Citation[]
Privacy Protection Act of 1980 (PPA), Pub. L. No. 96-440, 94 Stat. 1879 (Oct. 13, 1980), codified at 42 U.S.C. §2000aa et seq. (full-text).
Overview[]
The Act limits law enforcement's use of a search warrant to search for or seize certain materials[1] possessed by a person for the purpose of public dissemination. The intent of this law is to protect publishers[2] from having First Amendment materials seized unless the individual is suspected of harboring illicit material.
Generally, the Act prohibits the seizure of publication materials by the use of a search warrant with some exceptions. Normally, the government must issue a subpoena.
Factors to be considered[]
In assessing the impact of PPA on an investigation, the following factors should be considered:
- Is the material covered by PPA? PPA-covered material is of two general types:
- Is the possessor of the material covered by PPA? PPA only applies to protect publishers that are innocent third parties.[5] If the suspect has commingled the publications material with the contraband, a law enforcement agent who seizes the publications material incident to the seizure of the contraband will not be liable under PPA.[6] However, a law enforcement agent who searches the actual publications material may be liable unless the search is incidental to the search for the contraband material.
Exceptions[]
PPA's prohibition on the use of a search warrant does not apply in the following circumstances:
- Materials searched for or seized are contraband, fruits, or instrumentalities of the crime.
- There is reason to believe that the immediate seizure of such materials is necessary to prevent death or serious bodily injury.
- Probable cause exists to believe that the person possessing the materials has committed or is committing a criminal offense to which the materials relate.[7]
If evidence of a crime is commingled on a computer with PPA-protected materials, issues concerning proper scope and execution of a search warrant will arise. Recent cases indicate that the courts are limiting the scope of PPA protection to people who are not suspected of committing a crime. Evidence seized in violation of PPA alone will not be suppressed.
Civil damages are the exclusive remedy for violation of PPA. PPA does not contain a provision to suppress evidence obtained in violation of the act.[8]
References[]
- ↑ These protected materials may be either "work product" (i.e., materials created by the author/publisher) or "documentary materials" (i.e., any materials that document or support the work product). For example, a person who is creating an online newsletter may possess interview notes that could be considered "documentary materials"; the text of the newsletter to be published could be considered a "work product."
- ↑ The term publisher is not limited to the traditional press and may include individuals who have an intent to publish material or have their own website.
- ↑ 42 U.S.C. §2000aa-7(b)
- ↑ 42 U.S.C. §2000aa-7(a)
- ↑ See S. Rep. No. 96-874 at p. 4 (1980).
- ↑ Guest v. Leis, 255 F.3d 325 (6th Cir. 2001) (full-text).
- ↑ This exception does not apply where the mere possession of the materials constitutes the offense except for the possession of child pornography and certain government information.
- ↑ Similar to 42 U.S.C. §1983, an officer sued in a personal capacity is entitled to a reasonable good faith defense. 42 U.S.C. §2000aa-6. In addition, the officer may only be sued in his or her individual capacity if the government has not waived sovereign immunity.