? Some have made the decision to purge their databases -- that way if the police do come knocking, they (hopefully) won't find anything. Village Books in Bellingham, Washington, has made a different decision, and here store co-owner Chuck Robinson explains why.

I believe the proper response to the broad scope of the USA Patriot Act is to support Rep. Bernie Sanders (I-VT) and his efforts to amend Section 215 of the USA Patriot Act through the Freedom to Read Protection Act of 2003 (H.R.1157).

Village Books has been a long-time, strong believer in the importance of relationship marketing. It is an effective way of developing customer loyalty, and as any database marketer will tell you, loyal customers are your most profitable customers.

In our case, direct, customized customer contact is the basis of our customer service program. We use customer purchase information to inform customers of new books and author events related to their interests. Our messages to our customers are much more targeted and affordable than mass messages would be.

We offer patrons a frequent buyers' program as a way of offering them better, personalized service. In return for allowing us to track their purchases and learn about their preferences, we give them a rebate coupon after every 15 purchases.

Importantly, participation in our buyers' club is strictly voluntary. Customers may give us authorization to note their buying habits, but we zealously guard the privacy of the information that we collect with their permission. Furthermore, we've created an enrollment form that details the program and clearly informs folks of our privacy policy.

Of course, until the passage of the Patriot Act, booksellers had reason to believe we could protect the confidentiality of our customers' records. Under the Patriot Act, the FBI can secretly obtain a court order for customer records, depriving us of an opportunity to challenge them. Even worse, the orders include a gag provision that prohibits us from revealing the fact that we have received them.

In several cases in recent years, the American Booksellers Foundation for Free Expression (ABFFE) has successfully assisted booksellers in fighting subpoenas. The most notable case was that of Denver's Tattered Cover, which did go to court to fight a search warrant and won.

Obviously, this is one of the provisions of the Patriot Act that concerns us deeply. Nonetheless, purging our customer records, in my opinion, is not the answer.

For one, I don’t believe that the focus should be on eliminating legitimately held records. The focus should be placed on who has a right to gain access to those records. Protecting the privacy of that information -- whether it’s bookstore purchases or health or insurance records -- is of the utmost importance. I believe we should do everything we can to protect that information.

More importantly, I don't think it is possible for booksellers to eliminate all title information from their customer records. Booksellers are legally required to collect and keep some types of customer information, including credit card records, register receipts and tapes, sales information, and resale tax information. State tax regulations and some leases require that a store's records be made available for inspection.

There are the also the records we keep for our own protection -- mailing records, security camera tapes, special orders, and house accounts. Many of these records, while not carrying specific title references, can certainly be linked to specific title purchases through a combination of records. If the FBI wants to find title information for a particular customer in these records, they'll find it.

Also, I believe the major reason for not eliminating customer data is that it would weaken the fight against the illegitimate access to customer records. Simply saying we don’t have those records (sometimes naively) does not address the government’s right to secret access. One wouldn’t even consider that tack with health records or bank records, for example. I believe it wrongly focuses on whether records should be kept and not on who may have legitimate access to those records.

Finally, we are continuing to operate our buyers' club (and collect data for this purpose), because this is what our customers want. Also, it is something that we believe that we must do to continue to remain a viable small business. As such, we are prepared to challenge any illegitimate effort by government to obtain these records by subpoena or search warrant.

I believe the best way to make a stand against those sections of the Patriot Act that unconstitutionally infringe on our customers' civil liberties is through knowledge and advocacy.

I have personally been very active in presenting community forums relating to the Patriot Act. We have also had numerous conversations with customers in the store, and, though they are deeply concerned about these provisions, they all seem to focus on the legitimacy of access rather than whether the records should be kept.

The proper place to address this issue is in Congress. Following a letter-writing campaign by Vermont booksellers and librarians, Rep. Bernie Sanders introduced the Freedom to Read Protection Act (FRPA). FRPA amends the Patriot Act by removing bookstore and libraries from the list of businesses whose records are liable to secret searches. All booksellers should contact their representatives in Congress and urge them to support FRPA, and they should encourage their customers to do the same.

Obviously, trying to undo a provision of something called the Patriot Act at a time like this will not be easy. However, concern about civil liberties is growing. Although it was only recently introduced, FRPA has 58 co-sponsors in the House, including five Republicans. ABFFE and the American Library Association (ALA) have both endorsed the legislation and are working closely with Rep. Sanders to build support for the measure.

For more information about the FRPA, go to the ABFFE Web site, www.abffe.com; Rep. Bernie Sander's Web site, http://bernie.house.gov; the ALA Web site, http://www.ala.org/alaorg/oif/usapatriotlibrary.html or click here. Specific questions can be addressed to ABFFE President Chris Finan at [email protected].

[Watch upcoming issues of BTW for another perspective on this important issue.]