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Big Brother is watching you read | 1, 2, 3, 4

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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About the writer
Christopher Dreher is a writer in Pittsburgh.

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