Victory for Readers' Privacy

An Editorial from the Rocky Mountain News -- April 9, 2002

The Colorado Supreme Court's strong ruling Monday on behalf of civil liberties would have been remarkable even if the nation had not been engaged in a war on terrorism since last fall.

In upholding the Tattered Cover's right not to surrender its customers' book purchasing records to law enforcement, the high court ruled that henceforth, booksellers must be given an opportunity to appear at a hearing before such search warrants can be issued. Historically, law enforcement has made its case for a warrant unilaterally before a judge.

This was far more than the Tattered Cover's attorneys, Daniel Recht and Richard Kornfeld, had even asked for, and the delighted Recht believes it sets a national precedent that other state courts will take into consideration.

Justice Michael Bender, writing for a unanimous court, noted gratefully that the City of Thornton had voluntarily agreed to delay execution of a search warrant for the bookstore's customer records until its validity had been determined in court. But the city didn't have to, and if the warrant had been executed, it would have had a "chilling effect" on the book-buying public. This effect

Because Coloradans have a "privacy interest" in their book-buying records, this means "special protections" must be given to booksellers when governments come after their records. Thus the requirement that booksellers be invited to participate in the hearing on the warrant.

It will be a very controversial ruling, we predict, but on balance we think it's a good one.

The court made it clear that its decision doesn't offer a blanket protection for booksellers against every search warrant regarding customer purchase records. A "balancing test" must be made based on the facts of the case.

In the case at hand, law enforcement officials had found a mailing envelope from the Tattered Cover in the trash left outside a suspected methamphetamine lab. Inside the lab they found two dubious books (exactly the kind that the First Amendment is supposed to protect): Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture by "Uncle Fester" and The Construction and Operation of Clandestine Drug Laboratories by "Jack B. Nimble." What law enforcement wanted to establish was that the books had come in the envelope, and if so, who ordered and received them.

But the court ruled that the evidence was not only not needed to prove the case, it might not have even been relevant. The court noted that the lab was in operation at the time of the raid; a small quantity of the drug was on the premises; there were fingerprints available for testing; and clothing and flooring might have contributed even more evidence.

The city's need to establish the book order wasn't sufficiently compelling to outweigh the harm that would have been done to readers' privacy, said the court.

Interestingly, the high court based its decision more on the Colorado Constitution's equivalent of the First Amendment than on the original federal version. The state's is stronger, it maintains.

Was it a drastic decision? Perhaps not in the context of the never-ending war on drugs. But let's cut to the next ultimate test: Will the court keep your bookseller from having to tell law enforcement that you ordered How to Blow Up an Airplane With Nothing But Your Shoe, should such a volume exist?

Probably, under similar factual circumstances -- meaning there is plenty of other evidence available to tie you to a bomb plot. It may be a cliche to say so, but that's the price we pay for a free society.

Reprinted with permission from the Rocky Mountain News [1].