Return-Path: <sentto-279987-4474-1013761776-fc=all.net@returns.groups.yahoo.com> Delivered-To: fc@all.net Received: from 204.181.12.215 [204.181.12.215] by localhost with POP3 (fetchmail-5.7.4) for fc@localhost (single-drop); Fri, 15 Feb 2002 00:50:11 -0800 (PST) Received: (qmail 20210 invoked by uid 510); 15 Feb 2002 08:29:50 -0000 Received: from n10.groups.yahoo.com (216.115.96.60) by all.net with SMTP; 15 Feb 2002 08:29:50 -0000 X-eGroups-Return: sentto-279987-4474-1013761776-fc=all.net@returns.groups.yahoo.com Received: from [216.115.97.187] by n10.groups.yahoo.com with NNFMP; 15 Feb 2002 08:29:36 -0000 X-Sender: fastflyer28@yahoo.com X-Apparently-To: iwar@yahoogroups.com Received: (EGP: mail-8_0_2); 15 Feb 2002 08:29:35 -0000 Received: (qmail 66857 invoked from network); 15 Feb 2002 08:29:35 -0000 Received: from unknown (216.115.97.172) by m6.grp.snv.yahoo.com with QMQP; 15 Feb 2002 08:29:35 -0000 Received: from unknown (HELO web14502.mail.yahoo.com) (216.136.224.65) by mta2.grp.snv.yahoo.com with SMTP; 15 Feb 2002 08:29:35 -0000 Message-ID: <20020215082935.77520.qmail@web14502.mail.yahoo.com> Received: from [12.78.121.179] by web14502.mail.yahoo.com via HTTP; Fri, 15 Feb 2002 00:29:35 PST To: iwar@yahoogroups.com In-Reply-To: <200202150609.g1F69qB08690@red.all.net> From: "e.r." <fastflyer28@yahoo.com> X-Yahoo-Profile: fastflyer28 Mailing-List: list iwar@yahoogroups.com; contact iwar-owner@yahoogroups.com Delivered-To: mailing list iwar@yahoogroups.com Precedence: bulk List-Unsubscribe: <mailto:iwar-unsubscribe@yahoogroups.com> Date: Fri, 15 Feb 2002 00:29:35 -0800 (PST) Subject: Re: [iwar] [fc:Big.Brother.is.watching.you.read] Reply-To: iwar@yahoogroups.com Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 8bit 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 & > 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 & 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." > > ------------------------ Yahoo! Groups Sponsor > > ------------------ > http://all.net/ > > Your use of Yahoo! Groups is subject to > http://docs.yahoo.com/info/terms/ > > __________________________________________________ Do You Yahoo!? Got something to say? Say it better with Yahoo! Video Mail http://mail.yahoo.com ------------------------ Yahoo! Groups Sponsor ---------------------~--> Sponsored by VeriSign - The Value of Trust Secure all your Web servers now - with a proven 5-part strategy. 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