Newsroom Searches -
Crumbling Barriers to Newsroom Searches:
The Erosion of the Privacy Protection Act of 1980
by
Dan Shaver
The University of North Carolina - Chapel Hill
Submitted to the Law Division/Research
For consideration for the AEJMC Convention, August 4-7, 1999
Contact: Dan Shaver
Doctoral Student
The University of North Carolina - Chapel Hill
4 Davie Lane
Chapel Hill, NC 27514
(H) 919-969-8782
(O) 919-962-6421
(Fax) 919-962-0620
(E-Mail) [log in to unmask]
Abstract
Crumbling Barriers to Newsroom Searches:
The Erosion of the Privacy Protection Act of 1980
The Privacy Protection Act of 1980 was enacted to create barriers to the
issuance of warrants for newsroom searches in the aftermath of the U.S. Supreme
Court's Zurcher vs. Stanford Daily decision. This study finds that although
newsroom searches are not widespread, adverse court rulings, limited sanctions
for violations, law enforcement -- and sometimes press -- ignorance of the law,
and Congressional tampering have significantly weakened the intended protections
of the Act.
Newsroom Searches -
RENO, Nev. (AP) -- Sheriff's deputies armed with search warrants raided Reno's
three television stations and its newspaper on Wednesday for copies of an
interview with a man accused of opening fire on Interstate 80.
"I'm not declaring war on the media," said District Attorney Richard Gammick,
who requested the warrants.
"We know what the press privileges are and we're not trying to violate those at
all. It's my belief that once a newsperson goes up and interviews a defendant
in the jail about the crime, they become a witness."
January 6, 1999 Associated Press Dispatch
For most of the first two centuries of America's history, newsrooms enjoyed
significant protection from search and seizure under a line of legal decisions
recognizing the special status of private papers traceable to 18th Century
Britain.[1] In the late 1960s, however, the U.S. Supreme Court began to
repudiate these traditional protections. This reversal of approach culminated
in the 1978 Zurcher v. Stanford Daily[2] decision in which the Court ruled that
neither third parties, by virtue of not being suspects in a crime, nor
newspapers, by virtue of the First Amendment, had any special protection from
search and seizure if law enforcement agents had probable cause to believe that
evidence relating to a crime existed on their premises.
Congress reacted to Zurcher by passing the Privacy Protection Act of 1980,[3]
which became effective January 1, 1981. The Act severely restricted the grounds
on which search warrants could be issued for newsrooms.
Although Zurcher and the passage of the Act generated some scholarly and legal
attention in the early 1980s, there has been very little attention to this topic
in
the scholarly literature since the first half of the 1980s[4] and virtually no
inquiry into whether the Act achieved its purpose.
The issue of newsroom searches is an important one for American journalists.
The search process itself is extremely disruptive to the newsgathering and
publishing functions. Additionally, many journalists fear that the threat of
searches may intimidate confidential sources. Although law enforcement
officials may arrive with a warrant related to one issue or set of materials,
the process of fulfilling that warrant may allow them access to other,
unrelated, confidential and sensitive material. There is also a concern that
unrestrained searches could become an effective tool for government harassment
of the media, allowing law enforcement or government officials to respond to
media criticism by launching retaliatory searches, or create an environment in
which newsroom employees engage in self-censorship.
The purpose of this paper is to determine whether the effort by the legislative
and executive branches to prohibit police searches of newsrooms, except under
unusual circumstances, has been effective. It will review the background and
issues leading to passage of the Privacy Protection Act of 1980 and examine
federal court decisions since its enactment to assess the level of protection it
provides.
Background and Literature Review
Twentieth century protections against newsroom searches trace their roots to
the early English case of Entick v. Carrington.[5] In Entick, the victim of a
search filed trespass charges against the officers who seized his personal
papers, and the British court struck down the use of broad warrants to search
the homes of those suspected of seditious libel for books, papers, and other
evidence. Reacting primarily to this British abuse of warrants, America's
Founding Fathers created the Fourth Amendment[6] to prevent similar problems.[7]
In 1886, the U.S. Supreme Court was faced with a case involving a merchant
suspected of import violations being ordered to produce relevant books and
papers under penalty of federal law.[8] The Court ruled that a search for
private papers was barred under both the Fourth Amendment ban on unreasonable
search and seizure and the Fifth Amendment prohibition against
self-incrimination,[9] establishing what became known as the "private papers
doctrine."[10] Justices Brandeis and Frankfurter later praised Boyd v. United
States as "a case that will be remembered as long as civil liberty lives in the
United States."[11]
With Boyd as precedent, the Court expanded the private papers doctrine in Gouled
v. United States[12] by distinguishing between "mere evidence" and "real
evidence" of a crime. Mere evidence included materials and documents of only
circumstantial value. Third party search and seizure of such materials was
deemed "unreasonable." "Real evidence" was defined as "contraband and fruits of
the malfeasance," which was subject to search and seizure anywhere.[13]
The combination of the private papers doctrine, the mere evidence rule, and the
exclusionary rule -- which allowed courts to refuse admission of inappropriately
gathered evidence -- dominated the law and prevented newsroom searches until the
1960s.[14] By the late 1960s, however, the balance of sentiment on the Court
was beginning to shift from the protection of privacy to the effective
prosecution of criminals.[15] In Warden v. Hayden[16] the Court ruled that
purely evidentiary materials may be seized under the proper circumstances and
reserved the question of whether there are some materials of evidentiary value
whose nature precludes search and seizure,[17] thus weakening the mere evidence
rule.[18]
Two 1976 cases involving searches of attorneys' offices fatally undercut the
private papers doctrine.[19] In Fisher v. United States,[20] the Court ruled
that the private papers doctrine, if it restricts law enforcement officials at
all, limits only their ability to seize evidence directly from the accused.
They described the private papers doctrine as
"a rule searching for a rationale."[21] In Andresen v. Maryland,[22] the Court
ruled that a search for evidence in the offices of an attorney accused of fraud
did not constitute self-incrimination under the Fifth Amendment since the search
-- not the attorney's actions -- produced the evidence.[23] It described the
previous broad rule against forced production of incriminating documents as
being based on "discredited" precedents.[24]
Thus, by 1978, when it decided Zurcher, the Court's position on the seizure of
papers had largely rejected traditional guidelines. Some legal scholars argue
this reflects a basic ambivalence by the Court about the relationship between
the Fourth Amendment prohibition of "unreasonable" searches and the guidelines
for issuing search warrants.[25] They believe there are two distinct lines of
U.S. Supreme Court cases regarding search and seizure. In the first, decisions
treat the Fourth Amendment as allowing searches -- even without a warrant -- if
the search itself is not "unreasonable." In such cases, the Court tends to view
the existence of a properly issued warrant as strong evidence of the search's
reasonableness.[26] Under this view, neither documents nor other objects enjoy
any special protection from seizure.[27] The second line of cases, they
assert, treat the warrant and search and seizure clauses as establishing
distinct constitutional rights barring searches --even with warrants -- if the
search is otherwise deemed "unreasonable."[28]
It was into an environment characterized by the ascendance of the former line
in which traditional protections were being eroded that the Zurcher controversy
was destined to arrive. On April 9, 1971, nine police officers were injured as
they sought to remove demonstrators who had seized the administrative offices of
the Stanford University Hospital. The officers were able to identify only two
of their assailants but did report seeing someone taking pictures of the
melee.[29]
On April 11, the Stanford Daily, a student newspaper, published a special
edition with pictures of the attack on the officers. On April 12, the Santa
Clara County District Attorney's Office secured a warrant from the municipal
court to search the student paper offices "for negatives, film, and pictures
showing the events and occurrences at the hospital on the evening of April
9."[30] There were no allegations that any member of the Stanford Daily staff
was in any way suspected of involvement in the illegal events at the
demonstration, simply a statement of probable and reasonable cause to believe
the photographs were in the newspaper offices.
Four officers searched the Stanford Daily offices on the afternoon of April 11,
in the presence of several staffers. Locked drawers and rooms were not searched
although the officers apparently had an opportunity to read notes and
correspondence during the search. No pictures in addition to those already
published were found, and the officers left without removing anything.[31]
A month later, the Stanford Daily and some staff members filed suit in U. S.
District Court for the Northern District of California against the police
officers who conducted the search, the chief of police, the district attorney,
an assistant district attorney, and the judge who issued the warrant.[32] The
suit sought declarative and injunctive relief and alleged the search had
"deprived respondents under color of state law of rights secured to them by the
First, Fourth, and Fourteenth Amendments."[33] The plaintiffs requested a
permanent injunction barring the issuance of warrants for materials developed in
the process of gathering news.
The district court denied the request for an injunction but granted a motion
for summary judgment. The court ruled that the Fourth and Fourteenth
Amendments prohibit search warrants for third parties not suspected of
involvement in a crime unless there is probable cause to believe they will
ignore a subpoena or destroy the documents. The court further found that when
the search involves a newspaper, First Amendment considerations limit the
circumstances in which a warrant is allowable to those in which there is a clear
showing that important materials will be destroyed or removed, and that a
restraining order would be ineffective.[34]
The Ninth Circuit affirmed the district court findings,[35] and the defendants
appealed to the U.S. Supreme Court. The case was heard in 1978. Justice White
wrote the 5-3 majority opinion reversing the lower courts' rulings while
Justices Stewart, Marshall, and Stevens delivered separate dissenting opinions.
Justice Brennan did not participate.[36] After considering the reasoning
underlying the lower court opinions, White and the majority determined:
y That the state interest in uncovering evidence related to a crime is the same
whether the property to be searched belongs to a suspect or a non-suspect.
Therefore, innocent third parties should have no greater protection from
searches than should the guilty in matters involving recovery of evidence.[37]
y That the interests of law enforcement outweigh the individual's privacy
interests in such matters.[38]
y That newspaper offices do not merit higher standards for issuance of search
warrants. The majority found that sufficient media protections are created by
requiring the courts to "apply the warrant requirements with particular
exactitude" in First Amendment cases.[39]
y That searching a newspaper office for evidence such as news photographs taken
in a public place does not constitute a realistic threat of prior restraint and
that any such threat can be avoided by magistrates taking appropriate care in
the issuance of warrants.[40]
y That "the Fourth Amendment does not prevent or advise against legislative or
executive efforts to establish nonconstitutional protections against possible
abuses of the search warrant procedure, but we decline to reinterpret the
Amendment to impose a general constitutional barrier against warrants to search
newspaper premises, to require resort to subpoenas as a general rule, or to
demand prior notice and hearing in connection with the issuance of search
warrants."[41]
Justices Stewart and Marshall concurred that the Fourth Amendment did not bar
searches of innocent third parties but dissented on the issue of newsroom
searches. They argued that such searches were physically disruptive and created
the possibility of compromising confidential sources. Justice Stevens dissented
on both points.
The ruling drew prompt criticism from the media. It was described as "a first
step toward a police state," a threat to the "privacy rights of the
law-abiding," and a ruling that "stands on its head the history of both the
First and the Fourth Amendments."[42]
The political establishment responded. Congress held hearings and 19 bills
concerning newsroom searches were introduced in the ninety-fifth Congress.
President Carter vowed to propose legislation "to correct the threat of
encroachment on freedom of the press that was raised in the Stanford Daily
case."[43]
Attorney General Griffin Bell appointed a committee, led by Assistant Attorney
General Philip Heymann, to investigate the issue and draft legislation.[44] In
a 1979 panel discussion, Heymann identified several factors that influenced his
committee's final recommendations: [45]
y Newsroom searches were relatively recent and relatively rare. According to
Heymann, "We saw that a search for mere evidence, like the photographs of the
Stanford Daily, would not have been permissible at all before the late 1960s.
So what we were talking about was obviously a type of search that the federal,
state, and local governments had been able to do without during the first 170
years of the Bill of Rights." Heymann also said there had never been a press
search by the federal government or by 47 of the states.
y Heymann's committee observed that searches were inherently more dangerous to
the press than subpoenas because searches required the searchers to review
unrelated materials and documents "which they have no business reading."
y The committee recognized the complexities and difficulties inherent in
dealing with situations in which individuals are in danger or stolen government
documents are involved.
y The committee also struggled with the problem of defining the press.
The committee finally drafted, and President Carter submitted to Congress in
April 1979, a subpoena-first bill establishing curbs on the rights of federal,
state, and local law enforcement officers to obtain search warrants for
individuals involved in First Amendment activities.
In the Congress, there was a strong desire to reverse the effects of the
Supreme Court ruling.[46] Robert Kastenmeier, a Wisconsin Democrat who managed
the bill in the House, introduced it by saying:
Mr. Speaker, sometimes a longstanding principle of constitutional jurisprudence
is thrown into doubt by a decision of the Supreme Court which -- while it may
answer a narrow question based on specific facts -- leaves Government officials
and members of the public in doubt as to how to interpret the law. When this
occurs it is often best for Congress to step in to fill the void, rather than to
await the results of many years of potential litigation which will again
redefine the principle. This is the case with respect to the matter before us
today -- legislation to redefine a portion of the law of search and seizure in
response to the Supreme Court's decision in Zurcher against Stanford Daily in
1978.[47]
During congressional hearings on the bill, virtually all those testifying in
favor expressed the belief the bill's protections should be extended to all
innocent third parties. The Justice Department, however, opposed this
expansion, arguing it would damage law enforcement efforts. Ultimately, the
Senate Judiciary Committee reported out a bill designed to protect materials
"possessed by a person in connection with a purpose to disseminate to the public
a newspaper, book, broadcast, or other similar form of public
communication."[48] The bill was approved by Congress on October 13, 1980, and
signed by President Carter the following day.
The Privacy Protection Act of 1980 distinguishes between two types of materials
-- "work products" and "other documents" -- and provides a different level of
protection from search and seizure for each.[49] "Work products" include
interviews, story drafts and internal memos developed for publication in
newspapers or books, to be broadcast, or to be disseminated by other forms of
public communication. Such materials may be seized with a warrant only if law
enforcement officials have probable cause to believe the person holding the
materials has committed a crime to which the materials relate, has possession of
materials relating to "national defense, classified information, or restricted
data," or if there is reason to believe seizure of the materials may prevent
serious injury or death to a human being.
"Other documents" consist of written and printed items, photographs, film and
video or audiotapes collected in the process of preparing work products. As
with work products, search and seizure with a warrant is prohibited with limited
exceptions. The same criminal activity, national defense, and danger to a human
being exceptions that apply to work products apply to other documents.
Additionally, however, exceptions are allowed for issuing warrants if:
(1) there is reason to believe the materials may be destroyed in response to a
subpoena or (2) if the materials have not been produced in response to a
subpoena, all appellate remedies have been exhausted and continued delay in
obtaining the materials may "threaten the interests of justice." In these
cases, however, the law requires that the person having the "other documents" be
permitted an opportunity to challenge in court whether the materials should be
subject to seizure.[50]
At the time of the Act's passage, some observers noted that the exceptions for
searches for classified or national security information could have been used to
justify a search of The New York Times to seize the Pentagon Papers while others
argued that such authority already existed and The Privacy Protection Act merely
preserved the status quo.[51] Some authors questioned whether congressional
failure to define terms like "probable cause" and "when further delay would
threaten the interests of justice" would leave too much to the discretion of
magistrates and open the door to potential abuse of the exceptions permitted
under the act.[52] There was also concern that the loss of the exclusionary
rule would encourage newsroom raids.[53] Before the 1960s, evidence obtained in
an illegal search was suppressed. However, Section 106(3) of the Privacy
Protection Act expressly states that "evidence otherwise admissible in a
proceeding shall not be excluded on the basis of a violation of this Act."
With Zurcher and the cases leading up to it, the Supreme Court rejected legal
reasoning that had limited search and seizure of private papers for nearly 300
years. Congress, in response, passed the Privacy Protection Act of 1980 to
restrict the use of search warrants in situations involving public communicators
to very narrow circumstances and to encourage the use of subpoenas. In the
early 1980s, some commentators expressed concern that some provisions in the law
provided opportunities to circumvent Congress' apparent intent but recognized
that only the passage of time would show whether such concerns were realistic.
Research Questions, Method and Limitations:
After almost two decades of experience with the Privacy Protection Act of 1980,
it is now possible to draw some conclusions about its effectiveness. The
following research questions will be addressed:
y Do newsroom searches appear to be a significant problem for journalists?
y Does federal case law developed under the Act support the early concerns
about vagueness?
y Have federal court decisions tended to strengthen or weaken the law as a
barrier to newsroom searches?
y Does the act, as interpreted in case law, provide penalties and remedies
sufficient to discourage newsroom searches by law enforcement officials in
violation of the Act?
The analysis will involve reviewing federal court cases involving newsroom
searches since 1980. Although state statutes exist in this area, the Privacy
Protection Act of 1980 specifically preempts any statutes providing lesser
levels of protection,[54] so a focus on federal decisions is most appropriate.
Additionally, section 106(a)(1) of the bill specifically requires that any suits
arising out of the Privacy Protection Act be heard first in a United States
district court -- even if state or local government is the defendant.
Lexis searches keyed to "The Privacy Protection Act of 1980" and to "search
warrants and newsroom" were used to identify relevant cases. Lexis-Nexis
searches of wire service stories, major newspapers, trade journals, and
magazines were also used to identify newsroom searches that had either been
unreported in case reporters or did not result in litigation.
Limitations of the study include the difficulties of obtaining information about
requests for search warrants that may have been denied because of the Act and
cases which did not result in litigation.
Magnitude of the Search Issue
Newsroom searches do not appear to be a frequent occurrence. Lexus-Nexis
searches for wire service, magazine and newspaper stories dealing with newsroom
search warrants and a search of the Reporters Committee For Freedom of the Press
web site of News Media Update reports for the periods 9/14/93 through 5/4/98 --
the period covered by their online database -- revealed fewer than a half-dozen
cases.[55] Typically, these cases appear to be settled without litigation.
A representative example was the October 1990 search of the Macomb (Mich.) Daily
newsroom for a reporter's interview notes with a witness to a shooting.[56]
After one judge declined to issue a warrant, a second judge granted the police
request after being told that the newspaper "wanted a warrant so it could
cooperate." The county prosecutor, when notified, intervened and ordered the
return of the uncopied notes.
In a similar case involving KOMU-TV in Columbia, Mo.,[57] police obtained a
search warrant for tapes of a telephone interview with a confessed murderer in
February 1994. They then returned with a second warrant in search of videotapes
of the defendant's arraignment. The district attorney, who said he was unaware
of the Privacy Protection Act of 1980, quashed the searches after being informed
of their illegality. The TV station, which is affiliated with the University of
Missouri, declined to pursue legal action.
In an August 1994 search of the hotel room of a CBS producer, Spokane, Wash.,
police sought film of violence involving a gypsy family. After talking with CBS
attorneys, the police agreed to copy the film and return the original film to
the crew. The mayor, city manager, and Spokane City Council subsequently
apologized to CBS for the search. No legal action resulted.[58]
One key problem reflected in many of these searches, according to Sandra
Davidson Scott, who teaches communication law at the University of Missouri
School of Journalism, is that prosecutors and law enforcement officials -- and
even journalists and media lawyers -- are often unaware of the provisions of
the Privacy Protection Act.[59] Indeed, in the case resulting in the largest
damages award since enactment of the Act, Steve Jackson Games v. U.S. Secret
Service,[60] the trial judge specifically observed that the agent responsible
for the search appeared unaware of the existence of The Privacy Protection Act
and its application to enterprises engaged in publishing information to the
public.[61] Ignorance of the law appears to have been a factor also in the Reno
incident involving three television stations and a newspaper cited at the
beginning of this paper. In the words of KOLO-TV News Director Ed Pearce:
"We've since had a y'all come meeting with the DA and he considers the matter
closed. He admits he was unaware of some of the provisions of the law and says
he never intends to do it [seek newsroom search warrants] again."
The Development of Federal Case Law
A Lexis search of federal cases resulted in the identification of several
hundred cases involving the Privacy Protection Act of 1980. Closer scrutiny,
however, reveals that the vast majority of cases were inappropriate for this
analysis. They range from non-media cases involving requests for attorneys'
fees to a case involving a 72-year old child pornographer who alleged the
seizure of photographs of unclad children was illegal because the material was
intended for publication.[62] The vast majority of the cases involve allocation
of attorneys' fees issues. There are no Supreme Court cases involving the Act,
but there are three cases, two at the U.S. District Court level and one at the
U.S. Court of Appeals level, that are significant. These will be further
examined below.
In considering whether federal case law is effective in discouraging newsroom
searches, two factors are important to consider -- the ease with which law
enforcement officials can obtain search warrants and the effectiveness of the
courts in providing remedies for violations of the Act.
Requirements for Obtaining Warrants
Writing shortly after adoption of the Act, several authors[63] questioned
whether Congress' use of vague language in describing exceptions to the Act and
a lack of definition for "probable cause" would tend to undermine the
effectiveness of the Act. The probable cause issue does not appear to have
figured prominently in the major Privacy Protection Act cases. In the
Minneapolis Star case, the search and seizure was conducted without a warrant.
In Steve Jackson Games, the court specifically found that the grounds for the
warrant were sufficient:
Foley's [a federal agent] affidavit, executed on February 28, 1990, was
sufficient under the law for the issuance of a search warrant by the United
States Magistrate Judge. The Court does not find from a preponderance of the
evidence that the admitted errors in Foley's affidavit were intentional and so
material to make the affidavit and issuance of the warrant legally improper. . .
. The affidavit and warrant preparation was simply sloppy and not carefully
done.
In this case, Steve Jackson Games, the publisher of books, magazines and
role-playing games, offered e-mail services to users of its electronic bulletin
board. When the U.S. Secret Service discovered that proprietary information
regarding the workings of a major telephone company's system was posted on the
bulletin board, they obtained a warrant and seized the computer operating the
bulletin board under statutes related to illegal computer access and interstate
transportation of stolen property.
The seized computer, however, contained magazine articles and the draft of a
book which were scheduled for publication. Although the warrant was found
legal, the seizure of the book and articles was found to be illegal under the
Privacy Protection Act and the government was ordered to pay damages related to
lost revenues arising from delayed publication of the materials.
In Citicasters v. McCaskill, the validity of the warrant was a central issue.
The question, however, was not one of probable cause but rather whether law
enforcement agents are required to state the grounds that they believe justify a
warrant as an exception to the Act before a proper warrant can be granted.
On August 5, 1994, a tourist visiting Kansas City, Mo., videotaped the
abduction of a woman from a downtown street. The victim was dragged into a
nearby building and murdered before police officers arrived at the scene. The
tourist also videotaped the arrival of law enforcement officers and a subsequent
exchange of shots between the assailant and police. Although the assailant
briefly eluded police, he was captured about 20 minutes later. The tourist
offered his videotape to WDAF-TV, which copied the video, returned the original
to the owner and broadcast about 15 seconds of the 14 minute tape on its evening
news program. Shortly after the broadcast, police representatives contacted the
television station and expressed interest in the video. Station management told
the police that the tourist had left town with the original tape and that police
officials could review the station's copy but would have to have a subpoena to
obtain a copy. Acting on the belief that the tape was important to securing an
indictment against the assailant and concerned that Missouri's speedy trial laws
would force them to release the suspect, law enforcement officers obtained a
search warrant. The station relinquished the tape and, days later, filed suit
in U.S. District Court, alleging violations of the Privacy Protection Act of
1980.[64]
The district court ruled that the tapes constituted documentary materials under
the Act and were "possessed by a person in connection with a purpose to
disseminate to the public a newspaper, book, broadcast, or other similar form of
public communication," establishing applicability of the Act.[65] The
defendants argued that a search warrant was appropriate because under state law,
subpoenas could only be obtained after charges had been filed against the
suspect. The court rejected that argument, noting that the Act specifically
gave states one year to bring state law in compliance with the Act and that
Missouri's failure to do so could not be used as a basis to "circumvent the
Act."[66] Finally, the defendants argued that the warrant was justified under
two exceptions to the Act: when there is reason to believe it is "necessary to
prevent the death of, or serious bodily injury to, a human being,"[67] and when
"there is reason to believe that the giving of notice pursuant to a subpoena
duces tecum would result in the destruction, alteration, or concealment of such
materials."[68] The defendants argued that the potential release of the suspect
would result in danger to witnesses or the public at large. They also said it
was reasonable to believe that because of the nature of the plaintiff's
business, unused portions of the tape might be edited or discarded during the
time it would take to obtain a subpoena from the grand jury. The court, noting
that no questions regarding public safety or the preservation of the tape were
made in the application for the search warrant observed:
Thus, the question for the court is to consider whether the defendant may claim
an exception to the Act when the application for the search warrant is devoid of
reasons supporting the exception. The court finds that to allow a defendant to
claim an exception, after a search and seizure has occurred, allows a defendant
to justify its conduct in hindsight. The legislative history of the Act
envisioned that a defendant would state the basis for exceptions when applying
for the warrant. Moreover, if circumstances exist which constitute an
exception, the defendant should state these reasons in an affidavit for a
warrant. Thus, because the affidavit in support of the search warrant did not
set forth reasons which fall under an exception to the Act, the court will not
allow defendants to invoke those exceptions.[69]
After finding that members of the Board of Police Commissioners were state
officials thus protected as a whole by sovereign immunity and that Jackson
County Prosecutor McCaskill was not, the court awarded the plaintiffs $1,000 in
liquidated damages for McCaskill's violation of the Privacy Protection Act and
ordered the return of the original videotape.[70]
The defendants appealed to the Eighth Circuit Court of Appeals. The appeals
court noted that the Act does not specifically provide a requirement that search
warrant requests must describe the exception being used and questioned whether
the legislative history provided a basis for the lower court decision.[71] It
further observed that it is the duty of the courts to rely on the unambiguous,
plain language of Congress, not to engage in unnecessary interpretation. With
those guidelines, the court ruled:
We find no ambiguity in the Privacy Protection Act. . . .The Act presents a
straightforward statutory scheme for protecting those engaged in information
dissemination from government intrusion by prohibiting searches and seizures of
documentary materials except where government officials have a reasonable belief
that a statutory exception applies. Although Congress could have chosen to
include elaborate procedural requirements in the Act, it instead created a
private cause of action as the exclusive remedy to ensure that the protections
of the Act would be effective, and allowed recovery of damages against those
found liable for violations of the Act. . . . Where Congress has provided a
specific means for achieving its purpose, we must honor its decision, and not
embellish its legislative scheme with additional procedural innovations. . . .
The district court's expansive interpretation of the Act simply disregards the
balance struck by Congress between preserving the ability of government
officials to prosecute crime and protecting those engaged in the dissemination
of information from government intrusion.[72]
The appeals court then ruled that the Privacy Protection Act does not require a
search warrant application to describe the exceptions to the Act under which the
request is being made and said the lower court erred in failing to allow the
defendants an opportunity to prove the exception existed after the fact. The
lower court ruling was reversed, and the case was remanded for a factual
determination of whether McCaskill actually participated in the search and
seizure and whether, if she did, she "possessed a reasonable belief that an
exception to the Privacy Protection Act existed."[73]
Judge Bright, concurring in part and dissenting in part, noted:
By construing the Act so as not to require a prior judicial determination, the
majority pulls the teeth out of the statute. The purpose of the Privacy
Protection Act is to prevent the search and seizure of documentary materials
from persons disseminating information. After-the-fact review can only punish
violation, not prevent it. Furthermore, permitting an after-the-fact showing of
what was "known" to the affiant but not communicated to the magistrate judge
contains too great a potential for abuse; there could often be no assurance that
the critical facts and details were in fact known prior to the issuance of the
warrant.[74]
In August 1996, the Eighth Circuit denied a Petition for Rehearing.
Remedies for Violations
The Act provides remedies for violations through civil actions.[75] It
specifically grants jurisdiction to federal district courts without the usual
$10,000 requirement and allows liquidated damages of not less than $1,000.[76]
Shortly after the Act's passage, one author observed that the difficulty of
establishing significant actual damages and the cost of litigation would
discourage plaintiffs from suing.[77] This concern appears to have some merit.
As noted above, most of the reported cases of newsroom searches appear to end
without the filing of civil litigation.
Even when civil suits result, damages have been minimal. In Minneapolis Star
and Tribune Co. v. United States,[78] staffers for The Minneapolis Star and
Tribune and WCCO were photographing a narcotics arrest when a special agent of
the FBI demanded their film and videotape on the grounds that undercover agents
were present at the scene. Despite the photographers' offer to edit the film,
the agent confiscated the materials. Several hours later, when the U. S.
Attorney's office became aware of the confiscation, the film and videotapes were
returned to the plaintiffs. WCCO broadcast its videotape that night, and The
Star and Tribune decided not to publish its photographs. Both sued and the
court ruled damages were de minimis, awarding each plaintiff $750.
In Citicasters v. McCaskill,[79] which was subsequently overturned on appeal,
the U.S. District Court awarded the station $1,000 for a search involving
seizure of a videotape of a murder victim being abducted from a public street by
her assailant. In Steve Jackson Games v. U.S. Secret Service,[80] the U.S.
District Court found that the Secret Service violated the Privacy Protection Act
and awarded actual damages of $51,040. In that case, seizure of computer
equipment containing manuscripts intended for publication resulted in expenses
of nearly $9,000 for rental of replacement equipment and reconstruction of
manuscripts and lost profits of approximately $42,000.
Fixing liability also presents difficulties. Although the Act provides that a
plaintiff may directly sue the individual non-federal officer(s) involved in an
illegal search,[81] it also provides that "it shall be a complete defense _ that
the officer or employee had a reasonable good faith belief in the lawfulness of
his conduct."[82] In Citicasters, the U.S. Court of Appeals for the 8th Circuit
remanded the issue of McCaskill's participation in the search and seizure for
retrial and instructed the lower court to determine whether she "possessed a
reasonable belief that an exception to the Privacy Protection Act existed" at
the time of the search.[83] The Act bars independent personal claims against
federal officials,[84] instructing the Attorney General to settle claims brought
against the federal government under the Act and to create administrative
procedures for disciplining offending officers. Although the Act also permits
suit against the United States government or state and local governmental units
responsible for the actions of law enforcement officers,[85] action against
state or local government is severely limited by the requirement that the state
must have waived its Eleventh Amendment rights of sovereign immunity. In Barnes
v. Missouri,[86] the Eighth Circuit held:
The Privacy Protection Act, which Barnes alleges has been violated, provides a
cause of action against a state only if the state "has waived its sovereign
immunity under the Constitution to a claim of damages resulting from a violation
of this chapter." The language of this provision makes plain that Congress chose
not to abrogate Eleventh Amendment immunity for causes of action under this
statute.[87]
Few states have waived official liability in other contexts and are unlikely to
do so for purposes of this Act.[88] Claims against officers of local
governmental units, however, may not be barred by the rules of sovereign
immunity.[89]
Given the difficulties of proving actual damages, the attorneys' fees awards
have provided the more substantial penalties for government agents found in
violation of the Act. The Act provides for attorney's fees and litigation costs
as follows:
A person having a cause of action under this section shall be entitled to
recover _ such reasonable attorney's fees and other litigation costs reasonably
incurred as the court, in its discretion, may award.[90]
In Steve Jackson Games, the appeals court noted the district court award to the
plaintiff of $195,9000 in attorneys' fees and $57,000 in costs without further
comment.[91] Since the appeal involved the question of whether seizure of the
computer equipment with unread e-mail messages on the hard drive constituted
"interception" under the Federal Wiretap Act, the district court's findings on
issues related to the Privacy Protection Act violations were unquestioned. In
Minneapolis Star & Tribune v. United States,[92] however, the plaintiffs (who
had been awarded $3,000 in damages, collectively) requested $208,733 in
attorney's fees and litigation costs. The U.S. District Court concluded that a
portion of the expenses requested related to initial claims that were
subsequently disallowed. Following the Supreme Court ruling in Hensley v.
Eckerhart,[93] which cautioned that "the prevailing party should make a good
faith effort to exclude from a fee request hours that are excessive, redundant,
or otherwise unnecessary," the district court ruled that the amount claimed was
excessive and granted $80,200 in fees.[94] The court concluded the ruling with
an admonition to the plaintiffs regarding excessive legal expense:
The court is not unmindful of the fact that two of the plaintiffs are in the
business of gathering and disseminating news and are publishers whose conduct is
entitled to First Amendment protection. But the action was pursued not on the
basis of the First Amendment but of the Privacy Protection Act and even on the
narrowest of issues of that statutory scheme. It appears to the court that
these plaintiffs, in presenting the application in the form here as presented,
have failed to recognize the interests of society in general in the cost of
litigation and the hazard of overzealously asserting claims that do not warrant
such intensive effort. In private litigation, both counsel and client must
equate the reasonableness of the endeavor both to the client and to the law firm
in terms of principle but also in terms of the economics of litigation. No
less, indeed a greater, standard of economic rationality must apply in those
cases in which claimants will seek ultimate recovery for fees and disbursements
from the public treasury.
Discussion and Conclusions:
Although newsroom searches appear to be relatively infrequent and, more often
than not, the result of ignorance of the law, the Privacy Protection Act of 1980
does not appear to be as high a hurdle to law enforcement intrusion as was
perhaps originally expected. Anecdotal evidence appears to support the notion
that understanding of the Act by law enforcement and by media may be relatively
low, suggesting that factors other than the Act may be responsible for the
relative scarcity of searches.
Absent hard-to-prove actual damages, liquidated damage awards are low and the
courts, in at least some jurisdictions, are inclined to take a restrictive view
of what fees are appropriate for recompense under the Act. State laws regarding
sovereign immunity further complicate the issue of identifying a vulnerable
defendant in many cases. The result is that a news organization can prevail but
still face large out-of-pocket expenses. This is hardly an encouragement to
pursue litigation except in cases like Steve Jackson Games where provable losses
are substantial.
Of more concern is the Eighth Circuit Court of Appeals ruling in Citicasters.
Allowing law enforcement representatives to obtain search warrants based on a
"reasonable belief" that an exception to the Act exists without requiring
specification of that exception until after the search is completed appears to
open a wide arena for potential abuse. Traditionally, it is assumed that the
impartial scrutiny of the magistrate provides a check on potential Fourth
Amendment abuses by law enforcement. It is hard to imagine how this can work
effectively under the Eighth Circuit ruling.
These trends -- limited liability and damages and judicial support for a broad
interpretation of the circumstances under which a warrant is considered
appropriate -- clearly lower the bar and the stakes for law enforcement agents
intent on prosecuting a newsroom search.
Further potential for erosion of newsroom protections is found in The Congress.
In September 1996, amendments to the Privacy Protection Act were signed into
law. The amendments, initially proposed by Senator Orrin Hatch, broaden the
exceptions under which warrants may be issued to include "offense[s] involving
the production, possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography, the sexual exploitation of children, or the
sale or purchase of children. . ." Although one can hardly quarrel with the
government's zeal to prosecute child pornographers, the amendment demonstrates
the susceptibility of the Act to the Congressional passion of the moment. If
child pornography merits an exception, why not information about drug
trafficking or the operation of political or religious cults?
Recommendations
Several steps can be taken within the framework of existing law to strengthen
the barriers to newsroom searches. The Privacy Protection Act of 1980 should be
amended to require that law enforcement agents seeking warrants under existing
exceptions to the act be required to identify and justify the exception being
cited before the warrant is issued. This step would clearly establish
legislative intent and render the Eighth Circuit findings in Citicasters moot.
Penalties and liability for violations of the act should be raised to a level
that truly represents a deterrent. The ban on personal claims against federal
agents should be eliminated to encourage individual responsibility. The minimum
award of $1,000 should be increased to $10,000.
Finally, the media, acting through groups like NAA and state press
associations, should take an active interest in strengthening the Act by
discouraging the expansion of exceptions at the national level and by lobbying
for the elimination of sovereign immunity protection for state officials at the
local level.
[1] Eric Schnapper, Unreasonable Searches and Seizures of Papers, 71 Va. L.
Rev. 869,870 (1985).
[2] Zurcher v. Stanford Daily, 436 U.S. 547, reh. denied, 439 U.S. 885 (1978)
[3] The Privacy Protection Act of 1980, 42 U.S.C. 2000aa (1980)
[4] For articles since the mid-1980s, see Silas J. Wasserstrom and Louis
Michael Seidman, The Fourth Amendment as Constitutional Theory, 77 Geo. L. J. 19
(1988); Gregory L. Brown (Steve Jackson Games, Inc. v. United States Secret
Service) Seizure of Stored Electronic Mail Is Not an 'Interception' Under the
Federal Wiretap Act, 69 Tul. L. Rev. 1381 (1995); Paul Allee Curtis, New Limits
on Freedom of the Press: Newsperson's Qualified Privilege Fails to Protect
Nonconfidential Videotape Outtakes (State v. Salsbury) 34 Idaho L. Rev. 191
(1997).
[5] 19 Howell's State Trials 1029 (1765).
[6] "The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized."
[7] Dan Rosen, Newsroom Searches: The Privacy Protection Act Takes Effect, 9
Am. J. Crim. L. 196 (1981).
[8] Boyd v. United States, 116 U.S. 616 (1886).
[9] "No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia, when in actual service
in time of War or public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation."
[10] Rosen, supra note 7, at 196.
[11] Olmstead v. United States, 277 U.S. 438, 474 (1928).
[12] 255 U.S. 298 (1921).
[13] Rosen, Supra note 7, at 197.
[14] Id. 198.
[15] Schnapper, Supra note 1, at 871.
[16] 387 U.S. 294, 303 (1967).
[17] Schnapper, Supra note 1, at 871.
[18] Rosen, Supra note 7, at 198.
[19] Id. 201.
[20] 425 U.S. 391 (1976).
[21] Id. at 409.
[22] 427 U.S. 463 (1976).
[23] Rosen, supra note 7, at 202.
[24] 427 U.S. at 472.
[25] Schnapper, supra note 1, at 871-872.
[26] See Robbins v. California, 453 U.S. 420, 423 (1981); Payton v. New York,
445 U.S. 573, 586 n.25 (1980); Delaware v. Prouse, 440 U.S. 648, 653-54 (1979);
South Dakota v. Opperman, 428 U.S. 364, 372-73 (1976).
[27] Schnapper, supra note 1, at 872.
[28] See Arkansas v. Sanders, 442 U.S. 753, 758 (1979); Dalia v. United States,
441 U.S. 238, 257 (1979); Osborn v. United States, 385 U.S. 323, 351 (1966);
Carroll v. United States, 267 U.S. 132, 147 (1925).
[29] J. Kirk Boyd, Legislative Response to Zurcher v. Stanford Daily, 9 Pepp.
L. Rev. 131, 136 (1981).
[30] Id. at 137.
[31] Id. at 136.
[32] Stanford Daily v. Zurcher, 353 F. Supp. 124 (N.D. Cal. 1972), aff'd, 550
F.2d 464 (9th Cir. 1977), rev'd., 436 U.S. 547, reh. denied. The suit was filed
under 42 U.S.C. 1983 (1970).
[33] 436 U.S. at 552.
[34] Id. at 553
[35] 550 F.2d 464 (9th Cir. 1977).
[36] 436 U.S. at 548.
[37] Id. at 555.
[38] Id. at 562-63.
[39] Id. at 565. The Court said, "[P]roperly administered, the preconditions
for a warrant--probable cause, specificity with respect to the place to be
searched and the things to be seized, and overall reasonableness--should afford
sufficient protection against the harms that are assertedly threatened by
warrants for searching newspaper offices." Id.
[40] Id. at 567.
[41] Id. at 571.
[42] S. Rep. No. 874, 96th Cong., 2d Sess. 5 (1980).
[43] Louis Fisher, Congress' Role and Responsibility in the Federal Balance of
Power: Congress and the Fourth Amendment, 21 Ga. L. Rev. 107, 150. (1986)
[44] Rosen, supra note 7, at 212.
[45] See remarks of Philip B. Heymann, Assistant United States Attorney
General, in The Rights, Privileges, and Power of the Press, 1 Com. & L. 1, 25-26
(1979) (panel discussion at the annual judicial conference of the second
judicial circuit of the United States, May 26-28, 1979).
[46] Fisher, supra note 43, at 151.
[47] 126 Cong. Rec. 26,562 (1980).
[48] 42 U.S.C. 2000aa.
[49] 42 U.S.C. 2000aa (a), (b).
[50] 42 U.S.C. 2000aa (c ).
[51] See, e.g., Rosen, supra note 7, at 224.
[52] See, e.g., Tony Atwater, Newsroom Searches: Is "Probable Cause" Still in
Effect Despite New Law? 4 Journalism Q. 4,9 (1983).
[53] Rosen, supra note 7, at 229.
[54] 42 U.S.C. 2000 Subsection 108.
[55] Reporters Committee for Freedom of the Press (visited August 1, 1998)
<http://www.rcfp.org/NMU/index.cgi>
[56] Reported September 30, 1990, UPI, BC cycle, Regional News, "Paper Protests
Seizure of Reporter's Notes." Also reported October 2, 1990, The Associated
Press, Tuesday, PM cycle, Domestic News, "Reporter's Notebook Seized by Police,
Newspaper Threatens to Sue."
[57] Sandra Davidson Scott, When Police Storm the Newsroom--With A Search
Warrant, 127 Editor & Publisher 48 (March 26, 1994).
[58] News Media Update for 8/9/94 at<http://www.rcfp.org/NMU/index.cgi>
[59] Scott, supra note 57 at 48.
[60] 816 F. Supp. 432; 1993 U.S. Dist. LEXIS 3378
[61] 816 F. Supp. at 436.
[62] DePugh v. Sutton, 917 F. Supp. 690; 1996 U.S. Dist. LEXIS 2334
[63] See Atwater, supra note 52, at 4; and Susan K. Erburu, (Zurcher v.
Stanford Daily) The Legislative Debate, 17 Harv. J. on Legis. 154 (1980).
[64] Michael Sherer, KC Cops Make Newsroom Search, 49 News Photographer 17-18
(Dec. 1994).
[65] 883 F. Supp. at 1286.
[66] Id. at 1288.
[67] 42 U.S.C. 200aa(3).
[68] 42 U.S.C. 2000aa(b)(3).
[69] 883 F. Supp. 1288.
[70] Id. at 1293.
[71] 24 Med. L. Rep. (BNA) at 1354.
[72] Id. at 1355.
[73] Id. at 1357.
[74] Id. at 1360.
[75] 42 U.S.C. 2000aa.
[76] 42 U.S.C. 2000aa-106(f).
[77] Jose M. Sariego, The Privacy Protection Act of 1980: Curbing Unrestricted
Third-Party Searches in the Wake of Zurcher v. Stanford Daily, 14 U. Mich. J.L.
525, 551 (. 1981)
[78] 713 F. Supp. 1308; 1989 U.S. Dist. LEXIS 5975; 16 Media L. Rep. BNA 1834.
[79] 89 F.3d 1350, 1996 U.S. App. LEXIS 17823 (8th Cir.)
[80] 36 F.3d 457; 1994 U.S. App. LEXIS 30323 (8th Cir.)
[81] 42 U.S.C. 2000aa-106 (a)(2).
[82] 42 U.S.C. 2000aa-106(b).
[83] 24 Media L. Rep BNA at 1357.
[84] 42 U.S.C. 2000aa-6(d).
[85] 42 U.S.C. 2000aa-106(a)(1).
[86] 960 F.2d 63; 1992 U.S. App. LEXIS 5193 (8th Cir. 1992).
[87] 42 U.S.C. 2000aa 6(a).
[88] Sariego, supra note 65, at 553.
[89] 883 F. Supp. 1282, 1995 U.S. Dist. LEXIS 9926 at 1291.
[90] 42 U.S.C. 2000aa-6(f)
[91] 36 F.3d. at 459.
[92] 713 F. Supp. at 1315.
[93] 461 U.S. 424, 434, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983).
[94] 713 F. Supp. at 1314.
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