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FRANK KRAMER

Why the Patriot Act worries booksellers

THE ATTORNEY general thinks we've been duped. In a recent speech, he said that critics of the USA Patriot Act are being hysterical when we express fear that the FBI may be using its vastly expanded surveillance power to obtain records of what people are reading from libraries and bookstores. "The law enforcement community has no interest in your reading habits," John Ashcroft insisted.

Wrong, Mr. Attorney General.

Over the past five years, there have been a growing number of attempts by law enforcement officials to obtain this information -- the titles of the books purchased by our customers. Kenneth Starr got the ball rolling when he subpoenaed Monica Lewinsky's book purchase records from two Washington bookstores. Denver police issued a search warrant to the Tattered Cover Book Store for the titles of books purchased by a drug suspect. Cleveland authorities won the prize for the most egregious fishing expedition by demanding that Amazon.com turn over a list of everyone in northeastern Ohio who had purchased two audio CDs.

In these cases and others, booksellers have resisted subpoenas and search warrants because we believe that our customers will not feel free to purchase the books they want if they fear that the titles will one day be turned over to authorities. We have been pretty successful in convincing courts that the right to purchase books anonymously is a key element of First Amendment freedom. Several have quashed law enforcement requests for book titles on the grounds that they threaten free expression. The justices of the Colorado Supreme Court voted unanimously to invalidate the warrant issued to the Tattered Cover.

It is because we have been so busy lately protecting customer privacy that we were alarmed when we discovered that the Patriot Act contained Section 215, a provision that gives the FBI virtually unlimited power to search bookstore and library records. In a foreign intelligence investigation, the FBI can go to a judge in a secret court and request an order for the records of almost anyone. The Patriot Act does not require agents to demonstrate that they have "probable cause" to believe that the person is engaged in criminal activity. It can even demand a list of everyone who bought a particular book.

General Ashcroft has recently been trying to convince people that the FBI's new power is not really unprecedented. He has pointed out that grand juries, too, can issue subpoenas without probable cause. But grand jury subpoenas can be challenged in court. The secrecy that surrounds Patriot Act subpoenas makes court challenges virtually impossible. Booksellers and librarians do not have an opportunity to argue against the search orders before they are issued, and the orders contain a gag provision that forbids them to reveal that their records have been searched even after the fact.

Because of this secrecy, we have no way of knowing whether the FBI is abusing its power. Until recently, the Justice Department refused to reveal the number of times it had used Section 215. Finally, Ashcroft announced that it hasn't used the power at all. Frankly this does nothing to calm our concerns. The fact remains that this vast authority to search bookstore and library records secretly could be abused at any time in the future.

Section 215 is due to expire in 2005. However, despite the fact that it has never been used, the administration clearly wants to see it reauthorized. In fact, the same week that Ashcroft was ridiculing critics of Section 215, President Bush called for granting the FBI even more power to search business records, including bookstore and library records. Under the Anti-Terrorism Tools Enhancement Act, the FBI would not even have to go to court to get an order. It would have the power to issue administrative subpoenas. In addition, the bill provides that anyone who violates a gag order could be sent to jail for up to five years.

I certainly understand why Attorney General Ashcroft is not worried by the Patriot Act or the Anti-Terrorism Tools Enhancement Act. He knows that his motives are pure and scoffs at the notion that the FBI would ever violate anyone's civil rights.

The rest of us have every right to worry.

Frank Kramer is owner of the Harvard Book Store, a private, independent book store in Cambridge.

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