A. Newsroom searches

The Tenth Circuit has held that the Privacy Protection Act, 42 U.S.C. § 2000aa, does not provide a cause of action against municipal employees in their individual capacities. Davis v. Gracey, 111 F.3d 1472, 1482 (10th Cir. 1997).   Further, liability under the Privacy Protection Act only extends to those who direct, control, or participate in the search or seizure.  Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007) (finding no liability attached to the deputy district attorney for reviewing the warrant application).

There is no reported First Circuit decision specifically addressing this issue.

The federal Privacy Protection Act (42 U.S.C. § 2000aa), which does not appear to have been litigated at the appellate level in the Second Circuit, gives protection to journalists from overly intrusive government searches of newsroom offices. The Act divides materials into "work product" materials and "documentary" materials. Work product materials are defined as materials (other than things criminally possessed or used as a means of committing a crime, see, e.g., U.S. v. Hunter, 13 F. Supp. 2d 574, 582 (D. Vt. 1998) (Privacy Protection Act did not protect attorney publishing newsletter out of his office “because the government had [probable cause] to believe that he had committed a criminal offense”)) which are created in anticipation of communication to the public, are possessed for the purpose of communicating such materials to the public, and include the impressions, conclusions, opinions or theories of the creator. Documentary materials are defined as materials on which information is recorded, excluding things illegally possessed and property designed, intended or used to commit a crime. 42 U.S.C. § 2000aa-7(a), (b).

For work product materials, the Act makes it illegal for a federal, state or local government official, in connection with the investigation or prosecution of a criminal offense, to search for or seize such materials possessed by a person reasonably believed to intend to disseminate a public communication, such as a newspaper, book or broadcast, in or affecting interstate or foreign commerce. (For exceptions to this rule, see 42 U.S.C. § 2000aa(a)(1), (2).) For documentary materials, the Act makes it illegal for an official to search for or seize such materials possessed by a person in connection with a purpose to disseminate a public communication in or affecting interstate or foreign commerce. (For exceptions to this rule, see 42 U.S.C. § 2000aa(b)(1)-(4).)

Courts in the Third Circuit do not appear to have addressed directly the Privacy Protection Act, 42 U.S.C. § 2000aa, in a context relevant to reporters.

There have been no Fourth Circuit cases applying the federal Privacy Protection Act, 42 U.S.C. § 2000aa.  However, one case limited a subpoena seeking information from the newsroom.  In Gilbertson v. Jones, a defendant in a defamation lawsuit sought disclosure of a variety of reporter’s notes including notes of the reporter’s interview with defendant as well as related written communications the reporter had with agents or employees of the news station at issue.  No. 3:16-cv-255, 2016 WL 6518659 (E.D. Va. Sept. 22, 2016); 2016 WL 6518631 (E.D. Va. Nov. 1, 2016) (order adopting report and recommendation).  The Magistrate Judge ordered disclosure of the reporter’s notes and recordings of the interview with defendant alone but, applying the LaRouche balancing test, shielded the newsroom from the subpoena.  Id.

No reported decision of the Fifth Circuit has addressed the application of the Privacy Protection Act (42 U.S.C. § 2000aa) (“PPA”) to searches of newsrooms or seizures of cameras or film. However, one district court found a PPA claim viable when a police officer seized and destroyed a cell phone recording the plaintiff had created of the officer during a traffic incident, because the officer believed the plaintiff would disseminate or broadcast the recording. Basler v. Barron, No. H-15-2254, 2017 WL 477573, at *12 (S.D. Tex. Feb. 6, 2017).  The court held that the plaintiff was protected by the PPA even though he was not a professional journalist, noting that the statute broadly defines work product and “disregards who possesses the material and merely defines the material as being produced in ‘anticipation’ of public communication.” Id.

Moreover, two district courts have addressed the PPA in other contexts. One court found that a school instructor employed by the Department of Defense did not state a claim under the PPA where he alleged that the government had obtained his bank records, which were not allegedly intended to be disseminated publicly. Nwangoro v. Department of the Army, 952 F. Supp. 394, 398 (N.D. Tex. 1996). Another district court found that the Secret Service violated the plaintiff's rights under the PPA and awarded damages for the plaintiff's expenses and lost profits caused by the violation. Steve Jackson Games, Inc. v. United States Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993). An agent of the Secret Service had seized, pursuant to a search warrant, files from the plaintiff's computer bulletin board system, including a book the plaintiff intended to publish. The court found that the Secret Service did not initially "reasonably believe" the materials they seized violated the PPA. Id. at 440-41 & 440 n.8. However, once the plaintiff had explained to the Secret Service the nature of the seized materials and the PPA's requirements and had requested their return, the Secret Service reasonably believed the plaintiff had a purpose to communicate the material to the public. Id. at 440-41. Although the Fifth Circuit affirmed the judgment of the district court, the parties did not raise any issue regarding the district court's treatment of the PPA on appeal of the judgment. Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457 (5th Cir. 1994).

There is no statutory or case law addressing this issue.

No reported federal cases in the Seventh Circuit have discussed 42 U.S.C. 2000aa or searches of journalists' offices.

The Eighth Circuit overturned a decision for the news media over the execution of a search warrant, finding that the district court had to examine the exceptions more closely. Citicasters v. McCaskill, 89 F.3d 1350 (8th Cir. 1996).

The federal Privacy Protection Act states that it is unlawful for the government, “in connection with [an] investigation or prosecution of a criminal offense,” 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” or “documentary materials, other than work product materials, possessed by a person in connection with” the same purpose. 42 U.S.C. § 2000aa. The remedy is a civil cause of action for damages. See 42 U.S.C. § 2000aa-6(a); Morse v. Regents of Univ. of Cal., 821 F. Supp. 2d 1112, 1120-21 (N.D. Cal. 2011).

There is no Alabama statutory or reported case law addressing newsroom searches or the application of the federal Privacy Protection Act.

The federal Privacy Protection Act (42 U.S.C. 2000aa) has not been used in Alaska courts, to the knowledge of this author. It has been successfully asserted by the author on a couple occasions in telephonic negotiations to get authorities to withdraw improperly issued search warrants. In 2006, Anchorage police investigating a shooting in a public park used search warrants, in violation of 42 U.S.C. 2000aa, to obtain photos and videotape from a newspaper and television station in Anchorage. After a call from the author to the issuing magistrate and police, the search warrants were withdrawn and the documents were returned, unused, to the news organizations. In addition, after a meeting between public officials and the press, officials agreed to cover this issue in training for judges and police to avoid future violations arising from ignorance of the law, and agreed to pay attorney fees incurred by the press. See, https://www.rcfp.org/news/2006/0713-con-police.html or http://www.nppa.org/news_and_events/news/2006/07/anchorage.html. Similarly, in the 1980s, the author spoke with a magistrate that had issued a search warrant for premises of a television station to obtain tapes of a fire that was suspected of being caused by arson, while state troopers attempted to execute the warrant. After the magistrate was advised of the applicable federal law, he communicated to the troopers he was withdrawing the warrant and that they should desist from further efforts to serve it. There is no provision under state law similar to the federal Privacy Protection Act.

The authors of this outline are unaware of any instances in which the federal Privacy Protection Act, 42 U.S.C. §§ 2001aa – 2000aa-12, has been used in this state in connection with searches of newsrooms or seizures of journalistic materials. The Act, passed in 1980, makes illegal the search and seizure of items in a newsroom, except in limited circumstances. 42 U.S.C. §§ 2001aa – 2000aa-12. While it does not provide an absolute privilege from subpoenas, it indicates an effort on the part of Congress to protect the confidentiality of newsworthy information gathered for publication. Indeed, Congress enacted the law to require "law enforcement authorities to proceed by request or subpoena first in obtaining such materials," in order to "lessen greatly the threat … to the vigorous exercise of First Amendment rights." S. Rep. No. 96-874, at 1879 (1980), reprinted in U.S.C.C.A.N. 3950. The Act "recognizes . . . the importance of First Amendment values, plac[ing] a heavy burden on law enforcement officers . . . ." 1980 U.S.C.C.A.N. at 3957.

There are no reported Arkansas cases addressing the federal Privacy Protection Act, 42 U.S.C. § 2000aa (1994), in the context of a newsroom search or the seizure of film or videotapes.

California Penal Code § 1524(g) provides that “[n]o warrant shall issue for any item or items described in Section 1070 of the Evidence Code.” This statute would seem to flatly forbid the issuance of a search warrant to obtain confidential source information or unpublished information from a news organization.

Under different circumstances, a California Court of Appeal affirmed a trial court’s seizure of a roll of film taken in open court. See Marin Indep. Journal v. Mun. Court, 12 Cal. App. 4th 1712, 16 Cal. Rptr. 2d 550 (1993). California Rule of Court 1.150 prohibits photography of courtroom proceedings without a prior written order. In this case, the photographer took pictures of a suspect in open court without written permission, and the judge ordered that the film be seized. Id. at 1716. The Court of Appeal upheld the seizure, concluding that it was not a prior restraint on speech. Id. at 1718-19. The court asserted, however, that even if it was a prior restraint, it was permissible because the photographs had been obtained illegally.

In one high-profile dispute, the San Francisco Police Department requested and obtained five search warrants allowing the search of the home and other possessions of freelance journalist Brian Carmody, in connection with the investigation of an alleged leak in a murder investigation. After publicly defending its actions for two weeks, the Police Department conceded that it acted improperly. All five San Francisco courts later quashed the search warrants they had issued and ordered the affidavits requesting the search warrants unsealed, and the City later agreed to pay Carmody $369,000 to resolve his administrative complaint. No appellate court has considered the issue in the Carmody case.

In another matter, in January 2017, the Los Angeles County Sheriff’s Department executed a search warrant at the home of a television producer working for eOne Entertainment, who was involved in a documentary television series concerning Death Row Records and Marion “Suge” Knight. Deputy sheriffs seized the producer’s cell phone and password. The District Attorney’s office simultaneously subpoenaed the producer and one of her colleagues to testify before a state criminal grand jury investigating Knight. Following a lengthy emergency hearing, a Los Angeles County Superior Court judge quashed the subpoenas, and ordered the cell phone to be returned.

The federal Privacy Protection Act (42 U.S.C. 2000aa) is incorporated by reference into the Shield Law. Section 13-90-119 explicitly states that no provisions in the Shield Law will "preclude the issuance of a search warrant in compliance with the federal Privacy Protection Act of 1980." C.R.S. § 13-90-119(6). Although not specifically addressing the Privacy Protection Act, the Colorado Supreme Court has ruled that the Colorado Constitution provides important protections where the right to receive and distribute information are concerned. Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002). In Tattered Cover, the Supreme Court found that, because of the fundamental rights implicated, the police could not execute a search warrant to recover receipts from a book store except for a showing of a compelling need that outweighs the privacy interests of the book store and its customers and a sufficient connection between the information sought and the criminal investigation. Id.

General Statutes §§54-33i and j provide as follows:

• 54-33i:

For the purposes of this section and sections 54-33a and 54-33j:

(1) “Journalist” means a person engaged in the business of investigating, collecting or writing news, or of supervising such activity, with the intent of publication or presentation or for publication or presentation to the public through a news organization.

(2) “News organization” means (A) an individual, partnership, corporation or other association engaged in the business, whether or not for profit, of (i) publishing a newspaper or other periodical that reports news events and that is issued at regular intervals or has a general circulation; or (ii) providing newsreels or other motion picture news for public showing; or (iii) broadcasting news to the public by wire, radio, television or facsimile; and (B) a press association or other association of individuals, partnerships, corporations or other associations described in subparagraph (A) of this subdivision or in subdivision (1) of this section engaged in gathering news and disseminating it to its members for publication.

(3) “News” means any compilation of facts, theories, rumors or opinions concerning any subject for the purpose of informing the public.

. . .

• 54-33j:

(a)No search warrant, as provided in section 54-33a, may be issued to search any place or seize anything in the possession, custody or control of any journalist or news organization unless such warrant is issued upon probable cause that such person or organization has committed or is committing the offense related to the property named in the warrant or such property constitutes contraband or an instrumentality of a crime.

(b)Nothing in this section shall be construed as limiting the right to subpoena any such evidence if such subpoena is otherwise permitted by law.

D.C. federal courts have not applied or construed the federal Privacy Protection Act, 42 U.S.C. § 2000aa.  However, the D.C. Circuit has observed that the Privacy Protection Act “restricts only searches and seizures, not subpoenas.”  Doe v. Stephens, 851 F.2d 1457, 1464 (D.C. Cir. 1988).

Justice Department guidelines provide that in “[a]pplying for warrants to search the premises, property, communications records, or business records of members of the news media,” prosecutors must obtain the authorization of the Attorney General and receive the personal endorsement of the U.S. Attorney or Assistant Attorney General “responsible for the matter.”  28 C.F.R. § 50.10(d)(1)-(2).  In considering such a request, the Attorney General is obliged to “take into account the considerations” that should be weighed in deciding whether to authorize a subpoena or other order “to obtain from third parties the communications records or business records of a member of the news media.”  Id. § 50.10(d)(3).  When executing such a warrant, “investigators should use search protocols designed to minimize intrusion into potentially protected materials or newsgathering activities unrelated to the investigation, including but not limited to keyword searches (for electronic searches) and filter teams.”  Id. § 50.10(d)(7).

No newsroom search or seizure cases have been litigated in Delaware. Although there is no express provision under state law limiting the searches of newsrooms, the federal Privacy Protection Act would likely be invoked in the event a state agency attempted to pursue such activity.

D.C. courts have not applied or interpreted the federal Privacy Protection Act, 42 U.S.C. § 2000aa.  However, the D.C. Circuit has observed that the Privacy Protection Act “restricts only searches and seizures, not subpoenas.”  Doe v. Stephens, 851 F.2d 1457, 1464 (D.C. Cir. 1988).

The Federal Privacy Protection Act (42 U.S.C. 2000aa), which limits searches of newsrooms, has not been addressed in Florida state courts, and no similar provisions exist under state law.

The Privacy Protection Act (42 U.S.C. 2000aa) has been effective in preventing newsroom searches in Georgia.

There is no authority in Hawai'i regarding newsroom searches.

The federal Privacy Protection Act (42 U.S.C. 2000aa) has not been implicated in any reported Idaho decisions. Given the hostility of the Idaho Supreme Court to the reporter's privilege generally, and its specific endorsement of the ruling in Stanford Daily v. Zurcher, 436 U.S. 547 (1978) (the case which gave rise to the passage of the Privacy Protection Act) in the Caldero case, it is unlikely that there would be any protection against newsroom searches in Idaho but for the protections afforded under the Privacy Protection Act. There are no similar state statutes.

There is no Illinois statutory or case law addressing this issue.  However, the Illinois Code of Criminal Procedure governing the grounds for issuing a search warrant provide special protections for the news media.  Where the “things to be seized” under the warrant “are the work product of, or used in the ordinary course of business, and in the possession, custody, or control of any person known to be engaged in the gathering or dissemination of news for the print or broadcast media, no judge may issue a search warrant” unless the general requirements for issuing a search warrant are satisfied, and “there is probable cause to believe that:  (1) such person has committed or is committing a criminal offense; or (2) the things to be seized will be destroyed or removed from the State if the search warrant is not issued.”  725 ILCS 5/108-3(b).  See People v. Palacio, 240 Ill.App.3d 1078, 1098, 607 N.E.2d 1375, 1387 (1993) (reporter’s privilege and section 108-3(b) “make[] clear that the General Assembly views reporters as playing important, special roles in our society-roles that deserve special protection”).

The federal Privacy Protection Act (42 U.S.C. Section 2000aa), which drastically limits searches of newsrooms, has not been used in Indiana. There are no similar provisions under state law.

No post-Zurcher v. Stanford Daily, 436 U.S. 547, 3 Med. L. Rptr. 2377 (1978) searches have occurred in Iowa newsrooms. Iowa has no specific statutory provisions regarding searches of newsrooms. In Lambert v. Polk County, 723 F. Supp. 128, 16 Med. L. Rptr. 2414 (S.D. Iowa 1989), police officers seized a freelance videographer’s video tape of a fatal fight . The police obtained the video by representing that the tape would be returned to the home videographer within two days. Id. at 133. The U.S. District Court found it likely that the seizure was not voluntary because of this misrepresentation and therefore violated the videographer's right to due process. Id.

The Privacy Protection Act has not been applied in connection with a newsroom search in Kansas, to the author’s knowledge.

The Privacy Protection Act, 42 U.S.C. 2000aa, has been applied by Kentucky trial courts to quash newsroom search warrants. There is no Kentucky state-law equivalent of the Privacy Protection Act.

The Federal Privacy Protection Act has not been used in Louisiana to our knowledge and there are not any similar provisions under Louisiana law.

The provisions of the Privacy Protection Act (42 U.S.C. § 2000aa) have not had to be invoked in this state and have not been the subject of a decision in Maine.  Maine has no statutory counterpart to the federal act.

Maryland case law does not discuss the impact and/or use of the Federal Privacy Protection Act (the search and seizure by government officers and employees in connection with investigation or prosecution of a criminal offense) within the State. There are no similar provisions under Maryland law.

The federal Privacy Protection Act (42 U.S.C. 2000aa), which drastically limits searches of newsrooms, has not been used in reported case law in Massachusetts. There are there no similar provisions under state law.

Although there have been no appellate cases discussing this precise issue, parties have often used the Federal Privacy Protection Act as a bar to newsroom searches. 42 U.S.C. 2000aa et seq.

Parties also argue that the prosecutor’s subpoena statute exemption applies to search warrants of newsrooms. See MCL 767A.2 (explaining requirements for authorization of investigative subpoenas).

The authors are not aware of any "newsroom searches"--with or without a warrant--by Minnesota law enforcement authorities in the mode of Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (search of newsroom for photographic evidence to use against third parties). Sporadic problems have occurred with police or other law enforcement officials who, without a warrant, have simply seized photographs or materials from journalists. Some situations have been resolved quietly and quickly when the officers (or their superiors) have acknowledged that they acted improperly and have apologized to the journalists involved. Two cases have resulted in extensive litigation, as discussed below.

1. The Federal First Amendment Privacy Protection Act (42 U.S.C. § 2000aa)
2. Minneapolis Star and Tribune Co. v. United States, No. 3-87 CIV 36 (D. Minn.)

On December 22, 1986, WCCO-TV cameraman Gary Feblowitz and Star Tribune photographer Thomas Sweeney recorded a narcotics arrest at a convenience store in north Minneapolis; they shot from the store's public parking lot and the adjacent public sidewalk. FBI agents demanded that they turn over their film and videotape, threatened them with incarceration, and forcibly removed and confiscated their equipment, film, and videotape. They later explained that they were concerned that the identity of undercover agents at the scene of the arrest could be revealed through publication of the film and videotape, citing a report that one of the suspects arrested that night had allegedly hired someone to kill one of the undercover officers who was present at the scene of the arrest. In a series of unpublished rulings on motions to dismiss or for summary judgment, U.S. District Judge Donald Alsop:

ï Held that the Privacy Protection Act applied to the facts of the case, despite the defendants' claim that they had not seized the materials as part of "the investigation . . . of a criminal offense." The court held that Congress had not intended to limit the scope of the act to searches and seizures of journalists' materials to be used as evidence in criminal proceedings against third parties. (August 13, 1987)

ï Held that the statute's reference to "otherwise applicable law" (§§ 2000aa(a) and (b)) included the protections of the first and fourth amendments; therefore, the government had to show that the FBI agents who seized the material had complied with the first and fourth amendment protections afforded the journalists before the government could invoke the "life in danger" exception in the statute. (June 9, 1988)

ï Held that "warrantless seizures are allowable under the life-in-danger exception under the same circumstances that such seizures are allowable under the Fourth Amendment in general." (August 1, 1988)

ï Held that the seizure of materials from the journalists was a prior restraint in violation of the First Amendment and that "therefore, defendant cannot invoke the exceptions to the liability provision of the PPA." (August 1, 1988).

1. Berglund v. City of Maplewood, 173 F.Supp.2d 935, 950 (D. Minn. 2001), aff'd sub nom. Zick v. City of Maplewood, 50 Fed. App'x 805, 806 (8th Cir. 2002) (unpublished).

On December 28, 1999, Robert Zick and Kevin Berglund attended a "recognition event" at the Maplewood Community Center for the mayor and two city council members whose terms were ending. They wanted to record the farewell speeches for their public-access cable television program. A dispute arose regarding whether they would have to pay a $15 admission fee that was intended to cover the costs of food (that they told the person in charge they would not eat) and a farewell gift (that they considered inappropriate to pay because they were covering the event, not supporting the city officials). A city official agreed to waive the fee if Zick and Berglund agreed to certain "rules" on where and how they would videotape the event. As the official and Zick were discussing the location for videotaping, off-duty Maplewood police officers told Zick and Berglund they had to "pay or leave." One officer placed his hand on Berglund's arm to direct him outside. A physical encounter occurred that involved Berglund and four off-duty police officers, including the chief of police. Berglund, who had been videotaping all of the discussions and events, passed the camera to Zick, who continued videotaping. Berglund was arrested and charged with trespass and assault and taken away to jail. (He was later acquitted of all charges in a criminal jury trial.) Police then forcibly seized the videotape from Zick. They returned a copy of the videotape two days later, too late for Zick and Berglund to show on their next weekly cable show. In the criminal case against Berglund, the state court judge held that the police had violated the state shield law and as a sanction for that improper conduct ordered the city to return the original videotape to Berglund. Findings of Fact, Conclusions of Law and Order, State v. Berglund, No. K5-00-600125, Ramsey Cty., Minn., Dist. Ct., dated April 12, 2000. Zick and Berglund brought separate actions in federal court alleging violations of the Federal First Amendment Privacy Protection Act and the Federal Civil Rights Act. The district court granted summary judgment in favor of the defendants and against both Zick and Berglund on October 25, 2001. Berglund v. City of Maplewood, 173 F.Supp.2d 935 (D. Minn. 2001), aff'd sub nom. Zick v. City of Maplewood, 50 Fed. App'x 805, 806 (8th Cir. 2002) (unpublished). The court found that two exceptions to the statute applied under the circumstances of the case. First, because Berglund was arrested in connection with activities that he recorded on the videotape, the seizure satisfied the "criminal suspect" exception (allowing a government officer to search for and seize "work product" or "documentary materials" if "there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate"), even though the police seized the videotape from Zick (who was not arrested on any charge) rather than from Berglund. 173 F.Supp.2d at 949. Second, it held that the seizure satisfied the "destruction of evidence" exception, finding that "an objectively reasonable officer would have reason to believe that Zick, who was Berglund's companion, would erase or tamper with the videotape that provided evidence of Berglund's conduct." 173 F.Supp.2d at 949.

2. Federal Civil Rights Act (42 U.S.C. § 1983)

In Berglund v. City of Maplewood, the district court held that a warrantless seizure of materials protected by the First Amendment would violate the Fourth Amendment, and therefore support a claim for violation of the Civil Rights Act, unless "exigent circumstances" required immediate seizure to preserve evidence of a crime. 173 F.Supp.2d 935, 943 (D. Minn. 2001), aff'd sub nom. Zick v. City of Maplewood, 50 Fed. App'x 805, 806 (8th Cir. 2002) (unpublished). The court found that exigent circumstances were present in this case because "Zick was Berglund's companion and was in the position to destroy the video recording. Moreover, [police] believed that the tape could be destroyed, erased or tampered with if they did not take it from Zick." 173 F.Supp.2d at 944.

3. Minnesota Shield Law

The Minnesota Free Flow of Information Act does not provide for a damages remedy. Berglund v. City of Maplewood, 173 F.Supp.2d 935, 950 (D. Minn. 2001), aff'd sub nom. Zick v. City of Maplewood, 50 Fed. App'x 805, 806 (8th Cir. 2002) (unpublished).

There is no statutory or case law addressing this issue.

Since enactment of the federal Privacy Protection Act, 42 U.S.C. 2000aa, there have been no instances where law enforcement has attempted to search any newsroom in the state.  No similar provisions exist under state law in Missouri.

Montana has no statutory equivalent to the federal Privacy Protection Act, though it has strong privacy protections in its constitution at Article II, § 10. There has not been litigation on this precise issue.

No Nebraska opinion has addressed the federal Privacy Protection Act. A Nebraska statute, Neb. Rev. Stat. §29-813(2) (Reissue 2016) prohibits issuance of a warrant to search a newsroom or other place where the news is prepared or processed, unless probable cause is shown that a person on such premises has committed or is committing a crime.

It appears that there are no published court decisions or statutes addressing newsroom searches.

The federal Privacy Protection Act has not been used in New Hampshire, and there is no similar state statute.

42 U.SC. § 2000aa provides:

(a) Work product materials. Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, 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, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if—

(1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate:  Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein (but such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of title 18, United States Code, or section 224, 225, or 227 of the Atomic Energy Act of 1954 (42 U.S.C. 2274, 2275, 2277), or section 4 of the Subversive Activities Control Act of 1950 (50 U.S.C. 783), or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, 2252, or 2252A of title 18, United States Code); or

(2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being.

(b) Other documents. Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize documentary materials, other than work product materials, possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials,

if—

(1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein (but such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of title 18, United States Code, or section 224, 225, or 227 of the Atomic Energy Act of 1954 (42 U.S.C. 2274, 2275, 2277), or section 4 of the Subversive Activities Control Act of 1950 (50 U.S.C. 783), or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, 2252, or 2252A of title 18, United States Code);

(2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being;

(3) there is reason to believe that the giving of notice pursuant to a subpena duces tecum would result in the destruction, alteration, or concealment of such materials; or

(4) such materials have not been produced in response to a court order directing compliance with a subpena duces tecum, and—

(A) all appellate remedies have been exhausted; or

(B) there is reason to believe that the delay in an investigation or trial occasioned by further proceedings relating to the subpoena would threaten the interests of justice.

(c) Objections to court ordered subpoenas; affidavits. In the event a search warrant is sought pursuant to paragraph (4)(B) of subsection (b), the person possessing the materials shall be afforded adequate opportunity to submit an affidavit setting forth the basis for any contention that the materials sought are not subject to seizure.

N.J.S.A. 2A:84A-21.9 provides:

News media person or entity; freedom from searches and seizures of documentary materials; exceptions

Any person, corporation, partnership, proprietorship or other entity engaged on, engaged in, connected with, or otherwise employed in gathering, procuring, transmitting, compiling, editing, publishing, or disseminating news for the public, or on whose behalf news is so gathered, procured, transmitted, compiled, edited, published or disseminated shall be free from searches and seizures, by State, county and local law enforcement officers with respect to any documentary materials obtained in the course of pursuing the aforesaid activities whether or not such material has been or will be disseminated or published.

This section shall not restrict or impair the ability of any law enforcement officer, pursuant to otherwise applicable law, to search for or seize such materials, if there is probable cause to believe that:

1. The person, corporation, partnership, proprietorship or other entity possessing the materials has committed or is committing the criminal offense for which the materials are sought; or
2. The immediate seizure of the materials is necessary to prevent the death of or serious bodily injury to a human being; or
3. The giving of notice pursuant to a subpoena duces tecum would result in the destruction, alteration or deliberate concealment of the documentary materials other than work product; or
4. The documentary materials, other than work product, have not been produced in response to a court order directing compliance with a subpoena duces tecum, and

(1) All appellate remedies have been exhausted by the party seeking to quash the subpoena duces tecum; or

(2) There is a probability that the delay in an investigation or trial occasioned by further proceedings relating to the subpoena would threaten the interests of justice. In the event a search warrant is sought pursuant to this subparagraph, the person, corporation, partnership, proprietorship or other entity possessing the materials shall be afforded adequate opportunity to submit an affidavit to the court setting forth the basis for any contention that the materials sought are not subject to seizure.

No New Mexico law specifically addresses this issue.

There are no New York cases applying the federal Privacy Protection Act of 1980, 42 U.S.C. §§ 2000aa-2000aa-12, to journalists in connection with newsroom searches, nor are there any similar provisions under state law.

There are no reported cases in which the federal Privacy Protection Act, 42 U.S.C. § 2000-AA, which drastically limits searches of newsrooms, has been construed in North Carolina. There are no similar provisions under state law.

The federal Privacy Protection Act (42 U.S.C. 2000aa) has not been used to limit searches of newsrooms in North Dakota. There are no similar provisions under state law to limit newsroom searches.

S.H.A.R.K. v. Metro Parks Serving Summit County, 499 F.3d 553 (6th Cir. 2007) (a park district that removed a nonprofit animal rights organization’s cameras from a park did not violate the nonprofit organization’s First Amendment rights under the Privacy Protection Act, 42 U.S.C.A. § 2000aa).

United States  v. Any & All Radio Station Transmission Equipment, 218 F.3d 543 (6th Cir. 2000) (government brought civil in rem forfeiture action against radio transmission equipment used by individual for unlicensed radio broadcasting; held, forfeiture of radio transmission equipment in these circumstances did not violate individual’s rights under Privacy Protection Act).

We are not aware of any newsroom search conducted in Oklahoma.  Oklahoma does not have any statute similar to the federal Privacy Protection Act, 42 U.S.C. § 2000aa.

No case law addresses newsroom searches or the applicability of the federal Privacy Protection Act or a similar provision in the state statutory privilege. ORS 44.520(2) provides:

No papers, effects or work premises of a person connected with, employed by or engaged in any medium of communication to the public shall be subject to a search by a legislative, executive or judicial officer or body, or any other authority having power to compel the production of evidence, by search warrant or otherwise. The provisions of this subsection, however, shall not apply where probable cause exists to believe that the person has committed, is committing or is about to commit a crime.

There is no Pennsylvania law addressing the impact of the federal Privacy Protection Act (42 U.S.C. § 2000aa) on newsroom searches or other seizures from the media.

In In re the Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d 505 (Pa. 2006), a newspaper company’s computer workstations and hard drives were subpoenaed by the Attorney General’s Office in the course of a statewide grand jury investigation. Denying the paper’s motion to quash, the trial court permitted the Attorney General to search the hard drives’ internet history and cached content, and further imposed a sanction of $1,000 per day when the paper refused to comply with the trial court’s order. On appeal, the newspaper argued, among other things, that (1) the subpoena violated the First Amendment Privacy Protection Act, 42 U.S.C. §§ 2000aa-2000aa-12; (2) the subpoena sought confidential source information on the hard drives, which was absolutely protected from disclosure under the Pennsylvania Shield Law; and (3) the subpoena violated the First Amendment reporter’s privilege. Without specifically addressing any of these arguments, the Pennsylvania Supreme Court reversed the trial court’s order based on “a careful balancing of the respective interests involved.” Id. at 514. Noting the “potential chilling effect” of the trial court’s order, the court held that it was overbroad, that “measures were available to obtain the information subject to the investigation short of outright surrender of the hard drives to the Commonwealth,” and that “this particular method of disclosure is unduly intrusive.” Id. at 513-14. As the court noted, the Attorney General’s office had, in effect, demanded that the “‘filing cabinets’ of the newspapers [be] transferred to the custody and control of the executive branch of the government.” Id. at 514. The court said that “[w]e expressly do not foreclose . . . the utilization by the supervising judge of a neutral, court-appointed expert to accomplish the forensic analysis and report specific, relevant results.” Id. at 514 n.5. It further noted, ignoring the provisions of the Federal Privacy Protection Act, that “any direct and compelled transfer to the executive branch of general-use media computer hardware should be pursuant to a due and proper warrant, issued upon probable cause.” Id. at 514.

There is no statutory or case law addressing this issue.

There have been no newsrooms searches in South Carolina. There have been cases where photojournalists have been arrested at the scene of accidents, but the prosecutions have been dismissed. In one case where a photographer had his camera confiscated a civil action under the Civil Rights Act resulted in a settlement with the law enforcement agencies making payments to the photographer and his newspaper.

There are no special state statutes regarding newsroom searches. On the other hand, the author is not aware of any newsroom searches in the state since the enactment of the federal Privacy Protection Act.

There is no statutory or case law on the topic of newsroom searches.

Article 18 of the Texas Code of Criminal Procedure Texas provides statutory protection for newsrooms from search warrants. In particular, Article 18 provides:

A search warrant may not be issued … [for items] in an office of a newspaper, news magazine, television station, or radio station, and in no event may property or items … be legally seized in any search pursuant to a search warrant of an office of a newspaper, news magazine, television station, or radio station.

Tex. Code Crim. Proc. art. 18.01(e). Pre-shield law, this provision was cited to as support for a reporter’s privilege.

There is no statutory or case law addressing this issue.

Vermont has no reported cases involving newsroom searches.

There are no reported cases in Virginia addressing the federal Privacy Protection Act. Virginia has no act similar to the federal Privacy Protection Act. In several unreported cases, circuit courts have quashed search warrants upon motions filed by the media. Experience suggests that neither prosecutors, magistrates, or judges are familiar with the Act. It is essential to get the issue to a court as soon as possible.

Washington's case law has not yet squarely addressed the issue of newsroom searches, or how the federal Privacy Protection Act or a similar state law apply. The state statute provides that "if the evidence is sought to be secured from any radio or television station or from any regularly published newspaper, magazine or wire service, or from any employee of such station, wire service or publication, the evidence shall be secured only through a subpoena duces tecum unless: (a) There is probable cause to believe that the person or persons in possession of the evidence may be involved in the crime under investigation; or (b) there is probable cause to believe that the evidence sought to be seized will be destroyed or hidden if subpoena duces tecum procedures are followed." Rev. Code Wash. s. 10.79.015(3).

The procedure for obtaining any such search warrant is governed by criminal court rule CrR 2.3(f).

At present, the federal Privacy Protection Act (42 U.S.C. 2000aa) has not been used in West Virginia. There are no similar provisions under West Virginia state law.

There is no authority in Wisconsin that addresses this issue.

There have been no known searches of newsrooms in Wyoming related to newsgathering. Wyoming has no provisions similar to those in the federal Privacy Protection Act.