The Privacy Protection Act of 1980
The Privacy Protection Act of 1980 ("PPA"), codified at 42 U.S.C. § 2000aa et seq., protects journalists from being required to turn over to law enforcement any work product and documentary materials, including sources, before it is disseminated to the public. Journalists who most need the protection of the PPA are those that are working on stories that are highly controversial or about criminal acts because the information gathered may also be useful for law enforcement. For instance, a criminal suspect may talk openly to a journalist who promises not to print her name, but will not go to law enforcement for fear of arrest. While law enforcement would like to obtain this type of information from a journalist, the PPA protects the journalist's freedom to publish such information under the First Amendment without government intrusion.
History of the Act
The PPA was the Congressional response to Zurcher v. Stanford Daily, 436 U.S. 547 (1978). That case arose when police conducted a warranted search of the Stanford Daily's newsroom seeking photos of a demonstration at which officers were injured. Staff of the Daily had attended and photographed the violent demonstration and ran a story with photographs. In response to the publication, the police went to the Daily looking for unpublished photographs which investigators could then use to identify and prosecute violent demonstrators. The search turned up no new photographs of the event other than those already published.
The paper challenged the search, and a federal district court found that the search was unlawful: "[i]t should be apparent that means less drastic than a search warrant do exist for obtaining materials in possession of a third party." Therefore, in most cases, "a subpoena duces tecum is the proper -- and required -- method of obtaining material from a third party." The district court dismissed the police's argument that the First Amendment has no affect on the Fourth Amendment. The court found that the Fourth Amendment must be interpreted in light of the First Amendment and that "[t]he threat to the press's newsgathering ability . . . is much more imposing with a search warrant than with a subpoena."
The Court of Appeals affirmed per curiam the District Court's finding that the search was illegal. However, the Supreme Court of the United States held that neither the First nor Fourth Amendment prohibited this search. The Court stated:
Under existing law, valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found. Nothing on the face of the Amendment suggests that a third-party search warrant should not normally issue.
Two years after the Court ruled in Zurcher, Congress passed the federal PPA in order to overrule Zurcher and recognize the need of journalists to gather and disseminate the news without fear of government interference. The PPA, with some exceptions, forbids all levels of law enforcement from searching for and seizing journalists' work product and documentary materials.
- The Privacy Protection Act of 1980, 42 U.S.C. § 2000aa et seq. (2002).
- Zurcher v. Stanford Daily, 436 U.S. 547 (1978).
- The Stanford Daily.
Provisions of the Act
The PPA governs when the government can conduct searches of newsrooms or a reporter's home. Specifically, the PPA states that "[n]otwithstanding any other law,representatives of the government may not search a newsroom for the purpose of obtaining work product or documentary materials relating to a criminal investigation or criminal offense, if there is reason to believe that the work product belongs to someone who will publish it in a "public communication, in or affecting interstate or foreign commerce."
notes, drafts and film. Documentary material includes recorded content that may be interpreted in a finished product, such as video, audio and digital records.
There are exceptions to the PPA. With respect to either work product or documentary materials, searches are permitted when the person who has the information is suspected of committing the criminal offense or "there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being." With respect to documentary materials alone, searches are permitted when the mere notice of a "subpena [for documents] would result in the destruction, alteration, or concealment of such materials,"or when, after no response to a subpoena, the government representative has exhausted "all appellant remedies" or justice would be threatened by further delay.
Although searches by government officials on both the state and federal levels are covered under the PPA, a handful of states have reiterated or strengthened protection against these searches under state law. Those states are: California, Connecticut, Illinois, Nebraska, New Jersey, Oregon, Texas, Washington and Wisconsin.
Contact a lawyer. If presented with a search warrant, a person can attempt to delay the search until they can obtain a lawyer to explain the warrant. Regardless whether or not the search is delayed, a lawyer should be called immediately to discuss the options available, which may include emergency review by a judge, or the filing of a lawsuit or administrative proceeding.
Record the events. During the search a person whose belongings are being searched should record the search as it takes place. Although persons present cannot interfere with a search, is not required that they aid the process either.
Exercise your legal rights. The PPA permits persons served with a warrant under this Act "to submit an affidavit setting forth the basis for any contention that the materials sought are not subject to seizure." It also permits a person who has been harmed by violation of the Act to sue the government or government employee who caused the harm.
Use encryption.Properly used, encryption can provide a strong shield for infromation.
- Search warrant went too far; Laws to protect press ignored by legal system, Palo Alto Daily News, July 26, 2002.
- Elaine Hargrove-Simon, Newspapers Under Siege: Bay Area Newspapers Searched, Silha Bulletin 7:4, 2002.
- Reporter's Committee for the Freedom of the Press, The USA PATRIOT Act and Beyond, Homefront Confidential (2003).
- Reporter's Committee for the Freedom of the Press, Newsroom Searches, First Amendment Handbook (1999).
- Robert F. Aldrich, Privacy Protection Law in the United States, U.S. Dept. of Commerce, Nat'l Telecomm. and Info. Admin., Washington, D.C. (1982).
- Beth Ann Reid, A Manual for Complying with the Freedom of Information Act and the Privacy Protection Act, Dept. of Mgmt. Analysis and Sys. Dev., Richmond, Va (1980).
- 28 C.F.R. §§ 59.1-59.6 (1995) (U.S. Attorney General guidelines to federal agents on how to obtain search warrants regarding documentary materials held by disinterested third parties).
- Zurcher v. Stanford Daily , 436 U.S. 547 (1978) (finding no constitutional violation to Fourth Amendment search of a newspaper's press room before existence of PPA).
- Citicasters v. McCaskill, 89 F.3d 1350 (8th Cir. 1996) (stating that "the Privacy Protection Act does not require an application for a search warrant to describe any exceptions to the Act, the district court erred in imposing such requirements on the defendants in this case").
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Communications Law and Policy
Jerry Kang and Alan Butler