Booking suspects Privacy advocates concerned by law enforcement's
attempts to subpoena records of what people read
By Bill Marvel
Published 07-09-2000
Books and readers, we like to think, have a special and protected
status in our society. The First Amendment to the Constitution
guards our right to write and read whatever we want, without
interference from authorities. So when police or prosecutors take
an interest in what we've been reading, many of us become uneasy.
And yet from time to time, police or prosecutors do take such an
interest. Last March, an agent of the U.S. Drug Enforcement
Administration appeared at one of Denver's Tattered Cover
Bookstores with a subpoena, demanding records of a customer's
purchases.
Alarm bells went off for owner Joyce Meskis. Ms. Meskis had
watched closely when independent counsel Kenneth Starr subpoenaed
Kramerbooks and Barnes & Noble in Washington, D.C., for Monica
Lewinsky's book purchase records.
Several years before, one of Ms. Meskis' customers had given her
permission to release his book purchase records to authorities.
She did it then but regretted it afterward. This time, she called
her attorney.
"The Kramer case was an important consciousness-raiser for us,"
says Ms. Meskis, whose store has two branches. "Most people
purchase a book expecting to take it home, and the reader and the
writer to have a private experience."
Knowing police have access to their purchase records, she says,
"would chill the environment to the extent that customers would
be fearful of purchasing books that might be considered, while
legal, something to be investigated.
"We believe in freedom of ideas."
In the months since, the Denver case has taken many turns.
Authorities still do not have the records they want. But Tattered
Cover isn't off the hook. The dispute is before a local judge,
who will make a decision after a hearing July 26.
In most states, police can't go to a public library to check
borrowing records. Laws protect public libraries from such
searches except under exceptional circumstances. But there is no
special law protecting a store that sells books.
And so both sides are watching the Tattered Cover case with
intense interest. To readers, booksellers and civil libertarians,
no less than the right to read and think freely is at issue. To
prosecutors and law enforcement officers, the ability to obtain
legitimate evidence is in jeopardy.
*
And why should anyone want to know what books we buy or read?
And, if we have nothing to hide, why should we care if they know?
Because during the trial of Timothy McVeigh, part of the evidence
the government introduced to link the suspect to the Oklahoma
City bombing was purchase records for three how-to books on
building bombs.
In 1997, the day after fashion designer Gianni Versace was shot
to death, Miami police and FBI agents visited the Miami-Dade
Public Library to examine the patron records of suspected killer
Andrew Cunanan. The head librarian demanded a search warrant.
They came back with the warrant the next day and got the records.
(Mr. Cunanan had checked out a novel with no conceivable
connection to the Versace case, and had failed to return it.)
And not just books. The same year, an Oklahoma City judge decided
that the film version of Gunter Grass' novel The Tin Drum
contained child pornography. Police visited local video chains
and the public library, where they seized copies of the video,
along with customer records. Then they called on those who had
rented or borrowed The Tin Drum, warning them that they were in
possession of child pornography and demanding the copies.
But it was the Lewinsky case that really focused the attention of
booksellers and civil rights and privacy advocates.
By all accounts, the office of the special prosecutor was
following up reports that President Clinton had given Ms.
Lewinsky a copy of Walt Whitman's Leaves of Grass. Mr. Starr also
wanted to find out whether Ms. Lewinsky's own purchases included
Nicholas Baker's steamy Vox, a novel about phone sex.
Despite early reports that Kramerbooks would cooperate (provoking
librarians to picket the store), Barnes & Noble and Kramerbooks
hired lawyers and challenged the subpoena in federal court.
Ms. Lewinsky agreed to testify in exchange for immunity,
rendering the whole issue moot. But bookstores can claim a
partial victory, according to Theresa Chmara, counsel for The
Booksellers Foundation for Free Expression and The Freedom to
Read Foundation of the American Library Association. Ms. Chmara,
who was involved in the Kramerbooks case, is one of two attorneys
representing Tattered Cover.
Specifically, Federal District Court Judge Norma Holloway Johnson
ruled that because of the potential "chilling effect" on privacy
and First Amendment rights, the independent counsel's subpoena
would have to meet demanding tests.
"There had to be a compelling interest to require that the
information be turned over," says Ms. Chmara, "some rational and
reasonable nexus between what the independent counsel was
investigating and what was being sought. It's not just a fishing
expedition."
Does that ruling carry any weight in the Tattered Cover case?
"I think it does," says Ms. Chmara.
"There's a recognition that there are constitutional rights
involved. What the court recognized - and what we argued - was
that if bookstores are subject to just turning over the records
of what people are reading, people will be chilled."
*
Early this year, during a raid on a methamphetamine lab in a
house just north of Denver, members of the North Metro Drug Task
Force found two books: Advanced Techniques of Clandestine
Psychedelic and Amphetamine Manufacture by "Uncle Fester," and
The Construction and Operation of Clandestine Drug Laboratories
by "Jack B. Nimble." They also found a shipping envelope, a
credit card receipt and an invoice from Tattered Cover.
"Basically, these were books on how to commit a crime, since
amphetamine labs are illegal," says Lt. Mark Nicastle, the task
force commander.
"There was an address but no name on the label. The problem is
that the house was used by different people: Different people
lived there, girlfriends went out and picked up various
chemicals. To prove to a jury beyond the shadow of a doubt who
the lab belonged to, we needed to know who the books were sent
to."
An agent from the DEA, which works with the task force, got a
search warrant and went to Tattered Cover, prompting Ms. Meskis'
call to lawyer Daniel Recht.
"It was a subpoena issued by the DEA, which frankly has no teeth
whatsoever," says Mr. Recht. "I told the DEA individual to get a
subpoena from the federal district court. He said we don't want
to go that route."
When the DEA backed off, the drug task force turned to the Adams
County district attorney's office in hopes of getting a search
warrant. "But they said it was not a political battle they
thought we should fight," says Lt. Nicastle. "There were First
Amendment issues that would get the media involved.
"My view was, don't worry about our politics."
Fran Wasserman, the county's chief trial deputy district
attorney, says generally speaking, police and prosecutors have no
interest in what people read.
"There can be times, though, when information a bookstore has,
whether it's billing information or other information, can tie
into evidence found at the scene of a crime.
"We simply told [the task force] it was appropriate to explore
some other investigative avenues before we'd seek a search
warrant that would raise First Amendment issues. I thought other
routes, from our perspective, would produce as good or better
information."
Lt. Nicastle disagreed, he said, "so we went to Denver, which had
jurisdiction over Tattered Cover." With approval from the Denver
DA's office, the task force got a search warrant from a Denver
judge and, two weeks after the DEA visit, returned to the
bookstore.
"I went in there with a team of Denver cops," says Lt. Nicastle.
"I sat on Joyce Meskis' stinking antique furniture, I drank tea
with her - I exaggerate slightly. But she was very polite. She
was a very nice lady. Her attorney was on the speaker phone. He
threatened to get the media on us."
Mr. Recht was, in fact, furious.
"That was forum shopping," he says, "going from one jurisdiction
to another without allowing Tattered Cover to litigate the matter
in court."
After a phone conversation between Mr. Recht and the Denver DA's
office, police left the bookstore.
"I told them they've got seven days, or we'll be back," says Lt.
Nicastle. "Six and a half days later, they got a temporary
restraining order."
A hearing on a permanent injunction will be held this month.
In the meantime, says Lt. Nicastle, "this stops our
investigation. The kicker is, when we get the information, it may
not even connect the guy we're interested in. We could be barking
up the wrong tree. But we won't know that until we get the
information.
"The thing is, we were so specific about these two books: Who
purchased them? We'd done all the other things, fingerprinting
and things like that. We're not looking for a reading list."
In the meantime, he points out, whoever ran the methamphetamine
lab remains at large.
*
"The framers of the Constitution were very suspicious of any
government that expressed an interest in anyone's train of
thought," says Bryan Pfaffenberger, who teaches the ethics of
privacy in the University of Virginia Department of Media
Studies.
"A person should be held to account for what he does, and to some
extent for what he says. But it's very dangerous to hold him to
account for what he thinks."
In the Soviet empire, Mr. Pfaffenberger points out, mere
possession of certain books was proof that one was an enemy of
the state: "You could get into trouble. Your neighbors and
friends would turn you in.
"This fact was recognized by state legislatures when they passed
laws protecting library records."
According to Judith Krug, director of the Office for Intellectual
Freedom, 47 of the 50 states have such laws. (Exceptions: Ohio,
Kentucky and Hawaii.)
Such laws have not always kept police from prying into those
records, says Ms. Krug. "Over the years - and for good reason -
one law enforcement agency after another 'rediscovers' the value
of the library as a tool of investigation. They think, 'Ah, what
does this guy read?' The assumption is that if you read
something, say, about homosexuality, you must be gay.
"We're compiling hundreds of incidents. A young girl here in the
Chicago area found an abandoned baby in an alley and took it to
the police station. And police went to the library and found out
a month before she had checked out a book on child care."
Oklahoma City police who tracked down The Tin Drum not only
violated that state's library protection laws, says Ms. Chmara,
who also was involved in that case, but the Federal Video Privacy
and Protection Act as well.
This federal law, passed after reporters got records of videos
rented by Supreme Court nominee Robert Bork, protects the rights
of video rental stores and their customers.
Should there be an equivalent Bookstore Privacy and Protection
Act?
Steven Shiffrin, a Cornell University law professor specializing
in First Amendment issues, isn't convinced.
"Police can go to the telephone company and get your telephone
records," he says. "They can find out from the post office who's
sending me mail and who I'm sending mail to. They can go through
your garbage, and they can do that without probable cause.
"I don't see how a bookstore is in any different position from a
telephone company or a bank.
"Should there be a special privilege because it's books? Once
you've got no special privilege because it's mail, it's a very
hard case to make."
Arguments that police access to bookstore records would have a
"chilling effect" must be balanced against law enforcement
interests.
But the "chilling effect" argument is on very thin ice, he says.
"There might be some customers who will be chilled. And some may
not be enough" to carry much weight in court.
=================================================================
Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF: <[EMAIL PROTECTED]>
*Mike Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~ <[EMAIL PROTECTED]>
The Best Way To Destroy Enemies Is To Change Them To Friends
Shalom, A Salaam Aleikum, and to all, A Good Day.
=================================================================
<A HREF="http://www.ctrl.org/">www.ctrl.org</A>
DECLARATION & DISCLAIMER
==========
CTRL is a discussion & informational exchange list. Proselytizing propagandic
screeds are unwelcomed. Substance—not soap-boxing—please! These are
sordid matters and 'conspiracy theory'—with its many half-truths, mis-
directions and outright frauds—is used politically by different groups with
major and minor effects spread throughout the spectrum of time and thought.
That being said, CTRLgives no endorsement to the validity of posts, and
always suggests to readers; be wary of what you read. CTRL gives no
credence to Holocaust denial and nazi's need not apply.
Let us please be civil and as always, Caveat Lector.
========================================================================
Archives Available at:
http://peach.ease.lsoft.com/archives/ctrl.html
<A HREF="http://peach.ease.lsoft.com/archives/ctrl.html">Archives of
[EMAIL PROTECTED]</A>
http:[EMAIL PROTECTED]/
<A HREF="http:[EMAIL PROTECTED]/">ctrl</A>
========================================================================
To subscribe to Conspiracy Theory Research List[CTRL] send email:
SUBSCRIBE CTRL [to:] [EMAIL PROTECTED]
To UNsubscribe to Conspiracy Theory Research List[CTRL] send email:
SIGNOFF CTRL [to:] [EMAIL PROTECTED]
Om
