Re: [iwar] [fc:Big.Brother.is.watching.you.read]

From: e.r. (fastflyer28@yahoo.com)
Date: 2002-02-15 00:29:35
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From: "e.r." <fastflyer28@yahoo.com>
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Date: Fri, 15 Feb 2002 00:29:35 -0800 (PST)
Subject: Re: [iwar] [fc:Big.Brother.is.watching.you.read]
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So is big sister. Check my note on 19-21.
--- Fred Cohen <fc@all.net> wrote:
> Big Brother is watching you read
> Increasingly, the government is demanding that bookstores reveal what
> books
> their customers have purchased. Bookstore owners and privacy
> advocates say
> that's scarier than a Stephen King novel.
> 
> - - - - - - - - - - - -
> By Christopher Dreher
> 
> Feb. 13, 2002  |  Joyce Meskis vividly remembers the day when five
> drug task
> force officers walked into her bookstore with a search warrant. "I
> was
> dumbstruck," she said. "Even though they were polite, it's a daunting
> experience." 
> 
> One of the largest independent booksellers in the country, Tattered
> Cover
> has over 100,000 titles and a study-like atmosphere with plenty of
> what
> Meskis calls comfortable "grandma's attic" furniture. The brick,
> turn-of-the-century building seems an unlikely place for criminals,
> and the
> police probably thought that day's task would be quick and easy. But
> almost
> two years later, the warrant demanding that Tattered Cover hand over
> records
> of one of its customers' purchases remains unexecuted, held off by
> lawyers
> and temporary restraining orders.
> 
> Although many people aren't aware of it, in the eyes of the law
> buying a
> book is different from buying a bicycle or a pack of cigarettes.
> Through the
> years, the protections accorded materials covered by the First
> Amendment,
> such as books and newspapers, have evolved to protect the
> institutions that
> provide those materials as well. So when law enforcement officials
> say they
> just want information about the books a suspect purchased,
> booksellers and
> civil rights advocates see the demand as something that could erode
> book
> buyers' privacy and First Amendment rights.
> 
> "If we allow law enforcement access to customer records whenever they
> think
> it's convenient, customers won't feel secure purchasing books and
> magazines
> that are their constitutional right to buy," said Chris Finan,
> president of
> the American Booksellers Foundation for Free Expression. "It's
> important
> because many books are very private, or about sensitive issues, and
> if they
> feel booksellers turn over buying information at regular intervals,
> customers won't buy those books." By extension, this could have a
> chilling
> effect on the types of books that end up being published.
> 
> Tattered Cover's ordeal began in March 2000, when the Adams County
> District
> Attorney's Office contacted Meskis to inform her that the Drug
> Enforcement
> Agency was planning to subpoena the store for one of her customer's
> sales
> records. During a raid of a methamphetamine lab in a trailer park in
> suburban Denver, authorities had found an empty Tattered Cover
> shipping
> envelope addressed to one of the suspects in an outside trashcan, and
> two
> nearly new 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,
> inside the
> trailer. The DEA planned to strengthen its case by tying the
> suspect's
> illegal activities to his purchases of books outlining how to make
> methamphetamine. 
> 
> Meskis answered that such a request was a violation of First
> Amendment
> rights and said she would fight it in court. "I thought that was the
> end,"
> she recalled, "but it wasn't." Instead of bringing it to court, the
> DEA
> persuaded a judge to authorize a search warrant, which would be
> immediately
> executable and would bypass judicial interference. That's how the
> five
> task-force officers wound up in her bookstore.
> 
> Meskis' first try at quashing the warrant wasn't as successful as
> she'd
> hoped. In October 2000, a Denver district court judge narrowed the
> warrant's
> scope but ordered the store to turn over the information. She
> appealed that
> ruling to the Colorado Supreme Court, and on Dec. 5, 2001, lawyers
> from both
> sides presented oral arguments. The decision is expected sometime
> this
> spring. 
> 
> The case has attracted nationwide media attention and the support of
> dozens
> of civil liberties groups and a phalanx of writers. On Jan. 11, at
> San
> Francisco's A Clean Well-Lighted Place for Books bookstore, over 500
> people
> attended a benefit to help defray legal costs that have arisen from
> the
> case. Daniel Handler, author of the Lemony Snicket series, helped
> organize
> the event, attended by other literary luminaries such as Pulitzer
> prizewinner Michael Chabon, McSweeney's editor Dave Eggers and
> novelist
> Dorothy Allison. "It's startling and disappointing to me," Handler
> said
> about the case. "There are so few countries where you can't get in
> trouble
> for what you read, and the U.S. appears to be falling from that short
> list."
> 
> In fact, according to Finan, less-publicized demands by law
> enforcement for
> customer information have become "alarmingly" more frequent over the
> past
> two years. And not only independent booksellers, but giants like
> Borders and
> Amazon, have been subpoenaed. In perhaps the most egregious case,
> authorities ordered Amazon to give them a list of all customers in a
> large
> part of Ohio who had ordered two sexually oriented CDs. Independent
> booksellers have been especially hard-hit by these cases. And
> fighting them
> without the benefit of a corporate budget or in-house counsel means
> hefty
> legal bills and months, if not years, of hassle.
> 
> "It's a big problem," said attorney Theresa A. Chmara of Jenner &amp;
> Block in
> Washington, DC, who is on the ABFFE board and wrote an amicus brief
> for
> Tattered Cover. "This is an opportunity for a state supreme court to
> determine how these cases should be done and explicitly define how
> they
> should be handled."
> 
> Meskis, Finan and other advocates contend that bookstores need the
> same
> protection of their patrons' rights that suppliers of other types of
> First
> Amendment materials enjoy. For example, in 1987, after a Washington
> weekly
> newspaper published a list of videos rented by Supreme Court nominee
> Robert
> Bork, Congress passed the Video Privacy Protection Act, which
> severely
> limits the information video stores may release about their
> customers.
> Public and private libraries have for decades butted heads with
> groups and
> individuals attempting to gain access to their lending records, and
> there
> are now statutes in 48 states that restrict the ability of librarians
> to
> give out such information.
> 
> Even if law enforcement officials believe they urgently need the
> information, it's much harder for them to get First Amendment
> materials than
> to get credit-card receipts or phone records. The court applies a
> higher
> standard to warrants or subpoenas for such materials. It requires
> demonstration of compelling need for the information and direct
> relevance to
> the investigation; the requests must be limited in scope, and are to
> be made
> only after all other investigative outlets have been exhausted.
> 
> The problem bookstores face is that there is little precedent
> regarding law
> enforcement's right to search their records.
> 
> In 1998, Independent Counsel Kenneth Starr made the first attempt --
> at
> least, the first attempt that free speech activists know of -- to get
> customer sales records from a bookstore. It came pursuant to Starr's
> investigation of Monica Lewinsky's affair with former President Bill
> Clinton. He subpoenaed two Washington area bookstores for information
> about
> her purchases. One store, Kramerbooks, was especially adamant when
> they
> refused the request, and the case went to court. Chief U.S. District
> Judge
> Norma Holloway Johnson refused to quash the subpoena but stated that
> the
> bookstore had successfully shown that the subpoena had a potential
> chilling
> effect on First Amendment rights. She ruled that the government must
> prove
> "a compelling need for the materials it seeks and whether there is a
> sufficient connection between that information and the grand jury's
> investigation." Kramerbooks planned to fight that decision, but the
> case was
> resolved when Lewinsky agreed to provide the records voluntarily.
> 
> "There's so little precedent, given the fact that bookstores didn't
> have to
> worry about these requests until the Lewinsky case," said Judith
> Krug,
> director of the office for intellectual freedom for the American
> Library
> Association. "But that opened the floodgates."
> 
> Since then, four other cases, including Tattered Cover's, have come
> up, and
> in each one the bookstore chose to fight. According to Finan, "Many
> of the
> requests have been outright fishing expeditions. They haven't been
> respectful of privacy rights or the First Amendment.
> 
> "We're not asserting a categorical First Amendment for all records,"
> Finan
> explained. "But in many cases, police don't do everything they should
> have
> done. They left avenues uninvestigated and went to the bookstore
> because
> it's more convenient for them. They should never have access until
> they have
> done everything they can. They need to respect bookstores for what
> they are:
> purveyors of ideas, not a hardware store."
> 
> What the district attorney's office didn't realize when they messed
> with
> Meskis was that she was probably the last person in the country with
> whom
> they wanted to pick this type of fight. She is a former president of
> the
> American Booksellers Association and chair of the task force that
> established ABFFE. She is also one of the coauthors of the group's
> pamphlet
> "Protecting Customer Privacy in Bookstores," and is a veteran of
> several
> Colorado First Amendment challenges.
> 
> Meskis' attorney, Daniel Recht, called the Denver D.A.'s office and
> was
> granted an unusual one-week extension before the search warrant was
> carried
> out, which enabled them to get a temporary restraining order and
> bring the
> case to court. 
> 
> Attorney Andrew Nathan, of Nathan, Bremer, Dumm &amp; Myers, gave
> oral arguments
> to the Colorado State Supreme Court on behalf of law enforcement and
> said
> that the suspect's book purchases are an essential piece of evidence
> and
> that authorities are merely trying to obtain information during the
> investigation of a crime. "It's a business record, a single business
> record," he said. "We're not exploring the reading habits of the
> suspect.
> We're not asking [them] to tell us everyone they sold the book to.
> The
> warrant only seeks to know if the suspect bought books about
> manufacturing
> of methamphetamine at meth labs."
> 
> Recht contends that the customer sales records have limited relevance
> to the
> investigation and that there is no compelling need for law
> enforcement to
> bypass First Amendment protections.
> 
> "It's not an issue of getting bad guys and having a bunch of
> intellectuals
> getting in the way of doing that job," Recht said. "This is a very
> important
> issue. Book readers need to be confident that the government will not
> know
> what they buy and read. That's inherent in the freedom of expression.
> There's no absolute privilege, but you can't let law enforcement
> trample
> over the First Amendment."
> 
> Like Krug, Recht blames Starr's initial attempt for the subsequent
> subpoenas. "After Starr attempted to subpoena for the records, law
> enforcement saw that they can attempt to get this information. And
> they've
> tried ever since." 
> 
> But while law enforcement might be able to construe a plausible
> argument for
> trying to get the Tattered Cover information, other cases since the
> Lewinsky
> subpoena have had less legal strength. In fact, in some instances,
> law
> enforcement agencies have asked for the information when they clearly
> should
> have never sought it in the first place.
> 
> Of the three other cases, two involved giant corporate booksellers
> that were
> savvy about the law and had the financial resources to combat the
> request.
> In the summer of 2000, a Borders store in suburban Johnson County,
> Kan.,
> near Kansas City, was subpoenaed for information regarding a sealed
> indictment in a drug case. When the company's lawyers fought the
> subpoena, a
> federal judge quashed it.
> 
> A more recent case evolved out of the investigation of New Jersey
> Democratic
> Sen. Robert Torricelli. The FBI subpoenaed a number of bookstores
> around the
> country for cash purchases made by Torricelli and seven other people
> as far
> back as 1995. "They ran roughshod, and colored outside the lines on
> this
> one," said Phil Bevis, owner of one of the subpoenaed stores, Arundel
> Books
> in Seattle and Los Angeles. "The Justice Department drafts these
> ridiculous
> subpoenas and warrants that are not even in accord with their own
> standards,
> let alone the law."
> 
> Bevis said that when the FBI agent arrived and started interrogating
> his
> staff, it was intimidating and served as a "gut check," but that even
> if he
> ended up losing the case or going to jail, he knew what decision he
> would
> make. "At the end of the day, I know that I decided that if we were
> required
> to report reading habits to the government, I'm out. Once you reach
> that
> decision, you're not going to do it on any level."
> 
> Bevis said he was surprised that law enforcement would place such
> importance
> on someone's book purchases, since in many cases the information
> would be
> difficult to interpret or would be misleading. For example, if a
> banker buys
> a book on money laundering or a FBI agent buys something about
> terrorism,
> it's likely that he is researching matters related to his profession,
> not
> planning those activities.
> 
> "You think about the information we have about people, but without
> context,
> its just information," he said. "They see this as any chance to make
> a case,
> but they're not looking five moves ahead. They don't want this
> information
> to be public, either. Nobody wants the information we have to be
> communicated to employers or to the government. Nobody wants to edit
> what
> they think, or the books they buy. I've never had anyone say they're
> not
> interested in their privacy, but thousands have said the exact
> opposite."
> 
> Although the Justice Department eventually dropped the requests when
> it
> found out that Bevis and other storeowners would fight the subpoenas,
> it
> wasn't a total victory. "It's going to take us years to pay off the
> attorney
> bills," he said. "The whole thing was expensive and time consuming
> and it's
> not my job to get the Justice Department to do their job. I've lost a
> lot of
> respect for my government over this. It's a disgrace."
> 
> Perhaps the most wide-ranging request for customer information of
> this kind
> came in the summer of 2000, when Ohio authorities subpoenaed
> Amazon.com.
> They requested records of all the people in a large part of Ohio who
> had
> purchased the "Cyborgasm I" and "Cyborgasm II" audio CDs, trying to
> identify
> a stalking suspect who had sent the CDs to his victims.
> 
> Amazon attorney David Zapolsky says the company told Ohio authorities
> that
> Amazon would not answer an out-of-state subpoena and that it wasn't
> the
> company's policy to give out that information. "We always raise the
> First
> Amendment issue when we're confronted with a request for buying
> habits or
> reading material, because it's a serious request," he said.
> 
> But Ohio authorities were persistent. They asked the Seattle district
> attorney to issue a search warrant for the information. Then Amazon
> officials found out something that Ohio authorities hadn't told them:
> Although the case was still technically open, the primary suspect
> that Ohio
> was hoping to match to the purchases -- local TV personality Joel
> Rose --
> had committed suicide a few weeks earlier. Ohio authorities had
> suspected
> that Rose was the stalker. After police took DNA samples from Rose
> and the
> story broke in the news, Rose wrote notes to his family and public
> officials
> denying his involvement, and then shot himself in the woods behind
> his
> house. Ohio authorities were apparently hoping the Amazon sales
> records
> would clear them of the perception that they pushed an innocent man
> to
> suicide. Ultimately, the Seattle D.A.'s office refused to issue the
> search
> warrant. As it turned out, Rose's DNA did not match the DNA found on
> some of
> the stalker's mailings.
> 
> While these cases represent failures by law enforcement to procure
> records,
> there may have been unpublicized cases where authorities were
> successful.
> 
> "Most bookstores don't have the financial wherewithal or the desire
> to fight
> these types of requests," Recht explained. "Also, they may be unaware
> of the
> First Amendment issues and just turn over the information." He added
> that
> most of these cases were likely to go unreported, for booksellers
> would not
> want to publicize that they were ignorant of the law or that they
> would give
> out their customers' records. A favorable decision by the Colorado
> Supreme
> Court in the Tattered Cover case, he says, would "show bookstores
> around the
> country that they do not have to and should not honor these subpoenas
> and
> that they need to protect First Amendment rights."
> 
> Recht said that if the decision goes against Tattered Cover, the only
> place
> to appeal is the U.S. Supreme Court, though he considers that a
> "remote
> possibility." 
> 
> "I'm cautiously optimistic," he said. "I think the oral arguments
> went well,
> but that doesn't necessarily mean that's the case." He also stated
> that the
> Colorado Supreme Court has a record of deciding such cases on the
> side of
> civil liberties. 
> 
> But however Colorado decides the case, the conflict between
> booksellers and
> law enforcement is far from over. In fact, although a decision for
> Tattered
> Cover would give attorneys a precedent, it wouldn't give bookstores
> the type
> of protection that libraries and video stores enjoy. In fact, courts
> in
> different states could decide differently on almost identical cases.
> Until
> there are laws similar to those protecting other types of First
> Amendment
> materials, cases between booksellers and law enforcement are likely
> to
> continue to be heard by courts around the country.
> 
> Finan hopes that the decision will at least halt the most egregious
> attempts
> to search bookstores' records. "If we don't fight this, then we'll
> see more
> and more cases that look like the Amazon case," he said. "Right now
> there is
> no protection and that's what we're trying to argue in court."
> 
> At Tattered Cover, Meskis said that if the decision goes against her,
> she
> plans to keep fighting against giving up the records. "That would be
> my
> inclination," she said. "We'd want to see it through to the end." But
> she
> said she hopes that it doesn't come to that.
> 
> "If these types of requests are allowed, there will be a distinct
> chilling
> effect felt as to the freedom of expression; otherwise I wouldn't be
> doing
> this," she said. "The debate within our government system as to right
> and
> wrong would be silenced, and that does not make for a healthy
> society."
> 
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