Passed in the wake of a police raid on the Stanford Daily, the federal Privacy Protection Act of 1980 is meant to protect journalists and newsrooms from searches and seizures. But more could be done to shield reporters from search warrants under state law.
After the police raid on the Marion County Record earlier this month, an often overlooked federal law was on the lips of press freedom advocates and media lawyers everywhere: The Privacy Protection Act of 1980, also known as the PPA.
As every police officer, prosecutor, and judge should know — but too often don’t — the PPA prohibits government searches and seizures of journalistic materials in almost all criminal cases. But government authorities and reporters should also be aware that in certain states, state law gives additional protection against newsroom searches.
According to a guide by the Student Press Law Center, at least eight states "have their own laws governing newsroom search and seizures: California, Connecticut, Nebraska, New Jersey, Oregon, Texas, Washington and Wisconsin.” Journalists in those states should familiarize themselves with these laws and have a copy of them (and the PPA) ready in case police come knocking on their newsroom door with a search warrant.
Lawmakers in states without their own prohibitions on newsroom raids should consider enacting them. While the PPA applies to state and local law enforcement, it’s not enough to rely on federal law. All too often, police and even judges don’t know the PPA exists — or conveniently forget to mention it.
That’s a problem, because the process for obtaining a search warrant doesn’t involve the targeted journalist or newsroom. When police apply to a court for a search warrant, reporters and news outlets are left to rely on law enforcement officers and judges knowing about the PPA and applying it correctly. That can result in judges issuing search warrants in blatant violation of federal law.
Enshrining prohibitions on searches of journalists and newsrooms in state law may make state and local police and state court judges more likely to be aware of them.
Lawmakers can also use state law to give stronger protection against searches of journalists and newsrooms than that in the PPA. For one thing, the PPA has certain limited exceptions allowing government officials to sometimes use a search warrant for journalistic material. State law doesn’t have to include those exceptions. The California law, for example, flatly prohibits the use of search warrants targeting information about journalists’ confidential sources or unpublished information.
State laws that absolutely prohibit searches and seizures of journalistic material would lessen the risk of law enforcement abusing “exceptions” to spring a search on a newsroom. At the same time, they wouldn’t necessarily prevent police from accessing critical information, since police could still attempt to subpoena materials from journalists. Subpoenas allow journalists to have their day in court to object to their propriety, including under state shield laws that limit when journalists can be required to disclose sources and newsgathering materials.
If lawmakers must make exceptions to state laws prohibiting searches of journalists and newsrooms, they should be limited. One common exception found in both the PPA and most existing state-level protections is the “suspect exception,” which permits police to use a search warrant if the targeted journalist or news organization is suspected of committing a crime.
Suspect exceptions, however, can be problematic when the “crime” that a journalist is accused of committing is related to journalism itself, such as obtaining and publishing information that the government would prefer to keep secret. (That’s why, in most cases, the PPA’s suspect exception doesn’t permit a search if the crime the target is accused of consists of the “receipt, possession, communication, or withholding” of journalistic material.)
Any state-level suspect exception should also make clear that crimes related to newsgathering or publishing information can’t be the basis for invoking the exception. Exceptions should include “lawful obtainment,” in addition to “receipt,” because journalists are entitled to actively seek records that others procured illegally. The law on that point may not have been entirely clear when the PPA was enacted, but it is now.
Finally, state lawmakers could create stronger enforcement mechanisms for their laws than those found in the PPA. The PPA allows journalists to sue state officers or employees who violate their rights under the law. But it also grants defendants a broad “good faith” exception that allows them to escape liability if they had “a reasonable good faith belief in the lawfulness of [their] conduct.” Lawmakers could give state laws real teeth by permitting civil suits without a good faith defense. It’s fair to expect that police know they shouldn’t raid newsrooms.
Police raids like the one in Marion chill newsgathering and reporting in the public interest. The PPA provides strong protection, but clearly, it’s not enough. To prevent another Marion, state lawmakers must act to prohibit searches of newsrooms and journalists under state law. That said, even state protections are no panacea. Despite a California law prohibiting searches for information about journalists’ confidential sources, San Francisco police still obtained a search warrant for freelance journalist Bryan Carmody.
So, in addition to enacting these laws, we need to ensure that police and judges are educated about them.
