Law and Conversation

No matter how much you love your old-fashioned paper books, it’s hard not to own up to a few little covetous twinges when you see people with Kindles or sleek iPads.

Students who download their texts on e-readers must love not having to carry around the extra weight of traditional texts.  They must also find being able to highlight, underline, or make notes in their e-books, as the Kindle application permits, incredibly convenient.  Those who commute or travel also love their e-readers, for the same reasons.

But those capabilities have legs which give e-readers a creepiness factor.  I took note some months ago of Gretchen Rubin’s post advising that if you download a book on a Kindle and highlight or take notes, the device reports back to Amazon about your highlighting or notetaking.  NPR now picks up on the issue by reporting on other data that’s transmitted back to Amazon, or Google, or Apple, or whatever other company manufactured your e-reader or the application you use.  Those companies know, or have the capability of knowing, when you read, when you stop reading, where you were while you were reading, and whether you read the whole book or stopped at page 45. 

This information may prove immensely useful to businesses who want to sell more products to consumers, of course.  But what might a government inclined to monitor its citizens’ activities closely do with information about people’s thought processes, I wonder?  Might the government of, say, China require all university students to use e-readers that report students’ reading habits and notetaking back to it, I wonder?

The Wall Street Journal Law Blog reported that at least two justices of the U.S. Supreme Court read briefs on their e-readers, as do an increasing number of judges on lower courts.  What if those judges highlight or underline the arguments of counsel?  Do the e-reader applications they use report that data?  What implications for judicial decisionmaking does that carry?

Of course, data about individuals’ browsing habits is already stored in multiple locations on different computers and servers.  When in doubt, you can assume that online publications generally know your IP address, which articles you’ve clicked on, and other information about you.  If you buy books online, or in a store using a credit card or frequent buyer program, there’s a record of the books you’ve bought.  If you check books out of a library, there’s a record.  Bottom line:  we trade our privacy for what electronic devices, applications, and the internet offer.

NPR quotes Stephen King on the data collection issue as follows:  “Ultimately, this sort of thing scares the hell out of me,” King says. “But it is the way that things are.”

In related news, the Sixth Circuit Court of Appeals held this week that citizens have the same expectation of privacy in their e-mails as in their snail mail letters and phone conversations, so that the government must obtain a search warrant before seizing and searching e-mails held by private e-mail providers.  Hat tip for this and the WSJ Law Blog item:  Ed Walters of FastCase.