VICTORY FOR READERS' PRIVACY

The issue: Can bookseller resist demands for customer records?

Our view: Yes, and it's a good thing, too

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 would not have been offset by any subsequent ruling in
favor of the customer, he wrote, such as suppression of the evidence seized.

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.