Earlier this month, we wrote about Justin Pulliam, a Texas citizen journalist who law enforcement is trying to extort into signing a liability waiver in exchange for returning his own equipment. The Fort Bend County Sheriff’s Office seized the gear when officers arrested him for filming them as they conducted a mental health check.
Unfortunately, Pulliam isn’t the only journalist who’s had his equipment seized and held for unjustifiably long periods of time by law enforcement. (Though his is the only case we’re aware of in which they have been so explicit that they’re holding equipment hostage to try to force a journalist to release them from liability.)
Some journalists, like Pulliam, have begun to push back on these and other abuses. With the help of the Institute for Justice, he filed a lawsuit over his arrest and a separate incident in which the sheriff’s department excluded him from a news conference.
To help all journalists understand their rights when it comes to getting back their seized equipment, we spoke with Christie Hebert, an attorney at the Institute for Justice and expert on property rights and freedom of speech.
Law enforcement seizures and searches of journalists’ equipment raise serious concerns about the protection of confidential sources and information, and may violate state shield laws or the federal Privacy Protection Act of 1980, which prohibits searches and seizures of newsgathering materials except when investigating a crime unrelated to newsgathering.
When law enforcement keeps journalists’ equipment for long periods of time, it also raises practical concerns. Journalists may lose access to information stored on devices that they need for their reporting, like pictures, recordings of interviews, or notes. They may not be able to replace expensive equipment, making it harder to continue their work.
When police arrest a journalist, they often also seize their equipment, like a cellphone or camera. Can police seize items from people they arrest, and are there any legal limits on that authority?
Like anyone else the police arrest, the police must have probable cause to believe that the individual committed a crime. That’s a standard that gives a lot of deference to police.
Once a person is under arrest, police can seize items with the person for safekeeping. If a person is released following arrest, the police must return their possessions unless there is probable cause to believe that the possessions are evidence related to the suspected crime.
Journalists, like everyone else, have Fourth Amendment rights, which protect them against unreasonable searches and seizures. The police may not normally search electronic data on equipment seized from an arrestee without a warrant.
Say a journalist is arrested while covering a protest, and the police say, “Give me your phone” or “Give me your camera.” What should the journalist do?
If the journalist has formally been placed under arrest, the journalist should comply. A journalist who has not been arrested has no duty to give the police property of any kind, including devices related to news coverage such as phones or cameras, simply because the police demand it.
Likewise, a journalist has no duty to show police the contents of a device, such as photos or writing, even if the journalist has been arrested. Nor does a journalist have to delete photos or writing because the police demand it.
Journalists should avoid escalating encounters with the police, especially if they believe that they are being retaliated against. One thing that journalists can do, however, is take steps to protect their information on their devices. Devices should have passwords. If the police ask for devices as part of an arrest, the journalist should lock the device. Journalists do not have to tell police their passwords. If police need to search the electronic contents of a device, they can get a search warrant, unless some other law prohibits them from doing so.
The U.S. Press Freedom Tracker has documented several instances of police retaining journalists’ equipment for weeks or months, including after all of the charges against a journalist have been dropped. What are the impacts on freedom of speech and of the press when police hold onto journalists’ equipment for long periods of time?
One of the biggest consequences of the seizure of journalist’s equipment is that the journalists can’t use that equipment to gather and publish the news. That means their speech is stifled. That’s particularly important when it comes to reporting on the government’s activities. Without reporting on what the government is doing, it’s much harder to hold the government accountable.
In general, what have courts said about law enforcement’s right to hold onto items indefinitely that they seize from arrestees?
If law enforcement believes that the items were used in a crime or might have evidence of a crime stored on them, then the police can keep that property. But police should return that property once there is no reason to believe that the items were used in a crime or have evidence of a crime.
A journalist should get legal counsel. Usually, police aren’t interested in the device itself, just what’s on it. It may be that the journalist won’t object to providing the data (such as pictures of crimes being committed) and can arrange to do that in order to get the device back.
Is it legal for the police to hold a journalist’s equipment hostage until the journalist agrees not to sue them, like in Pulliam’s case?
No, the government cannot prevent a person — member of the press or not — from suing the government for violating constitutional rights by forcing someone to sign a liability release to get their property back.
On a practical level, what steps should a journalist whose equipment has been seized take to try to get it released by the police? What can they do themselves, and at what point might they need to get a lawyer involved?
The person should make a formal demand in writing for the return of their equipment, especially if they have reason to believe that the equipment is being held even without any connection to an alleged crime. If the government still refuses to give the equipment back or the person has reason to believe that their equipment has been searched without a warrant, the press member should speak with a lawyer.
The Tracker has also documented cases where police have damaged or lost journalists’ equipment while in police custody. Is there anything reporters can do to get reimbursed for their damaged or lost equipment?
Documenting the damage and making a written request that the police pay for the damage or lost equipment is the first step. Following up on the failure to pay is also important. If the police still don’t give back the equipment, a journalist should explore legal action.
What changes are needed to discourage police from confiscating journalists’ equipment and refusing to return it?
I’d like to see the police held accountable for failing to return equipment promptly, rather than being able to hold on to the equipment until they feel like returning it or a court forces them to.
For more about searches, seizures and surveillance of journalists and their equipment, check out our digital security blog and the numerous additional guides and resources published by our digital security team.
