New California Privacy Bill Raises Questions About Bloggers

by Wendy Davis, Oct 26, 2011, 5:20 PM

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Civil rights group cheered this month when California Governor Jerry Brown signed a measure aimed at protecting the privacy of people who read digital books. But a prominent law professor now says the bill might impose some new and unexpected obligations on individual bloggers.

The Reader Privacy Act updates a California book privacy law by prohibiting online book services from turning over information about readers without a court order. The law, which was sponsored by the Electronic Frontier Foundation and ACLU, is intended to ensure that people who buy digital books have the same confidentiality rights as purchasers of hard copies.

“The switch from books on dead trees to books online should not mean a reduction in our privacy,” says EFF legal director Cindy Cohn.

But Eric Goldman, director of the High Tech Law Institute at Santa Clara University, says California lawmakers might have imposed some new requirements on individual bloggers who aren't booksellers in the traditional sense.

That's because the statute's wording appears to leave room for interpretation about exactly who is covered by the law. The measure prohibits any “commercial entity” offering a book service from turning over information about readers without a court order. Goldman says in a blog post that the language appears broad enough to include individuals who operate ad-supported blogs.

“Consider that many blogs are, in fact, paginated (at least in the URL),” Goldman writes. “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,” he adds.

The result, says Goldman, is that bloggers could find themselves in violation of the law if they disclose information about commenters or readers without a court order. “The ambiguity of blogs as 'book services' means it’s possible California has imposed a new statutory obligation on bloggers,” Goldman says. “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.”

Not all Internet law experts agree with Goldman's interpretation. Paul Levy, a lawyer with the advocacy group Public Citizen, argues that the new statute doesn't apply to bloggers. “An individual is not an entity,” Levy writes. “So the individual blogger is plainly off the hook as a 'commercial entity.' A corporation that blogs, yes. ... But not an individual,” he says.

Cohn at the EFF says that the Reader Privacy Act wasn't intended to encompass bloggers. “I get that there is some ambiguity about what is a book,” Cohn says. But, she adds, “I don't think blogs are paginated. That's part of the reason we used that term.”

She says that although some blogs include page numbers in the URLs, courts will not necessarily consider that to be pagination because readers typically navigate blogs by scrolling, not by seeking out a specific page number.

Cohn also says she doesn't think that judges will consider bloggers to be the same kinds of commercial entities as traditional bookstores. “To the extent that someone tries to sue over this, it's unlikely that a court will find that a garden variety blog -- even one with ads -- qualifies for this law.”

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