Pubdate: Sun, 08 Apr 2001
Source: New York Times (NY)
Copyright: 2001 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Felicity Barringer

USING BOOKS AS EVIDENCE AGAINST THEIR READERS

WHEN the police arrived with a search warrant at the Tattered Cover 
bookstore in Denver last spring, they wanted to know what books a 
particular customer had bought. The man was suspected of manufacturing 
illegal drugs, and two drug "cookbooks" had been found in his laboratory. A 
mailing envelope with the bookstore's return address and an identifying 
order number were found in a trash can outside.

 From a law enforcement point of view, it was a routine matter, an attempt 
to tie a suspect to a crime. But for Joyce Meskis, the store owner, it was 
an assault on the First Amendment and the right to privacy. She refused the 
warrant and got a lawyer.

"This case is about the First Amendment. A bookstore is not like a hardware 
store with respect to criminal investigations," Ms. Meskis said.

Since then, her defiance has become a rallying cause among both First 
Amendment and privacy advocates.

"From a First Amendment perspective, having the government be able to go in 
and review an individual's buying or reading patterns will have an 
incredible chilling effect on a person's ability to consume," said Alvin 
Mark Domnitz, the chief executive of the American Booksellers Association.

In October, a trial court judge ruled that the Tattered Cover did not have 
to relinquish a month's worth of records, but did have to turn over records 
relating to the purchase of the drug cookbooks. Ms. Meskis has appealed.

In the past year, searches or subpoenas have also been sought for Borders 
bookstores in both Massachusetts and Kansas. The Kansas case also involves 
drug suspects; the Massachusetts case is a civil lawsuit and few details 
have emerged.

Informally, law enforcement officials have also sought information about 
book, music and video purchases made by customers of Amazon.com, according 
to the online retailer's lawyer, David Zapolsky. "We typically inform law 
enforcement that the request has the potential to violate privacy and First 
Amendment rights," Mr. Zapolsky said. "We don't give them the information.

"Where it gets tough is when somebody uses the actual product in the course 
of committing a crime. If somebody bought a crowbar from our hardware 
store." In those cases, Mr. Zapolsky said, Amazon tries to negotiate with 
law enforcement.

Prosecutors say they don't see a problem. "The issue is, is this evidence 
and is it clearly evidence?" said John Gill, a special counsel to the 
district attorney in Knoxville, who is on the board of the National 
Association of District Attorneys. "The more clear it is that you're going 
to find evidence of a criminal act, the more likely you are to be able to 
overcome people's privacy rights and seize that object or information. The 
more tenuous that connection to the crime, the less likely."

But Christopher Finan, president of the American Booksellers Foundation for 
Free Expression, said, "What we're afraid of is that it is a bad idea that 
is getting increasing publicity and occurring to more and more police - to 
short-circuit the investigative process and go straight to a bookstore."

To many people it is not just a bad idea, it is one that feels 
fundamentally wrong. "There is something, almost a sanctity of the 
experience of the reader and the author that we understand," said Marc 
Rotenberg, director of the Electronic Privacy Information Center, a privacy 
rights organization in Washington.

The problem today, Mr. Rotenberg added, is that "between the word and the 
reader is this digital world." That means, whether in a bookstore, library 
or video store, that computerized records exist of which ideas a person has 
chosen to spend time with.

THE first well-known attempt to investigate suspects' reading habits, or to 
use book purchases as evidence in court came during the Monica Lewinsky 
scandal, when the special prosecutor, Kenneth W. Starr, subpoenaed the 
records of Kramerbooks & afterwords, two Washington book stores, to 
determine if Ms. Lewinsky had bought "Vox," a novel about about phone sex 
by Nicholson Baker.

Until that subpoena, bookstores had basically been off-limits to 
prosecutors. Not so libraries and video stores. Libraries, according to 
Judith Krug, director of the Office for Intellectual Freedom of the 
American Library Association, were a focus of government investigators 
during the anti- Communist hysteria following World War II. In the 1980's, 
too, the Federal Bureau of Investigation sought to enlist librarians in an 
effort to track the reading habits of suspected agents of the Soviet Union, 
particularly when it involved technical works.

"At this point almost every state has some protection for libraries," said 
Theresa Chmara, a Washington lawyer who works with the library association. 
"For bookstores," she noted, "there's no corollary."

Video stores have their own special statute. In 1988, after a Washington 
journalist uncovered what videos had been rented by Judge Robert H. Bork, 
the unsuccessful nominee for the Supreme Court, Congress passed a video 
privacy protection bill,

That legislation offered no protection in 1997, however, when police 
officers arrived at the Oklahoma City home of Michael Camfield, having 
learned from his local Blockbuster video store that he had rented the movie 
"The Tin Drum." The officers said it was illegal to possess the film, which 
won an Academy Award in 1979, because it was child pornography under 
Oklahoma state law.

"They broke a federal privacy statute to get my name and address," said Mr. 
Camfield, who won a $2,500 judgment against local officials, the minimum, 
for their violation of the Federal Video Privacy Act. His claim against the 
city for violation of Constitutional protections against search and seizure 
were rejected in the trial court.

A year after the Oklahoma battle came Mr. Starr's subpoena of Ms. 
Lewinsky's book-buying records. Though Judge Norma Holloway Johnson's 
decision that Mr. Starr's office had "shown a substantial relationship 
between the specific evidence sought and the grand jury's investigation" 
was made moot when Ms. Lewinsky agreed to cooperate with Mr. Starr's 
office, that ruling was still possibly the only one on the specific 
question of a bookstore's right to keep customer records private.

JEFFREY ROSEN, an associate professor at George Washington University law 
school and the author of "The Unwanted Gaze: The Destruction of Privacy in 
America" (Random House, 2000), said, "There's been a dramatic shift in the 
law that happened so imperceptibly that we almost didn't realize how 
serious it was until the Lewinsky affair.

"For most of American history," he added, "it was considered 
unconstitutional and unreasonable to subpoena diaries, books" or other 
evidence that was not directly related to the commission of a crime.

Ms. Meskis does not seek an absolute privacy right in criminal 
investigations. Extensive, but not absolute. As she said in an interview, 
"when you have one right bumping up against another one and you are trying 
to determine which trumps which, well, the First Amendment is the bedrock 
of our governmental system. Whatever it would be that would trump that 
would have to be extraordinary."
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