Newsroom searches -- FISA warrants

Newsroom searches

In 1978, the Supreme Court ruled that a warrant may be issued to search a newsroom or a reporter’s home if there is reason to believe that evidence of a crime will be found there. In that case, police searched a college newspaper’s newsroom for photographs identifying some demonstrators who had injured policemen.¹⁷

In direct reaction to this ruling, Congress passed the Privacy Protection Act of 1980, which limits the circumstances under which federal, state and local law enforcement officials may obtain warrants to search for journalists’ “work product materials” or “documentary materials.”¹⁸

“Work product materials” are items created or possessed for the “purposes of communicating such materials to the public,” such as drafts of articles, outtakes or notes. “Documentary materials” are “materials upon which information is formally recorded,” such as photographs or audio and visual recordings.

The act lists some exceptions. “Work product materials” and “documentary materials” may be seized under a search warrant if there is “probable cause to believe” the reporter has committed, or is committing, a crime to which the materials relate. Also, if the information is necessary to prevent death or serious harm to someone, it may be seized.

“Documentary materials” also may be seized under a search warrant if the advance notice provided when a subpoena is issued would result in the destruction of the materials, or if a previous subpoena has been ignored, all legal remedies to enforce the subpoena have been exhausted and any further delay in the trial or investigation would “threaten the interests of justice.”

Additionally, neither “work product materials” nor “documentary materials” are protected from search or seizure if they relate to national security or child pornography.

If law enforcement officials violate any provision of the act, a news organization may sue and receive damages to cover legal fees and actual injury. The minimum amount that will be awarded is $1,000.

Even though the Privacy Protection Act applies to state searches as well as those conducted by federal authorities, at least nine states — California, Connecticut, Illinois, Nebraska, New Jersey, Oregon, Texas, Washington and Wisconsin¹⁹ — have laws providing similar or even greater protection. Some states require that search warrants for documents be directed only at parties suspected of involvement in the commission of a crime, which generally exempts journalists.

If law enforcement officials arrive at a newsroom or a reporter’s home with a search warrant, the journalist should try to delay the search until a lawyer has examined the warrant.²⁰ If the search proceeds, staff photographers or camera operators should record the scene. Although staff members may not impede the law enforcement officials, they are not required to assist the searchers.

If you can, consult an attorney immediately after the search is over about filing a suit in either state or federal court. It is important to move quickly because you may be able to obtain emergency review by a judge in a matter of hours. If your news organization does not have an attorney, contact the Reporters Committee for assistance in obtaining one.

FISA warrants

In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA),²¹ which created a secret spy court with powers to issue secret warrants authorizing officials to perform wiretaps and searches. After the attacks of September 11, the court’s powers were increased with the passage of the USA PATRIOT Act. The act expanded several categories of information that may be obtained by the court, and allowed for sharing of information by a broad range of agencies. Proceedings of the FISA court are conducted in secret, and people investigated under its powers are not aware of the investigation.

One concern of the news media is that the FISA could be used by the government to spy on journalists and discover their sources. Under the PATRIOT Act, investigators need show only that national security is a “significant purpose” in order to obtain a FISA warrant. And because proceedings of the FISA court are secret, journalists will have no warning that their sources are being disclosed. Indeed, a journalist whose source is revealed in the course of a FISA inquiry may never find out about the breach.

The PATRIOT Act also allows government officials to obtain an order from the FISA court permitting them to gather from any business all books, documents and other items related to foreign intelligence information. The court cannot grant such an order for the sole purpose of investigating activities protected by the First Amendment. Nevertheless, if a business is subject to such a search, the business will also be served with a gag order prohibiting them from talking about it. The U.S. Court of Appeals in New York (2nd Cir.) held in 2008 that the First Amendment requires that a recipient must be allowed to appeal the demand and that Congress cannot limit the evidence allowed in that appeal — rights that were not guaranteed in the original legislation.²²

This aspect of the PATRIOT Act appears to apply to newsrooms, which potentially could be subject to a search, despite the provisions of the Privacy Protection Act prohibiting such searches. Indeed, Justice Department officials have conceded that newspapers might be subject to a court order requiring production of documents.

Notes:

17. Zurcher v. Stanford Daily, 436 U.S. 547 (1978), reh’g denied, 439 U.S. 885 (1978).

18. 42 U.S.C. §§ 2000aa.

19. See Cal. Penal Code § 1524(g); Conn. Gen. Stat. §§ 54-33i and j; 725 Ill. Comp. Stat. 5/108-3(b); Neb. Rev. Stat. § 29-813(2); N.J. Stat. Ann. § 2A:84A-21.9; Or. Rev. Stat. § 44.520(2); Tex. Code Crim. Proc. Ann. art. 18.01(e); Wash. Rev. Code § 10.79.015(3); Wisc. Stat. Ann. § 968.13(1)(d).

20. See Citicasters v. McCaskill, 89 F.3d 1350 (8th Cir.1996) (holding search warrants issued with “reasonable belief” that an exception to the Privacy Protection Act applies are proper).

21. 50 U.S.C. §§ 1801-1811 (1978).

22. Doe, Inc. v. Mukasey, 549 F.3d 861 (2nd Cir. 2008).