From the Summer 2010 issue of The News Media & The Law, page 16.
Two newsroom searches last spring raised questions about why law enforcement chose to use a tactic that has been proscribed by federal law for more than 30 years.
In the first, prosecutors and local law enforcement executed a search warrant on a university newsroom to recover pictures that depicted arrests, property damage, and injured police and partygoers during an annual block party. In the second, government-authorized agents in California raided the home of a popular technology blog’s editor and seized computers and servers related to coverage of an iPhone prototype.
Though the media organizations in both situations eventually prevailed, the searches resulted in weeks of legal entanglement; whereas in the past, publications were able to stop searches from occurring in the first place.
“I don’t know that we can say there’s a trend or a wave, but there may be a couple of factors at work,” said Frank LoMonte, executive director of the Student Press Law Center. “It may be that law enforcement recognizes that media organizations don’t have the resources to fight legal battles as aggressively as they’ve been able to in the past, so there’s a greater willingness to push the boundaries.”
Newsroom searches and federal law
Though a subpoena — not a search warrant — is now required by federal statute in order to obtain evidence from a newsroom, it hasn’t always been that way.
In an unfavorable 1978 Supreme Court decision in Zurcher v. Stanford Daily, the justices declined to find that subpoenas would be required in order to obtain evidence of a crime from a news media entity. Police had searched the Stanford Daily for negatives and photos from its coverage of a sit-in at Stanford University Hospital that had occurred three days earlier. The student journalists were not among those who got into an altercation with officers at the hospital, but police chose to perform a search rather than serve a subpoena. The Daily later sued and the cases ended up before the Supreme Court, which sided with the police.
“Properly administered, the preconditions for a warrant — probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness — should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices,” Justice Byron White wrote in the majority opinion. “There is no reason to believe, for example, that magistrates cannot guard against searches of the type, scope, and intrusiveness that would actually interfere with the timely publication of a newspaper.”
The court however, was divided, and dissenting Justice Potter Stewart pointed out the specific harms that the majority was overlooking, among them the disruption of the publication’s regular news functions and possible revelation of confidential sources, which could lead to a chilling effect.
“A search warrant allows police officers to ransack the files of a newspaper, reading each and every document until they have found the one named in the warrant, while a subpoena would permit the newspaper itself to produce only the specific documents requested,” Stewart wrote, noting that the unannounced execution of warrants on newsrooms would be “wholly inimical to the First Amendment” and result in “a diminishing flow of potentially important information to the public.”
In the aftermath of Zurcher, First Amendment advocates and journalists, fearing the effects Stewart predicted, rallied to encourage the passage of the Privacy Protection Act in 1980. The act made it “unlawful for a government officer or employee … to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication[.]”
There were some narrow exceptions, but for the most part the purpose, scope and intent of the law were clear.
Given its clarity, it is unclear why the searches earlier this year weren’t as easily stymied as one in Lawrence, Kansas, two years ago. University of Kansas police asked a local prosecutor and a judge to approve a search warrant for a newspaper’s online subscriber database in order to discover the identity of a commenter on the Lawrence Journal-World website. The publisher objected, dispatched its attorney to stop the search from taking place, and the media attorney called the prosecutor’s office to discuss the search warrant. The officer left without conducting the search.
“My impression is that most prosecutors are aware of the restrictions even if some don’t like it,” said Joshua Marquis, co-founder of the Media Relations Committee of the National District Attorneys Association.
Yet the searches continue
The result wasn’t quite as cut and dried when the newsroom of the student newspaper at James Madison University in Harrisonburg, Va., was searched earlier this year. Student journalists at The Breeze covered a campus block party on April 10 that resulted in more than 30 arrests, property damage and injuries to both law enforcement and attendees.
Later that week, local prosecutor Marsha Garst phoned The Breeze Editor-In-Chief Katie Thisdell to request the photographs the incident, but Thisdell refused to hand them over.
The very next day, the prosecutor’s office and police executed a search warrant and confiscated 926 photos over the students’ objections and threatened of confiscate all computers and files if they did not comply. The case took months to resolve as law enforcement and the students went back and forth about the scope of what prosecutors sought from the student newspaper. In the meantime, mainstream media stuck up for the students’ rights.
“In general, courts have been clear that officials seeking evidence in criminal cases may seek unpublished materials from news outlets only as a last resort. In this case, where dozens of video clips of the riot have already been posted on YouTube, it seems unlikely that prosecutors exhausted all avenues to gather evidence against suspects before they showed up at the Breeze’s offices,” The Washington Post editorial board wrote on April 22. “Much as the hooligans at JMU deserve to face justice, there are ways to pursue it that do not involve trampling the First Amendment and intimidating college journalists.”
The outraged students retained attorneys who eventually reached an agreement with Garst to temporarily seal the photographs and transfer them to a third party, with whom they remained until the parties settled the dispute on May 31, 2010.
The settlement terms included the release of 20 photos that contained information unavailable from any other source, the return of the rest of the photos to the newsroom, a $10,000 payment to The Breeze for legal fees and an apology from Commonwealth’s Garst for the “fear and concern that [she] caused The Breeze and its staff.” Garst’s statement also contained a promise to only use subpoenas in any future requests for evidence from a news organization.
“I don’t think there’s any question that at JMU, the prosecutor had never seen or heard of the Privacy Protection Act until the editor put a copy under her nose,” said LoMonte, who helped The Breeze secure its counsel.
The same month, government-authorized agents in California dodged the subpoena requirement when they raided the home of Gizmodo editor Jason Chen.
Gizmodo, a site owned by New York-based Gawker Media, had published articles about an upcoming Apple iPhone the previous week and members of the Rapid Enforcement Allied Computer Team, which investigates technology-related disputes or crimes, executed the warrant shortly thereafter. Law enforcement in this case said the evidence was needed to decide whether charges would be filed against the individual who sold the iPhone prototype to Chen. There was some dispute as to whether the phone had been stolen or left in a bar by an Apple employee.
Gawker executive Gaby Darbyshire wrote a letter to the county authorities asking for the immediate return of the materials seized from Chen’s home office, since it was a “de facto newsroom.” She cited the Privacy Protection Act and a similar California state law, which both require the proper issuance of a subpoena if authorities need to confiscate unpublished newsgathering materials.
The dispute lasted until July 16, 2010, when a San Mateo, Calif. Superior Court judge allowed prosecutors to withdraw the warrant the task force had used to raid Chen’s home. At press time, Gizmodo and Chen had agreed to release a small portion of documents pursuant to a properly issued subpoena.
Electronic Frontier Foundation Senior Staff Attorney Matt Zimmerman, who worked on the case, said that it appeared law enforcement either did not consider the laws prohibiting newsroom searches or failed to properly evaluate the legality of the search.
“From our standpoint, it’s a good thing that the DA’s office applied to withdraw the warrant as it was plainly illegal,” he said. “On the other hand, it’s unfortunate that the court did not get an opportunity to directly rule that the search of Chen’s house was illegal as such a ruling would have been a valuable precedent.”
Despite the recent troubles of these reporters, the higher-profile cases may help to prevent similar problems in the future. Because ignorance or misunderstandings of the law seem to have been the root of the trouble in the recent cases, their publicity could serve as a reminder of why the Privacy Protection Act was enacted in the first place.
“[I]t’s been so long since the Privacy Protection Act was passed, with relatively few high-profile uses of the law in the last 30 years, that it’s fallen out of the consciousness of the people on the front lines of law enforcement,” SPLC’s LoMonte said.