The Gerbil Killer

By Kenny Brechner
(This essay originally appeared in "Maine in Print" )

 Suppose a customer comes into your bookstore. His marked resemblance to E.R. Eddison’s manticore, "staring eyeballs, low wrinkled brow, elephant ears, some wispy mangy likeness of a lion’s mane, huge bony chaps, brown blood-stained gubber-tushes grinning betwixt bristly lips," is somewhat unsettling. His name is Dan Grimbost and he would like to order two books, How to Kill Every Gerbil in Town in One Week, and How to Kill Every Hamster in Town in Two Weeks."

Five days later the books come in and you call Dan to let him know. He comes right down and purchases them. Eight days later you hear excited chatter in the street as you rush in to open the store, something about Gerbils and tragedy. The newspaper headline confirms the wrench in your gut, "Gerbil Genocide." Four days later a federal agent stops by your store. She explains that the agency knows that you ordered How to Kill Every Gerbil in Town in One Week, and How to Kill Every Hamster in Town in Two Weeks and that you are required to disclose the name of the customer who purchased it.

You think of the dead gerbils. You think of your daughter’s pet hamster. Then, another vein of thought intrudes. The book on the care and cultivation of bonsai plants you bought and barely read, all the funky books you’ve sold as gag gifts come floating back in a rapid and disorderly procession. The charmingly stupid history of the pseudo science of physiognomy reappears to your thought in Dumas’ voice. The federal agent gives you a meaning glance. What do you do?

As many of you will be aware, section 215 of the Patriot Act amended the Foreign Intelligence Surveillance Act (FISA) providing law enforcement agencies with increased access to Library and Bookstore records. The warrant for obtaining these records may now be requested from a FISA court which meets in secret. The standard for the warrant is low, namely that the records are being "sought in connection to an investigation" of foreign agents involved in espionage or terrorism. This standard is beneath the fourth amendment probable cause standard which requires that the warrant request "specify that there are specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power." Furthermore, the provider of the material, whether bookseller or librarian, is prohibited from revealing the release of information to anyone other than staff members required to physically retrieve the information. A new, pending piece of legislation, HR:3037, would, if passed, lower the standard for obtaining reading records even further, requiring only that federal agents issue an administrative subpoena. Such a subpoena would not be subject to any prior judicial review.

Two new pieces of legislation, The Library, Bookstore, and Personal Records Privacy Act, and the Freedom to Read Act, and have been introduced, both of which seek to Modify Section 215 of the Patriot Act, restoring the fourth amendment probable cause standard for the issuance of a warrant. The Freedom to Read Act is the more far ranging of the two in that it would also prohibit the Department of Justice from using any money in its budget to search a library's or bookstore's records. Furthermore, it would remove the gag orders on booksellers and librarians. The ACLU has issued a separate legal challenge to Section 215 asserting that it violates both the First and Fourth amendments to the Constitution. The ACLU complaint may be found at http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=13248&c=206.

Independent bookstores have traditionally been fierce advocates regarding the privacy of customer records. For example Joyce Meskis, of Denver’s Tattered Cover bookstore, fought a two year court battle to deny Denver's North Metro Drug Task Force access to a customer record regarding the contents of a mailing envelope with a Tattered Cover label found in a trash receptacle located outside a methamphetamine lab. After prevailing in the Colorado Supreme Court, Meskis allowed her lawyer to reveal that the book in question was in fact Guide to Remembering Japanese Characters by Kenneth G. Henshall.

The protectiveness Independent bookstores have demonstrated towards their customer records stems from both the personal nature of the transactions in question and a sensitivity to the complexity of every aspect regarding the purchase and consumption of literature. Book titles, for example, and even content, if superficially perused, can be very misleading. Denver's North Metro Drug Task Force might have been less surprised had the contents of the Tattered Cover package turned out to be The Hashish Man, rather than Guide to Remembering Japanese Characters. Yet, The Hashish Man, an anthology of short stories by early twentieth century founder of Modern Fantasy, Lord Dunsany, has no more relevancy to drug making or use than Guide to Remembering Japanese Characters. Dunsany knew of Hashish only from having read of it in The Arabian Nights, and thought of it as some kind of magical substance which produced fantastic dreams. Indeed, I’ve had patrons return The Hashish Man after purchase noting that it "was not what I expected."

To return to our original question we should, above all, remember that reading is a complex, private, expressive act, and that precisely what is being expressed, who is doing the reading, and what interpretation is being drawn from the text, are all unclear without a good deal more context. There is no valid rationale in a democratic society for violating the confidentiality of reading decisions in a general sense. The discovery that Dan Grimbost’s brother is an animal rights activist for whom Dan’s purchases are earmarked as a cautionary birthday present, would not surprise us. Nor should we think, if Dan is in fact a Gerbil killer, that he will elude justice. Justice, as the Freedom to Read Act and the Library, Bookstore, and Personal Records Privacy Act assert, does not need to be subverted generally in order to be achieved in specific instances.

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