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Privacy Protection Act of 1980

The Privacy Protection Act of 1980 (PPA) protects journalists from being required to turn over to law enforcement any work product and documentary materials – including sources – before dissemination to the public. Often, it’s journalists working on stories that are highly controversial or about criminal activity that need the protection of the PPA the most. The Act preserves journalistic freedom to publish information under the First Amendment, without government intrusion.

Why do we need the PPA of 1980?

The Act represents Congress’ response to Zurcher v. Stanford Daily (1978). In this case, the police conducted a warranted search of the Stanford Daily’s newsroom, looking for photos of a demonstration at which police officers were injured. Daily staff attended and photographed the violent demonstration and ran a story with the photos. The police intended to obtain unpublished photos which investigators could then use to identify and prosecute demonstrators. Their search did not uncover new photos of the event, other than those already published.

A federal district court found the search was unlawful and dismissed the police’s argument that the First Amendment has no effect on the Fourth Amendment. The Court of Appeals affirmed per curiam the District Court’s finding that the search was illegal. However, the Supreme Court of the US held that neither the First nor Fourth Amendment prohibited this search.

Two years after the Court ruled in Zurcher, Congress passed the federal Privacy Protection Act (1980) to overrule Zurcher and recognize the need of journalists to gather and disseminate the news without fear of government interference. With a few exceptions, the PPA forbids all levels of law enforcement from searching for and seizing journalists’ work product and documentary materials.

What does the PPA do?

Essentially, the PPA prohibits government officials from searching or seizing the writings and documents of people “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.” Such materials can be seized if there is probable cause to believe the publisher is involved in the criminal offence.

Basically, the PPA prevents investigators from searching newsrooms to uncover information or sources that a news organization has assembled. It forces law enforcement to use subpoenas or voluntary cooperation to obtain evidence from those engaged in activities protected by the First Amendment.

The PPA defines “work product” materials as materials that are “prepared, produced, authored, or created” for the purpose of communicating such materials to the public. This definition is also extended to a reporter’s “mental impressions, conclusions, opinions or theories” that concern such material. As long as a reporter intends to disseminate information in his/her possession to the general public, any form of a reporter’s “work product” should be protected from search and seizure.

The PPA defines “documentary materials” quite broadly as “materials upon which information is recorded.” This includes things like photographs, motion pictures, audiotapes, and film negatives. Computer disks are also considered documentary materials, along with other “mechanically, magnetically or electronically recorded tape, card or disk.”

Exceptions to the PPA

Searches are permitted when the person who has the information is suspected of committing the criminal offence or “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.”

Searches of documentary materials are permitted when the mere notice of a “subpoena [for documents] would result in the destruction, alteration, or concealment of such materials,” or when, after no response to a subpoena, the government representative has exhausted “all appellant remedies” or justice would be threatened by further delay.

Searches by government officials on both state and federal levels are covered under the PPA. A number of states have also reiterated or strengthened protection against these searches under state law. These states are: California, Connecticut, Illinois, Nebraska, New Jersey, Oregon, Texas, Washington and Wisconsin.

Summary

This article takes a look at the Privacy Protection Act of 1980 (PPA), which covers searches and seizures by government officers and employees in connection with investigation or prosecution of criminal offenses. Basically, the PPA prevents investigators from searching newsrooms to uncover information or sources that a news organization has assembled.

CIPP Exam Preparation

In preparation for the Certified Information Privacy Professional/United States (CIPP/US) exam,  a privacy professional should be comfortable with topics related to this post, including:

  • Privacy Protection Act of 1980 (III.C.a.i.)
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