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Confidential Sources and Information: 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.⁹

In direct reaction to this ruling and the subsequent application, 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 products" or "documentary materials."¹⁰

A "work product" consists of materials created or possessed for the "purposes of communicating such materials to the public," such as drafts of articles, film outtakes or notes. "Documentary materials" are "materials upon which information is formally recorded," such as photographs or audio and videotapes.

The act lists some exceptions. "Work products" 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, both "work products" and "documentary materials" are not 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, eight states — California, Connecticut, Illinois, Nebraska, New Jersey, Oregon, Texas and Washington¹¹ — have laws providing similar or even greater protection. Some states require that search warrants for documents be directed only at parties suspected of being concerned 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.¹² 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.

Consult your 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.

Another option allows you to assert your claim in an administrative proceeding, which may lead to sanctions against the official who violated the act. Your attorney can help you decide which forum will offer the best remedy.

Notes

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

10. 42 U.S.C. §§ 2000aa.

11. See Cal. Penal Code § 1524(g); Conn. Gen. Stat. §§ 54-33i and j; Il. Stat. Ch. 38 § 108-3; Neb. Rev. Stat. §29-813(2); N.J. Stat. § 2A:84A-21.9; Or. Rev. Stat. § 44.520(2); Tex. Code Crim. Proc., art. 18.01(e); Wash. Rev. Code § 10.79.015(3).

12. 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).

Next section: Confidential Sources and Information: FISA warrants