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.
Maya Angelou reads from "The Heart of a Woman"
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