Although nominally concerned with privacy, in reality the Privacy Protection Act of 1980 (PPA) is intended to protect the First Amendment rights of journalists. In short, the act ensures that journalists are free from search warrants seeking to discover notes, drafts, tapes, photographs, or other work products that may provide evidence of criminal activity. Although the act was passed in direct response to the Supreme Court’s decision in Zurcher v. Stanford Daily, 436 U.S. 547 (1978), its origins can be traced to a decision rendered a decade earlier.
For most of the twentieth century, search warrants could only be obtained to discover contraband, instrumentalities, or fruits of criminal activity (Boyd v. U.S., 116 U.S. 616, 1886). In 1967, the Supreme Court ruled that search warrants could also extend to searches for ‘‘mere evidence’’ of crime (Warden v. Hayden, 387 U.S. 294, 1967). This expansion placed journalists directly in the path of future search warrants. Journalists are often in possession of evidence of crimes, such as tapes of informants, photographs, notes, and recordings. The ability of law enforcement agencies to obtain search warrants to seek mere evidence of crime meant it was only a matter of time before journalists would be targeted.
In 1971, the district attorney’s office in Santa Clara, California, obtained a search warrant for the offices of Stanford University’s student-run paper, The Stanford Daily. The warrant was related to a recent clash between police and students on the Stanford campus. The paper had run a series of stories about the clash and included a number of photographs depicting police and student violence. During the protest, some officers were injured by students and the police were eager to uncover the identity of some of the perpetrators. The Stanford Daily’s office was searched in the hope of finding more photographs, that had not been published, which might aid in the identification of students that had attacked the police. Although no photographs were found, the Stanford Daily filed suit claiming First and Fourth Amendment violations in connection with the search. The Supreme Court in Stanford Daily ruled the search warrants valid but noted that nothing prevented Congress from establishing ‘‘nonconstitutional protections’’ for journalists.
In 1980, Congress took the Supreme Court’s invitation and passed the PPA. According to the act, no government officer may search or seize material in the private possession of any individual that intends to use that material for ‘‘public dissemination.’’ The act, however, contains numerous exceptions. Searches and seizures will not violate the PPA when: (1) The only materials searched or seized are contraband, instrumentalities, or fruits of crime; (2) the seizure is necessary to prevent serious injury; (3) there is probable cause to believe that the person in possession of the protected materials has committed or is committing the crime under investigation; or (4) a subpoena proves or will prove unable to produce the materials in question. When a search is done in violation of the PPA, the aggrieved party may bring a civil suit but there is no exclusionary rule for the evidence.
Since its enactment in 1980, few lawsuits have been brought under the PPA and, among those that have been brought, few have been successful. In most of these cases, the individual in question is also a ‘‘suspect’’ in the criminal investigation and, as a result, falls under the ‘‘suspect exception’’ outlined here. Modern technology has given rise to some new questions: (1) whether a private citizen’s intent to publicly disseminate information via a Web page falls under the PPA’s protections; and (2) whether seizures of PPA-protected materials commingled with nonprotected materials—for example, on a computer harddrive— gives rise to liability. In the few cases that have raised these questions, courts have generally found that the PPA’s protections do encompass the Internet- related activities of nonjournalists but that seizures of PPA-protected materials commingled with nonprotected materials on a hard-drive do not give rise to liability, although law enforcement is forbidden from searching the protected materials (Mink v. Salazar, 344 F. Supp. 2d 1231, D. Colo. 2004; Guest v. Leis, 255 F.3d 325, 6th Cir., 2001).
DOUGLAS J. SYLVESTER
References and Further Reading
Cases and Statutes Cited
See also Anonymity and Free Speech; Anonymity in Online Communications; Boyd v. United States, 116 U.S. 616 (1886); Congressional Protection of Privacy; Exclusionary Rule; Freedom of the Press: Modern Period (1917–Present); Freedom of Speech and Press: Nineteenth Century; Journalism and Sources; Newsroom Searches; Obscenity; Privacy; Search (General Definition); Search Warrants; Seizures; Zurcher v. Stanford Daily, 436 U.S. 547 (1978)