CDR: Denver Judge rules Cops can seize bookstore records
"If we can save but one child from the awful scourge of drugs..." Of course, the real issue here is why the bookstore was keeping such personalized records in the first place. -------- Judge: Cops can seize bookstore records http://www.denverpost.com/news/news1021b.htm By Susan Greene Denver Post Staff Writer Oct. 21, 2000 - Police will be allowed to search customer purchase records at the Tattered Cover Book Store to investigate a narcotics case, a Denver judge ordered Friday. Civil libertarians decried the order - believed to be the first of its kind nationwide - for protecting law enforcement's ability to obtain evidence over individual rights to read without interference from authorities. Tattered Cover owner Joyce Meskis said the order could have a "chilling effect" on the First Amendment and on store patrons, who might hesitate to buy books knowing that police have access to their purchase records. She is considering an appeal. "A bookstore is a house of ideas," she said. "We certainly have the responsibility to protect customers' rights to those ideas, and the right to privacy that goes along with that." Law enforcers hailed the order as a victory. "If it only takes one or two records from a bookstore to help us eliminate drugs on the street, then so be it," said Lt. Lori Moriarty, commander of the North Metro Drug Task Force, which is seeking the Tattered Cover records. "We need all the tools possible to help law enforcement do its job." The controversy stems from a March 14 raid on an Adams County mobile home in which task force members found a methamphetamine lab and two books: "The Construction and Operation of Clandestine Drug Laboratories" by "Jack B. Nimble," and "Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture" by "Uncle Fester." Investigators also found a bookshipping envelope containing an invoice number from the Tattered Cover in Lower Downtown Denver. They are hoping bookstore records will help pinpoint which of the six people who frequented the mobile home bought the books and, presumably, operated the lab. The task force first sought a search warrant from the Adams County district attorney's office, which rejected the request partially on grounds that executing it would give police a public relations "black eye." Task force members then turned to the Denver DA's office, which granted the warrant. Meskis blocked police from going through her store's records, saying they should instead use other investigative measures such as fingerprinting to find their suspect. Denver District Court temporarily blocked the task force from seizing the records, pending the outcome of a hearing before Judge Stephen Phillips. Most states have laws protecting public libraries from police searches except under exceptional circumstances, but there is no special law that protects bookstores. The issue made headlines in 1998, when independent counsel Kenneth Starr subpoenaed two Washington, D.C., bookstores for information on gifts exchanged between President Clinton and White House intern Monica Lewinsky. Barnes & Noble and Kramerbooks hired lawyers and challenged the subpoena in federal court. A federal judge quashed Starr's request for the records. Lewinsky, meantime, agreed to testify in exchange for immunity, rendering the whole issue moot. Still, the case was a watershed for bookstore owners and privacy advocates, who have been watching the Tattered Cover's legal battle with intense interest. Phillips, in his order, recognized the First Amendment right to "receive information and ideas, regardless of social worth," but he cited a legal balancing test weighing such rights against the importance of law enforcement to investigate crimes. Phillips ruled that the identity of the drug lab operators is "of significant public interest" and that "the purchase of how-to books is a highly important piece of evidence." The judge wrote that there's no other reasonable way, aside from seizing store records, for investigators to obtain the information they're seeking. He lauded the task force for asking only for specific invoices, not "stumbl(ing) through other private records." Phillips deemed the Tattered Cover case "dramatically different" than the Lewinsky case, about which he wrote: "The subpoenas were exploratory in nature, and the government was unable to show any need nor any nexus to a criminal event." And so Phillips denied investigators' broad request for a month's worth of records that might show all titles purchased by the unnamed suspects. Still, he granted police access to the specific invoice whose number appeared on the book mailer. Meskis has 15 days to appeal before the task force seizes her records. Moriarty insists it was never her unit's intent to comb through reading records of the general public. Rather, she said, Phillips' order will give investigators "an important piece of a puzzle" needed to nab their suspect. Critics say one arrest is a high price to pay for allowing a war against drugs to chip away at civil rights. "Key principles of the right to privacy and freedom of speech have ultimately been compromised in the decision," said Sue Armstrong, executive director of the American Civil Liberties Union in Colorado. Judith Krug, director of the Office for Intellectual Freedom at the American Library Association, said she worries that drug investigators unfairly are "making the connection between what people read and what they do." "Just because you read a book on homosexuality, for example, doesn't mean you're gay. And reading a book on the symptoms of cancer doesn't mean you have the disease," Krug said. "Our concern is that what people read, what goes into their heads will no longer remain private." KEY QUESTIONS: Denver District Judge Stephen Phillips posed four key questions as part of a legal balancing test in his ruling: 1. Is there a legitimate and significant government interest in acquiring the information? 2. Is there a strong nexus between the matter being investigated and the material being sought? 3. Is the information available from another source? 4. Is the intrusion limited in scope so as to prevent exposure of other constitutionally protected matters? Copyright 2000 The Denver Post. All rights reserved. Related: Bookstore fights search warrant http://www.denverpost.com/news/news1018d.htm
Interesting - the article is a little confused on a few points - specifically, this is not the first time this has happened, the DEA subpoena'd records from a publisher of mushroom growing books back in the mid 90's. They also subpoena records from garden supply stores looking for people who buy too many grow lamps or hydroponic setups. Also, it doesn't sound like they're talking about a search warrant - those aren't issued by DA's, nor do their targets have an opportunity to argue about what's searched prior to the search, because the searches take place without notice and at gunpoint. It sounds like they're talking about a subpoena, which does afford the recipient a chance to get an attorney and argue about it prior to releasing information. Still, it's a good reminder that it can be dangerous to trust even good people with sensitive information - the good people may not willingly betray you, but they may be forced to divulge the information on pain of losing money, property, or their life, or it may simply be stolen by armed gangs. At 12:45 PM 10/25/00 -0500, No User wrote:
Real-To: No User
"If we can save but one child from the awful scourge of drugs..."
Of course, the real issue here is why the bookstore was keeping such personalized records in the first place.
-------- Judge: Cops can seize bookstore records http://www.denverpost.com/news/news1021b.htm
By Susan Greene Denver Post Staff Writer
Oct. 21, 2000 - Police will be allowed to search customer purchase records at the Tattered Cover Book Store to investigate a narcotics case, a Denver judge ordered Friday.
Civil libertarians decried the order - believed to be the first of its kind nationwide - for protecting law enforcement's ability to obtain evidence over individual rights to read without interference from authorities.
Tattered Cover owner Joyce Meskis said the order could have a "chilling effect" on the First Amendment and on store patrons, who might hesitate to buy books knowing that police have access to their purchase records. She is considering an appeal.
"A bookstore is a house of ideas," she said. "We certainly have the responsibility to protect customers' rights to those ideas, and the right to privacy that goes along with that."
Law enforcers hailed the order as a victory.
"If it only takes one or two records from a bookstore to help us eliminate drugs on the street, then so be it," said Lt. Lori Moriarty, commander of the North Metro Drug Task Force, which is seeking the Tattered Cover records. "We need all the tools possible to help law enforcement do its job."
The controversy stems from a March 14 raid on an Adams County mobile home in which task force members found a methamphetamine lab and two books: "The Construction and Operation of Clandestine Drug Laboratories" by "Jack B. Nimble," and "Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture" by "Uncle Fester."
Investigators also found a bookshipping envelope containing an invoice number from the Tattered Cover in Lower Downtown Denver. They are hoping bookstore records will help pinpoint which of the six people who frequented the mobile home bought the books and, presumably, operated the lab.
The task force first sought a search warrant from the Adams County district attorney's office, which rejected the request partially on grounds that executing it would give police a public relations "black eye."
Task force members then turned to the Denver DA's office, which granted the warrant.
Meskis blocked police from going through her store's records, saying they should instead use other investigative measures such as fingerprinting to find their suspect.
Denver District Court temporarily blocked the task force from seizing the records, pending the outcome of a hearing before Judge Stephen Phillips.
Most states have laws protecting public libraries from police searches except under exceptional circumstances, but there is no special law that protects bookstores.
The issue made headlines in 1998, when independent counsel Kenneth Starr subpoenaed two Washington, D.C., bookstores for information on gifts exchanged between President Clinton and White House intern Monica Lewinsky. Barnes & Noble and Kramerbooks hired lawyers and challenged the subpoena in federal court.
A federal judge quashed Starr's request for the records. Lewinsky, meantime, agreed to testify in exchange for immunity, rendering the whole issue moot.
Still, the case was a watershed for bookstore owners and privacy advocates, who have been watching the Tattered Cover's legal battle with intense interest.
Phillips, in his order, recognized the First Amendment right to "receive information and ideas, regardless of social worth," but he cited a legal balancing test weighing such rights against the importance of law enforcement to investigate crimes.
Phillips ruled that the identity of the drug lab operators is "of significant public interest" and that "the purchase of how-to books is a highly important piece of evidence."
The judge wrote that there's no other reasonable way, aside from seizing store records, for investigators to obtain the information they're seeking. He lauded the task force for asking only for specific invoices, not "stumbl(ing) through other private records."
Phillips deemed the Tattered Cover case "dramatically different" than the Lewinsky case, about which he wrote: "The subpoenas were exploratory in nature, and the government was unable to show any need nor any nexus to a criminal event."
And so Phillips denied investigators' broad request for a month's worth of records that might show all titles purchased by the unnamed suspects. Still, he granted police access to the specific invoice whose number appeared on the book mailer.
Meskis has 15 days to appeal before the task force seizes her records.
Moriarty insists it was never her unit's intent to comb through reading records of the general public. Rather, she said, Phillips' order will give investigators "an important piece of a puzzle" needed to nab their suspect.
Critics say one arrest is a high price to pay for allowing a war against drugs to chip away at civil rights.
"Key principles of the right to privacy and freedom of speech have ultimately been compromised in the decision," said Sue Armstrong, executive director of the American Civil Liberties Union in Colorado.
Judith Krug, director of the Office for Intellectual Freedom at the American Library Association, said she worries that drug investigators unfairly are "making the connection between what people read and what they do."
"Just because you read a book on homosexuality, for example, doesn't mean you're gay. And reading a book on the symptoms of cancer doesn't mean you have the disease," Krug said.
"Our concern is that what people read, what goes into their heads will no longer remain private."
KEY QUESTIONS:
Denver District Judge Stephen Phillips posed four key questions as part of a legal balancing test in his ruling:
1. Is there a legitimate and significant government interest in acquiring the information?
2. Is there a strong nexus between the matter being investigated and the material being sought?
3. Is the information available from another source?
4. Is the intrusion limited in scope so as to prevent exposure of other constitutionally protected matters?
Copyright 2000 The Denver Post. All rights reserved.
Related: Bookstore fights search warrant http://www.denverpost.com/news/news1018d.htm
-- Greg Broiles gbroiles@netbox.com
At 12:45 PM -0500 10/25/00, No User wrote:
"If we can save but one child from the awful scourge of drugs..."
Of course, the real issue here is why the bookstore was keeping such personalized records in the first place.
Probably just credit card receipts, naturally linked to the products bought. Paying cash works. For now. More comments below.
-------- Judge: Cops can seize bookstore records http://www.denverpost.com/news/news1021b.htm
By Susan Greene Denver Post Staff Writer
Oct. 21, 2000 - Police will be allowed to search customer purchase records at the Tattered Cover Book Store to investigate a narcotics case, a Denver
judge ordered Friday.
Civil libertarians decried the order - believed to be the first of its kind nationwide - for protecting law enforcement's ability to obtain evidence over individual rights to read without interference from authorities.
And once again the "civil libertarians" have gotten the issues confused. The First Amendment does not say that ordinary subpoenas, discovery, and court orders for some reason do not apply to bookstores! As with "shield laws" for reporters, this is a wrong-headed idea. A bookstore is a business. It may even be _me_. Whether I sell a book to Alice or a roll of detcord to Alice, if faced with a valid court order to tell what I know, I must. Arguments that Alice has some right to "read without interference" won't cut it. Of course, that bookstore may choose to keep no records, by either purging past records, insisting on cash, or encouraging/requiring the use of unlinkable cards. Granted, this is not likely to happen today, for various reasons. What _would_ be an unconstitutional act would be a law _requiring_ a bookstore to keep linkable records, a kind of "reading escrow." Or requiring a library to have a "Library Awareness Program" to report suspicious activities. But a bookstore purchase record, once it exists, is no different from any other business or other record. It is subject to subpoena. Bookstores have no special exemptions that any of the rest of us don't have, any more than reporters have any special exemptions from subpoenas that the rest of us don't have. (Hint: "the rest of us" is the misleading point. We are all reporters, we are all book sellers. We are all first class objects.) --Tim May -- ---------:---------:---------:---------:---------:---------:---------:---- Timothy C. May | Crypto Anarchy: encryption, digital money, ComSec 3DES: 831-728-0152 | anonymous networks, digital pseudonyms, zero W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets, "Cyphernomicon" | black markets, collapse of governments.
On Wed, Oct 25, 2000 at 12:18:40PM -0700, Tim May wrote:
And once again the "civil libertarians" have gotten the issues confused. The First Amendment does not say that ordinary subpoenas, discovery, and court orders for some reason do not apply to bookstores!
Two thoughts: * It is possible that "ordinary discovery" has gone too far in the U.S. Shielded areas, such as bookstores protected by this view of the 1A, might be a good thing. * Richard Epstein has a nice piece in the May 2000 Stanford Law Review (I was reading it last night). Epstein argues against "First Amendment exceptionalism," which grants speech more protection than the common law would afford. He says that creates weird side effects that prohibit things like trespass to obtain private information but say (if such info is leaked to a newspaper) that info can be published without, generally, any recourse by the aggrieved party. All of this may not be relevant once anonymous publishing -- or shall I say consequence-less publishing? -- becomes more widespread. -Declan
----- Original Message -----
From: Declan McCullagh
Two thoughts: * It is possible that "ordinary discovery" has gone too far in the U.S. Shielded areas, such as bookstores protected by this view of the 1A, might be a good thing.
It's about as "possible" as the "possibility" of the sun coming up over the horizon tomorrow morning. We all know that the system really doesn't work the way it is supposed to. The standard is SUPPOSED to be "probable cause" which should arguably mean that "the policeman knows that a crime has been committed and that there is at least a 51% probability that evidence of that crime is at the place in question." But in fact logic is totally ignored. We already know that the only evidence likely at the book store is that which points to the identity of the person who bought the book on the subject of drugs. Buying that book was not, in itself, a crime. And, in fact, the purchase of the book may have occurred before the drug-lab-manufacturing "crime." Thus, it is obvious that there is virtually certain to be no evidence at the book store of the crime for which the police are investigating. In fact, what the police are looking for might best be called "non-crime evidence." Information tending to prove or disprove acts which were NOT crimes. Iinterestingly enough, as far as I know the "justice system" (yucch!) doesn't have a separate term for "evidence that is not the evidence of a crime." It's just called "evidence." There's a problem with this, as I learned firsthand: Authorities drop by, take lots of stuff, and then tell the news media that "evidence was collected and removed." Problem is, neither at the time it was taken nor later was it actually "evidence" of some sort of crime. What they actually should have said was that "non-evidence was taken" but expecting them to be that honest is futile. If anybody is aware of a commonly (or, even, uncommonly) used term for "non-evidence-evidence" I' like to hear it.
* Richard Epstein has a nice piece in the May 2000 Stanford Law Review (I was reading it last night). Epstein argues against "First Amendment exceptionalism," which grants speech more protection than the common law would afford. He says that creates weird side effects that prohibit things like trespass to obtain private information but say (if such info is leaked to a newspaper) that info can be published without, generally, any recourse by the aggrieved party.
All of this may not be relevant once anonymous publishing -- or shall I say consequence-less publishing? -- becomes more widespread. -Declan
In this case, I'd say the issue is more like "consequenceless book-buying," not publishing. Nobody is talking about charging the book store with any crime. I think that businesses (including bookstores) should be entitled to do business with customers, giving binding promises to not share information about those transactions with anybody including police and courts, perhaps unless the transaction itself was criminal. Anybody ever heard of "impairment of contract"? Jim Bell
participants (5)
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Declan McCullagh -
Greg Broiles -
jim bell -
No User -
Tim May