Student media guide to the Privacy Protection Act

Legal

Just days after taking over as editor of her student newspaper at James Madison University in 2010, Katie Thisdell was jarred out of the shower early one Friday morning by a phone call that no journalist anticipates.

Get down to the office right now, she was told, there are 10 armed police officers and a state prosecutor at the door.

Officers from Harrisonburg, Va., were swarming the newsroom of The Breeze in search of photos from a weekend street party that turned into an alcohol-fueled brawl, with trash cans set on fire and police cruisers vandalized.

Police demanded a CD of all of the newspaper’s unpublished photos, and although Thisdell complied under duress, she immediately called for legal help. After days of negotiation, the Rockingham County Commonwealth’s Attorney acknowledged that the search was unlawful and returned the CD.

This frightening scenario reached a successful resolution only because of a federal anti-search law that was, itself, inspired by a college newsroom raid a generation earlier.

Congress took action in response to a 1978 U.S. Supreme Court ruling in Zurcher v. Stanford Daily that police could search a newsroom, just like any other premises, as long as they had a valid search warrant.1

Thankfully, Zurcher‘s reign did not last long. In 1980, Congress stepped in and passed the Privacy Protection Act of 1980 (PPA)2 that counteracted Zurcher. The PPA creates significant financial consequences for government officials who search a reporter’s workspace or seize journalists’ work product, and can help the news media prevent such intrusions before they occur.

This article is intended to provide student media with a basic introduction to the Privacy Protection Act of 1980. First, it will discuss the Zurcher decision and the origins of the PPA. Second, it will analyze the specific provisions of the law. Next, the article will examine the Act and some of the questions raised when it is applied to student media. Finally, it will provide some practical tips on what student media should do if confronted with a newsroom search or a seizure of materials by a government official.

Background

Interestingly, the federal law that now shields the newsrooms of The New York Times, Newsweek, CNN and all other news organizations actually has its roots in the student media. In 1971, The Stanford Daily, Stanford University’s student newspaper, published staff photos of a violent clash between student demonstrators and city and county police. Students at the school were engaged in a sit-in protest at the university’s hospital when police raided the demonstration and a fight broke out. Several police officers were assaulted, but police claimed they could only identify two of their assailants.3

The paper ran a special edition devoted to the protest and subsequent violence. After the edition was distributed, the police obtained a warrant to search The Daily‘s offices for the pictures as well as any negatives or film of the incident. The warrant claimed that the newspaper had “evidence” relating to the attack on the police officers. At no point did the police ever accuse or suggest that any member of The Daily was involved in the attack. The police searched for the materials in the paper’s trash, desks and filing cabinets. No material was seized but the newspaper’s staff accused the police of exceeding the scope of the warrant by examining and reading confidential notes and letters.

The Daily sued the police department claiming the search was unconstitutional. A federal district court ruled for The Daily and held that the search violated the Fourth Amendment, which protects individuals from unreasonable searches by government officials. The court ruled that if an individual was not suspected of a criminal act, then a search warrant could not be issued to search for materials in the individual’s possession unless there was probable cause that the individual would destroy or remove the materials and not comply with a subpoena. Further, the court said that if the search was directed at a press organization, the First Amendment prevented government officials from issuing a warrant except “in the rare circumstance where there is a clear showing that (1) important materials will be destroyed or removed from the jurisdiction; and (2) a restraining order would be futile.” A federal court of appeals subsequently affirmed the district court’s decision.

Unfortunately, the U.S. Supreme Court reversed and ruled 5-3 that the search of The Daily‘s newsroom was valid and constitutional. According to Justice Byron White, writing for the majority of the Court, the police could conduct a search of an individual who was not a suspect in a criminal investigation as long as they had a reasonable belief that the materials to be seized were at the location targeted for search.4

The majority was aware of the concerns that this kind of search could have a chilling effect on freedom of the press. The Court, however, said it was confident that magistrates and judges would be mindful of the First Amendment and that they could draft clearly written, carefully targeted search warrants that would protect the press’s ability to do its job.

While the Court had confidence in the ability of judges to always do the right thing, many others did not. News organizations were outraged by the Zurcher decision. Media groups were concerned that the decision would turn the media into an investigatory arm of the government, chill investigations into government misconduct and place an incredible burden on the media.5 Several high-profile members of the media contested that had Zurcher been decided in 1968, instead of 1978, the media battles with the Nixon administration (most notably over the secret “Pentagon Papers”) would have ended up differently. The ruling was called “just plain awful,” [the] “worst, most dangerous ruling the Court has made in memory” and “a constitutional outrage.”6

Congress also expressed its unhappiness with the decision. One week after the ruling, three bills — from which eventually sprang the PPA — were introduced to counteract Zurcher.7 With the outcry increasing in volume, even the Department of Justice, which had written a legal brief in support of the police search, backtracked from its position.8

The Privacy Protection Act

In a nutshell, the PPA provides members of the media protection from most newsroom searches and seizures by government officials engaged in a criminal investigation. The PPA divides materials into (1) “work product” materials and (2) “documentary” materials and the law provides different protections and exceptions depending on the type of material involved.

Before diving into the specifics of the PPA, however, it is worth noting two important things. First, the PPA only applies to searches and seizures by the government during a criminal investigation.9 Requests for documents by a party in a civil lawsuit, for example, are not covered by the act.

Second, the PPA applies to any “government officer or employee” not just law enforcement officials.10 This is an important point, especially for student media who not only have to worry about police and other law enforcement officials, but also deans, principals, campus safety personnel (who might not technically be considered “law enforcement officials”), maintenance workers, building supervisors, teachers and a host of other government officers or employees who might want to snoop around a student newsroom or obtain a journalist’s work. In the right situation, the PPA should provide student media some protection from all of their prying eyes (and hands) as long as the search or seizure relates to a criminal investigation. Unfortunately, private school student media probably cannot rely on the PPA to protect them from searches by their school administrators (although they are still protected from searches by federal, state or local police and other government officials.) The PPA only applies to searches and seizures conducted by government officials.

Work Product

The first section of the PPA addresses a reporter’s “work product” materials. As defined by the PPA, “work product” includes materials that are “prepared, produced, authored, or created” for the purpose of communicating such materials to the public.11 For most student media and their staff the public dissemination element will be easily satisfied. However, for individuals whose affiliation with an established publication is more tenuous or whose intent to communicate information to the public is unclear, application of the PPA might prove more difficult.12 The PPA’s “work product” definition also protects a reporter’s “mental impressions, conclusions, opinions or theories” concerning such material.13 Work product materials, therefore, should normally include a reporter’s notes, story drafts and internal memoranda. Indeed, as long as it could be understood by a reasonable person that that a reporter intended to disseminate the information in his possession to the general public, any form of the reporter’s “work product” should be protected from search and seizure.14

The PPA’s protections extend to any person intending to publish their material in “a newspaper, book, broadcast or other similar form of public communication.”15 This suggests that reporters for a newspaper, yearbook, online publication, radio station or any other kind of medium could seek protection under the PPA.

This privilege, however, is not absolute and the PPA lists several exceptions. The first exception — the “probable cause” exception — concerns criminal acts that may have been committed by the reporter himself. Under this exception, if “probable cause” exists that the reporter or person in possession of the “work product” material has committed or is in the process of committing a crime, then the government official may conduct the search.16 To fit within the exception, the “work product” must relate to the crime in question.17

For example, if our hypothetical reporter, above, had actually purchased illegal drugs from the dealer instead of just interviewing him, the reporter could not use the PPA to shield himself from a police search of his newsroom desk or employee locker to look for the drugs if police had probable cause to believe he was hiding them there. Journalists have no special license to break the law and the PPA does not change that.

Note, however, that the government cannot use the “probable cause” exception to get around the PPA if the only “crime” a reporter is charged with consists of the receipt, possession or communication of the work product information itself.18 Though there are a small number of very limited exceptions to this rule,19 this would generally prevent a prosecutor, for example, from charging a reporter who has innocently obtained a copy of a stolen document with “receipt of stolen documents” simply so that she can use the “probable cause” exception to search the reporter’s newsroom.

The second exception is more easily understood. When government officials have “reason to believe” that “work product” materials must be seized immediately to prevent someone’s death or a serious bodily injury, they may seize the materials without violating the PPA.20 Clearly, this exemption will rarely come into play and government officials who abuse it can be held accountable.

Documentary Materials

The second section of the PPA deals with “documentary materials.” “Documentary materials” are defined rather broadly by the PPA: “materials upon which information is recorded.”21 These may include photographs, motion pictures, audiotapes, and film negatives. Computer disks are also considered “documentary materials” along with any other “mechanically, magnetically or electronically recorded tape, card or disk.”22

“Documentary materials” do not include items associated with a criminal act.23 This includes contraband, items that are the results of a crime, anything designed or intended to be used in a crime and anything that has already been used in a crime. For example, a gun picked up by a reporter at the scene of a robbery, sheets of paper on which the robbers’ plans are written, and any cash found at the scene would not be considered “documentary materials” protected by the PPA.

With a few key differences, the PPA treats “documentary materials” the same as “work product” materials. As with “work product” materials, the PPA makes it unlawful for a government official to search and/or seize “documentary materials” during the course of a criminal investigation where the person subject to the search is connected with an attempt to disseminate the information to the general public.24

There are four exceptions for “documentary materials”. The first two exceptions that allow government officials to get around the PPA are the same as for “work product” materials: (1) “probable cause” that the reporter has evidence linking him to a crime that he or she has committed and (2) a reason to believe that death or serious injury will result if a newsroom search is delayed.25

A third exception permits a search or seizure of documentary materials when there is a “reason to believe” that the materials sought by government officials would be destroyed, hidden or altered if the materials were requested through a subpoena.26 Unless government officials can present evidence that a news organization has indicated that they would harm the material or that this has been the organization’s practice in the past, government officials should have little success invoking this exception. For this reason, student media are cautioned never to suggest that they will illegally impede an official investigation or destroy evidence.

The fourth and final exception applies when the person in possession of the “documentary materials” has not produced them in accordance with a court order, typically in the form of a subpoena.27 For this exception to apply, the government must show one of two things. First, they can show that they tried to obtain the materials in court and that — even after all avenues for appeal had been exhausted — the reporter or news organization still refused to obey a final court order.28 Alternatively, even if the government has not sought the materials in court — or if an appeal in court is still pending — the government can get around the PPA’s protections if they show that any further delay would “threaten the interests of justice.”29 To prevent government officials from abusing this rather fuzzy exception, the PPA requires that the individual in possession of the materials must be given an opportunity to contest the government’s claim prior to any materials actually being seized.

Remedies

To discourage illegal searches and seizures, the PPA allows those harmed to file a civil lawsuit if they believe the search and/or seizure was conducted in violation of the PPA.

Where a reporter or media organization prevails they will be awarded a minimum of $1,000 in damages.30 Moreover, those responsible for the illegal search or seizure may also be forced to pay the media organization’s attorney fees and litigation costs, an amount that can easily reach into the tens of thousands of dollars.31

If the search is conducted by officials of the federal government (for example, the FBI, DEA, etc.), one can sue the federal government and the official’s supervising agency or department.32 The PPA does not state whether a claim can also be made against the actual official who conducted the search.

For searches/seizures conducted by state or local government officials, such as public university or high school administrators, a claim can be brought against the official’s supervising agency or department.33 The state itself can be sued only if the state has waived its sovereign immunity regarding the PPA. State officials who conducted the search may also be sued.34

Application of the PPA to Student Media

Despite being sparked by a student media case, there are, to date, no published court decisions where the PPA has been used by the student media to punish a newsroom search or confiscation.35 While questions have occasionally been raised about whether the PPA provides student media the same protection as professional reporters, in most cases there should be little reason to worry.

As discussed above, the PPA applies to “government officials” conducting an investigation into criminal activity. The PPA does not specifically mention or distinguish between professional and student media and given the history and intent of lawmakers in enacting the PPA — namely, overturning a Supreme Court decision that allowed for the search of a student newspaper’s newsroom — it is hard to imagine a court finding such a distinction.

The law, however, does state that only those individuals engaged in the dissemination of information to the public who are “in or affecting interstate or foreign commerce” are protected.36

While this requirement may exclude a small number of student media, most should be safe. A 1993 survey estimated that 90 percent of all high school publications accept advertising.37 For college student media, the number is probably even higher. Many of these ads are purchased by either local or national businesses who themselves are most certainly within the stream of interstate commerce. This should bring most student media within the friendly confines of the PPA. In addition, many student media sell subscriptions to their publications. Often, the recipients are alumni who live outside of the state. This, too, should be enough to fit within the interstate commerce requirement. In such cases, a student publication would be in a position no different than a small-town commercial newspaper, which is presumably covered by the law.

An Alternative: State Law Protection

In addition to the PPA, at least seven states have their own laws governing newsroom search and seizures: California, Connecticut, Nebraska, New Jersey, Oregon, Texas, Washington and Wisconsin.38

In some cases, these state laws may provide student media with greater protection than the PPA. For example, New Jersey’s newsroom search law protects “any person … engaged in [or] connected with” gathering, editing or publishing news for the public.39

Unlike the PPA, there is no requirement that the media affect interstate or foreign commerce. Such a broad definition of a newsperson would almost certainly cover New Jersey student journalists.

A Practical Guide

So now you know the law — but what exactly should you do if police or school officials show up at your newsroom door and demand to search through your office or see your photo negatives?

  • First, don’t panic. While police officers, FBI agents or school administrators can be intimidating, their authority is not unlimited and, as you have read above, the law provides the press with significant legal rights and protections that government officials must observe. It is important that you maintain a professional demeanor. Be firm but courteous in explaining your position. It will do you no good to get into a shouting match. Chances are good that those demanding to search your newsroom have never even heard of the Privacy Protection Act and may not understand why journalists would be reluctant to cooperate. Your job is to educate them — and that requires a clear, cool head.
  • Attempt to delay the search. Ask to see the search warrant. Take time to read the whole thing. Also, ask to see the official’s identification. Obtain copies of all documents, if possible. Politely ask the officials questions, such as what they are looking for and why they want it. You should not unreasonably interfere or attempt to physically prevent their search, but inform them in no uncertain terms that you object to any intrusion into your newsroom and believe it is unlawful. If you consent to the search — either explicitly or implicitly (for example, by opening a file cabinet without objection) — you may lose your right to contest their actions later on.
  • Refer to the law. Have a copy of the Privacy Protection Act available in the newsroom to present to officials. One college newsroom has gone so far as to hang a framed copy of the law inscribed with the words “Break glass in case of emergency” on their newsroom wall. It’s funny — but it’s also an effective reminder for the newspaper’s staff. You can find a copy of the PPA on the Student Press Law Center’s website, or print off your own “Break glass in case of emergency” poster. If you live in one of the seven states that has a state newsroom search law, be sure you obtain a copy of that as well. Given the PPA’s exceptions, you may want to ask those demanding to search your newsroom or ordering you to turn over materials whether someone on your staff is a suspect in a criminal investigation or whether the paper has failed to respond to a court order or subpoena? Assure them that you will not destroy or alter any evidence that they may be seeking. Once they realize that you probably know more about the law than they do, they may begin to have second thoughts.
  • Get help. Ask that they give you an opportunity to call your attorney or the SPLC. Suggest that they may also want to consult with their own lawyers before proceeding. Inform them that you may be forced to sue if they go forward with the search and that the penalties for violating the law are significant.
  • Document the search. If, despite your best efforts, the search proceeds, carefully monitor and document their actions. Note what they are looking through and record any material seized or copied. Write down the names of everyone present during the search. Where possible, quietly and unobtrusively videotape and photograph the search. Photos can be important not just as evidence in a subsequent legal challenge but also for your news coverage of the search.
  • Legally challenge the search. Once the search is over, move into high gear. If you have not already contacted an attorney, do so. You will need legal representation to take your case before a judge. If they have illegally seized material, it is important to move quickly to obtain a court order to have it returned. You should also alert local media, your state press organization — and, of course, the Student Press Law Center.
  • Be prepared. Finally, the time to prepare for a newsroom search is before it happens. Be sure that new staff members are given instructions about what to do in the event of a threatened confiscation of materials or newsroom search. Make sure they understand the danger of consenting to such actions. Show them where you keep the newsroom’s copy of the PPA. Prominently display contact information for the publication’s editors, adviser and attorney.

Conclusion

The Privacy Protection Act provides journalists with a reliable shield against encroachments by the government. While we hope you will never be in a situation where it is necessary to use the law, it is vitally important for all journalists to know that it exists and to be prepared. You never know when that knock on your newsroom door might come.

Endnotes

  1. Zurcher v. Stanford Daily et al, 436 U.S. 547, 568 (1978)
  2. 42 U.S.C.S. §2000aa
  3. The facts of the case are taken from the Supreme Court’s decision in Zurcher.
  4. Zurcher at 559
  5. Leading Media Figures Attack Police Raid Ruling, The News Media & the L., July 1978, at 4.
  6. Id.
  7. Bills Would Void Police Ruling by High Court, The News Media & the Law., July 1978, at 5.
  8. Id.
  9. 42 U.S.C.S. §2000aa(a), (b)
  10. See Id.
  11. 42 U.S.C.S. §2000aa-7(b)
  12. See Lambert & Palmer Communications, Inc. v. Polk County, 723 F.Supp. 128, 132 (S.D. IA 1989)
  13. 42 U.S.C.S. §2000aa-7(b)(3)
  14. Government officials must conduct a reasonable investigation into the party to be searched to determine the party is not one who disseminates information to the public. See Steve Jackson Games, Inc. v. U.S. Secret Service, 816 F.Supp. 432.441 (W.D. Tex. 1993)
  15. 42 U.S.C.S. §2000aa(a)
  16. 42 U.S.C.S. §2000aa(a)(1)
  17. Note that the police, or government official, probably do not have to specify or cite one of these exemptions in their application in order for the warrant to be valid. See Citicasters v. McCaskill, 89 F.3d 1350 (8th Cir. 1996).
  18. 42 U.S.C.S. §2000aa(a)(1)
  19. The PPA allows government officials to search newsrooms where a reporter receives, possesses or communicates certain information relating to national defense, classified or restricted information [see 42 USCS § 2000aa(a)(1)] or if the offense relates to the possession or distribution of child pornography, sexual exploitation of children or child slavery. “Child Pornography Prevention Act” 18 U.S.C.S. §2252(6)
  20. 42 U.S.C.S. §2000aa(a)(2)
  21. 42 U.S.C.S. §2000aa-7(a)
  22. Id.
  23. Id.
  24. 42 U.S.C.S. §2000aa(b)
  25. 42 U.S.C.S. §2000aa(b)(1),(2)
  26. 42 U.S.C.S. §2000aa(b)(3)
  27. 42 U.S.C.S. §2000aa(b)(4)
  28. 42 U.S.C.S. §2000aa(b)(4)(A)
  29. 42 U.S.C.S. §2000aa(b)(4)(B)
  30. 42 U.S.C.S. §2000aa-6(f)
  31. 42 U.S.C.S. §2000aa-6(f)
  32. See 42 U.S.C.S. §2000aa-6(a)
  33. See 42 U.S.C.S. §2000aa-6(a)(1)
  34. A complete defense exists for state officials who are personally sued under the PPA. If the official “had a reasonable good faith belief” that the search was lawful then any civil claim against the official will fail. 42 U.S.C.S. §2000aa-6(b). This defense only applies to the officer and not the governmental agency. However, the government may claim immunity if the offending official is a judicial officer. Also keep in mind that all claims can only be brought if the government official was acting within his/her official capacity. In other words, the search/seizure had to be conducted under the scope of the official’s employment. 42 U.S.C.S. §2000aa-6(a). A claim cannot be filed under the PPA if the official conducted the search for personal reasons not related to their employment. In such cases, however, one can still file a non-PPA claim or charge against the individual (for example, trespassing or theft of property).
  35. In fact, as this article went to press, there was surprisingly very little case law interpreting the PPA. Few cases have dealt — either directly or indirectly — with the statute in its 20-plus years of existence and only one, Citicasters, cited at footnote 17, included an in-depth analysis.
  36. 42 U.S.C.S. §2000aa(a),(b)
  37. Freedom Forum, Death by Cheeseburger: High School Journalism in the 1990’s and Beyond (1994), page 4.
  38. Cal. Penal Code § 1524 (Deering 1986 & Supp. 1992)(see also, Cal. Evidence Code § 1070); Conn. Gen. Stat. § 54-33j(1998); Neb. Rev. Stat. § 29-813 (1991); N.J. Stat. § 2A:84A-21.9 (2001); Or. Rev. Stat. § 44.520 (1999); Tex. Crim. Proc.Code Ann. § 18.01(e) (West 1998); Wash. Rev. Code § 10.79.015 (1980); Wisc. Stat. Ann. § 968.13(1)(d)(2000)
  39. N.J. Stat. § 2A:84A-21.9 (2001)