Booksellers Play Key Role in Reader Privacy Fight

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By Chris Finan, Director of the American Booksellers for Free Expression

It all started with Monica Lewinsky.

In 1998, Kenneth Starr probably didn’t think twice when he issued subpoenas to two Washington, D.C., bookstores for a list of all Lewinsky’s purchases. After all, he had issued hundreds of subpoenas during his investigation of President Bill Clinton. What was different about bookstores?

But Starr touched a nerve. Soon people were picketing in protest. The bookstores, Kramerbooks and Barnes & Noble, refused to comply. The American Booksellers Association and the American Booksellers Foundation for Free Expression (ABFFE) supported Kramerbooks in suing Starr for violating the First Amendment. Barnes & Noble filed a separate lawsuit. 

Seventeen years later, booksellers are continuing to fight for reader privacy. The latest battle is to pass the USA FREEDOM Act, a bill that would restore some of the privacy protections eliminated by the USA PATRTIOT Act, which passed in the terrifying weeks after the 9/11 attacks in 2001.

The U.S. House of Representatives has passed the FREEDOM Act by an overwhelming vote, but there is still a major battle underway in the Senate, where Senate Majority Leader Mitch McConnell (R-KY) is trying to defeat it. The Senate vote could occur over the weekend.

This seems like a good time to recall how the fight for reader privacy began. Many booksellers are too young to know the history, and others may be hazy on the details. 

Starr’s subpoena was shocking. ABA was unaware of any case in which a bookstore’s records had been subpoenaed. But booksellers were suddenly confronted with the danger posed by law enforcement officials seeking access to computerized inventory systems’ records containing information about the books their customers were buying.

The threat to free speech was clear: If the police can easily obtain records of the books that people are buying, customers will not feel free to buy the books they want. 

ABA and ABFFE contributed more than $100,000 toward Kramerbooks’ legal expenses and helped win an important victory, when the judge ruled that Starr was not entitled to know everything that Lewinsky had read. 

But Starr’s bookstore subpoenas had alerted police around the country to a new source of information for their investigations. In 2000, Denver police walked into the office of Joyce Meskis, owner of the Tattered Cover Book Store, and handed her a search warrant.   

That was a big mistake. Meskis is a veteran of many free speech fights, and she sued the police with financial support from ABA and ABFFE. In a unanimous opinion in 2002, the Colorado Supreme Court suppressed the search warrant on the grounds that it denied Tattered Cover the opportunity to seek court review of a potential violation of the First Amendment.

We were still waiting for a final decision in the Tattered Cover case when the PATRIOT Act became law in October 2001.

The PATRIOT Act eliminated all of the safeguards for reader privacy in terrorism investigations. Section 215 of the law authorizes the government to demand any tangible things that might be “relevant.” The searches are secret, and the secrecy is enforced by a gag order that prevents anyone from revealing that their records have been searched. It wasn’t even clear whether a Section 215 order could be challenged in the secret Foreign Intelligence Surveillance Court.

We were alarmed by the sweeping nature of Section 215. There appeared to be no way to prevent the government from engaging in fishing expeditions that would undermine the confidence of customers in the privacy of their reader records. 

We responded by creating the Campaign for Reader Privacy in 2004. ABA joined the American Library Association, the Association of American Publishers, and PEN American Center in launching a national petition campaign.

We were uncertain how booksellers would react to the idea of soliciting support from their customers, but more than 500 stores helped collect hundreds of thousands of signatures. In a ceremony at the Capitol, we presented the petitions to our hero, Bernie Sanders, author of the Freedom to Read Protection Act and then-U.S. representative from Vermont. Salman Rushdie was the event‘s master of ceremonies.

As a result of our efforts and those of ACLU and other allies, we succeeded in making a number of changes when Section 215 came up for renewal in 2005.  The reauthorization firmly established the right to challenge Section 215 orders.  It also provided that an order could not be served on booksellers or librarians without the approval of a senior official of the Justice Department.

However, we were not able to convince Congress to limit the government to searches of the records of people who are actually suspected of terrorism. Our prediction that such a broad power would be abused was confirmed by whistleblower Edward Snowden, who revealed that the National Security Agency is using a single Section 215 order to collect information about the telephone calls of millions of Americans every day.

So, here we are again, trying to make changes that will increase the privacy of bookstore and library records.

The FREEDOM Act does not go as far as we wish, but it does limit the ability of the government to engage in fishing expeditions. It requires all Section 215 orders to identify a specific person, address, or other “Specific Selection Term” (SST). To eliminate any possibility of misunderstanding, it states that the purpose of the SST is to limit “to the greatest extent reasonably practicable, the scope of tangible things sought.” The bill also makes it easier to determine whether the government is abusing its power.

This is a reform well worth supporting. Please take a minute today or tomorrow to call your senators and urge them to vote for the FREEDOM Act (S.1123). ABFE is co-sponsoring Fight215, a website that makes it easy to connect to someone in your senators‘ offices.

Booksellers must continue to play an important role in defending reader privacy.

Chris Finan is the director of the American Booksellers for Free Expression (formerly the American Booksellers Foundation for Free Expression) and the author of several books, including From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America (Beacon Press).

He welcomes comments and suggestions at [email protected].