DOCUMENTARY MATERIALS PRIVACY PROTECTION ACT OF 1980

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000300040018-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 25
• Document Creation Date: December 20, 2016
• Document Release Date: May 23, 2007
• Sequence Number: 18
• Publication Date: May 20, 1980
• Content Type: OPEN SOURCE

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9GTA CONGRESS t HOUSE OF REPRESENTATIVES J REroRT
2d Session j j No. 96-1064
DOCUMENTARY MATERIALS PRIVACY PROTECTION
ACT OF 1980
MAY 30, 1980.-Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. KASTENMEIER, from the Committee on the Judiciary,
submitted the following
REPORT
together with
ADDITIONAL, DIFFERING, AND SUPPLEMENTAL
VIEWS
[To accompany H.R. 3486]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 3486) to limit governmental search and seizure of materials
possessed by persons involved in first amendment activities, to pro-
vide for a remedy for persons aggrieved by violations of the provisions
of this Act, and for other purposes, having considered the same, report
favorably thereon with amendments and recommend that the bill as
amended do pass.
The amendments (stated in terms of page and line numbers of the
introduced bill) are as follows :
On the first page, line 3, strike out "First Amendment" aid insert
in lieu thereof "Documentary Materials".
On the first page, line 4, strike out "1979" and insert in lieu thereof
"1980".
On page 5, after line 5, insert the following new section and renum-
ber the subsequent sections accordingly :
SEc. 3. Notwithstanding any other law, it shall be unlawful
for an officer or employee of the United States, in connection
with the investigation or prosecution of a criminal offense,
to search for or seize documentary materials possessed by a
person, unless-
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(a) there is probable cause to believe that the person
possessing the materials has committed or is committing
the criminal offense for which the materials are sought;
or
(b) there is reason to believe that the immediate seiz-
ure of the materials is necessary to prevent the death of or
serious bodily injury to a human being; or
(c) 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 the materials;
or
(d) the materials have not been produced in response
to a court order directing compliance with a subpena
duces tecum, and
(1) all appellate remedies have been exhausted ;
or
(2) there is reason to believe that the delay in an
investigation or trial occasioned by further pro-
ceedings relating to the subpena would threaten the
interests of justice.
In the event a search warrant is sought pursuant to this sub-
paragraph, 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.
On page 7, line 20, change the period to a comma and add the fol-
lowing : "but does not mean contraband, the fruits of a crime, or
things otherwise criminally possessed, or property designed or in-
tended for use or which is or has been used as the means of commit-
ting a criminal offense.".
On page 8, lines 1 and 2, strike out "instrumentalities of a crime"
and insert in lieu thereof the following : "things otherwise criminally
possessed, or property designed or intended for use or which is or
has been used as the means of committing a criminal offense".
On page 5, strike the language beginning on line 15 through line
14 on page '7, and insert the following in lieu thereof :
SEC. 4. For violations of this Act by an officer or employee
of the United States, there shall be a cause of action against
the United States as provided by section 1346(b) and chapter
171 of title 28, United States Code. Remedies against the
United States provided by this section shall be the exclu-
sive remedy or sanction, including the Exclusionary Rule.
Amend the title so as to read : "A bill to limit governmental search
and seizure of documentary materials possessed by persons, to provide
a remedy for persons aggrieved by violations of the provisions of
this Act, and for other purposes.".
STATEMENT
Periodically, the Congress is called upon to consider issues which
remind us of our special link to the revolutionary forefathers who
preceded us.
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This occurs when we exercise our duty to protect, through legis-
lation, the basic values of the Constitution and Bill of Rights. Mat-
ters of constitutional interpretation have been a concern of the House
of Representatives since, the first Congress, in 1789. Sometimes a long-
standing principle of constitutional jurisprudence is thrown into
doubt by a decision of the Supreme Court which, while it may answer
a narrow question based on specific facts, leaves government officials
and members of the public in doubt as to how to interpret the law.
When this occurs it is often best for Congress to step in to fill the
void, rather than to await the results of many years of potential
litigation which will again redefine the principle. This is the case
with respect to the Documentary Materials Privacy Protection Act
of 1980-legislation to redefine a portion of the law of search and
seizure in response to the Supreme Court's decision in Zurcher v.
Stanford Daily, 436 U. S. 547 (1978).
Prior to the Stanford Daily case, the long established interpreta-
tion of the Fourth Amendment had held that a search warrant was
considered to meet the constitutional ban on general searches only if
the evidence sought constituted contraband, fruits or instrumental-
ities of a crime. This rule was modified in 1967 in the Warden v. Hay-
den, 387 U.S. 294 (1967), case to permit searches for mere evidence,
but the facts of that case involved evidence obtained incidental to an
arrest.
The specific facts of the Stanford Daily case involved a warrant,
issued in April 1971 to search the offices of a university newspaper,
the Stanford Daily. The purpose of the warrant was to locate and
seize films and pictures which had been made by the newspaper's
reporters while covering a campus demonstration the preceding day.
At no time was it alleged that staff members of the newspaper were
themselves suspected of criminal activity. Pursuant to the warrant,
Palo Alto police officers searched the newsroom of the newspaper,
examining many of its files, but they found no new evidence relating
to events during the campus demonstration.
Soon after the search the Stanford Daily and members of its staff
brought a civil action in United States District Court seeking declara-
tory and injunctive relief against the District Attorney, the Chief
of Police and officers who conducted the search.
The Court denied the injunction but granted declaratory relief,
holding that the Fourth and Fourteenth amendments forbid the issu-
ance of a warrant to search for materials in possession of an innocent
third party unless there is probable cause to believe that a subpoena
duces tecum would be impracticable. Further, the Court noted that,
where the object of the search is a newspaper, the First Amendment
restrains the government's power to search even further.
The Ninth Circuit Court of Appeals upheld the District Court de-
cision, adopting its opinion as its own. In so holding the Ninth Circuit
opinion followed generally accepted Fourth Amendment law.
However, on further appeal the Supreme Court reversed the Ninth
Circuit, and in so doing, swept away 200 years of jurisprudence
greatly limiting searches directed against innocent third parties. The
opinion of the Court, delivered by Mr. Justice White, set forth a new
theory governing third party searches-identifying the standard to be
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applied in issuing such warrants as one of "reasonableness." Further,
while recognizing that any reasonableness requirement must be estab-
lished with "scrupulous exactitude," where a newspaper was involved,
the Court's opinion did not conclude that the First Amendment placed
any additional restraints on such searches.
The public and Congressional response to the Supreme Court's de-
cision was immediate. Newspaper editorials appeared all over the
country condemning the Court's decision. And in Congress numerous
members, of every ideological and political stripe, introduced remedial
legislation. Meanwhile, the President ordered the Attorney General
to study the issue and make a legislative recommendation to him. After
consultation with constitutional scholars, civil libertarians, law en-
forcement authorities, and Cabinet officers, the President recommended
H.R. 3486.
Subsequently, the subcommittee on Courts, Civil Liberties and the
Administration of Justice of the Committee on the Judiciary held five
days of hearings on the issue. As introduced, the bill protected third
parties from arbitrary searches only where First Amendment inter-
ests were involved. However, with the exception of the Department of
Justice, not a single witness in favor of the legislation testified that the
protections of the bill should be limited to the press alone. In fact, the
representatives of media organizations were among the strongest pro-
ponents of expanding the legislation to protect all innocent third
parties from arbitrary search and seizure. A great deal of apprehen-
sion was expressed about singling out the press for special treatment.
As a result, when the subcommittee met for markup it was generally
agreed that the legislation should be extended to apply to all innocent
third parties. However, because of the constitutional and policy im-
plications of restricting the police powers of state and local authorities,
the subcommittee decided to limit the applicability of the broad third
party provisions of the bill to searches by federal officials only. Of
course, the Committee would hope that state legislatures would follow
suit, and indeed eight states have already enacted similar legislation.
With respect to searches directed against persons preparing materials
for broadcast or publication, the features of the Administration bill
were retained-these apply to state and local as well as federal officials.
The justification for the broader coverage when journalistic activity
is involved is the historic obligation of the federal government to pro-
tect the free speech values of the First Amendment..
It is important to emphasize what this bill does and does not do.
It does not prohibit lawful searches of third parties. It simply requires
the use of a subpoena first to obtain documentary materials unless any
one of five exceptions to the rule apply. First, if there is probable cause
to believe that the person in possession of the materials has committed
the offense then a normal search warrant could be used. Second, if there
is reason to believe that the immediate seizure of the materials is neces-
sary to prevent death or bodily injury then a search warrant could be
ns,-d. Third, if there is reason to believe that the advance notice given
with the subpoena would result in the destruction or concealment of
the materials then a normal search warrant could be used. Fourth, if
the subpoena process has been tried and the materials have not been
produced and further delay would not be in the interests of justice then
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a search warrant could be used. Fifth, it is important to note that
contraband and fruits or instrumentalities of a crime are not protected
in anyway. Only in the case where First Amendment as well as Fourth
Amendment values are at stake is the restriction on a search taken fur-
ther than the simple requirement of a subpoena-first where feasible.
In the case of reporters and others preparing materials for publica-
tion, searches for actual "work product," that is the personal notes and
papers of the writer, are limited to situations in which there is prob-
able cause to believe that the person searched has actually committed
an offense for which the materials involved would constitute evidence.
H.R. 3486 is a reasonable bill. It consists largely of language drafted
by law enforcement officials themselves. It enjoys the support of Mem-
bers of all political persuasions, as shown by the fact that it was re-
ported by a vote of 6 to 0 from the subcommittee and on a voice vote
by the committee. In its amended form it is endorsed by groups such
as the American Society of Newspaper Editors, the, Radio Television
News Directors Association, the American Newspaper Publishers As-
sociation, the American Medical Association, American Psychiatric
Association, the American Civil Liberties Union and others.
Section 1. Title ?
H.R. 3486 is entitled the "Documentary Materials Privacy Protec-
tion Act of 1980."
Section 2. Unlawful acts
Section 2 provides broad protections against searches for materials
which are obtained or prepared in connection with First Amendment
activities. This section describes the protected materials as those
which are "possessed by a person in connection with a purpose to dis-
seminate to the public a newspaper, book, broadcast, or other similar
form of public communication". Thus, the protection provided by
this section extends not only to the institutional press, but to aca-
demicians, authors, filmmakers, and free lance writers and photo-
graphers. While the Justice Department considered the option of a
press-only bill, this format was rejected partially because of the ex-
treme difficulties of arriving at a workable definition of the press, but
more importantly because the First Amendment pursuits of others
who are not members of the press establishment are equally as impor-
tant and equally as susceptible to the chilling effect of governmental
searches as are those of members of the news media.
Of course, not all documentary materials held by a reporter or au-
thor bear a relation to his First Amendment activities. Obviously
excluded from the scope of the statute would be, among others, the
business records of newspapers or authors or documents indicating
ownership of property. This legislation protects only those materials
which are held "in connection with a purpose to disseminate ... a
form of public communication". This phrase, however, is intended
to have a broad meaning. It reaches not only those materials which
have been or are intended to be published or which contain informa-
tion which has or will be incorporated in a form of public communi-
cation, but also those materials which were gathered and prepared in
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anticipation of publication although that effort was later abandoned.
Thus, a reporter's notes and drafts of an article which his editor later
determines is unsuitable for publication would continue to be pro-
tected, as would an author's background research notes which are
never incorporated into the final published product.
Materials which are held for purposes other than the dissemination
of a form of public communication are not protected from search.
Thus notes held by a corporate officer which were made in preparing a
confidential memo that is later made public in an expose of corporate
fraud would not be protected since the corporate officer did not intend
that the contents of the report be published. Similarly, business records
or reports which are required to be filed with the government, and
which as a result are available for public examination, would not come
within the scope of the provisions of this legislation because they were
prepared for the purpose of meeting the reporting requirements, not
for the purpose of communicating with the public. Although public
access to such documents may be achieved, for example, through a
request under the Freedom of Information Act, this does not trans-
form those documents into a form of communication intended for the
public.
Determining what constitutes a form of public communication was
one of the more difficult problems which arose in developing this legis-
lation. Obviously radio and television broadcasts, and most news-
papers, magazines, and books are the clearest examples of forms of
public communication. The internal memoranda of a corporation or its
communications with its employees, on the other hand, would not be
forms of public communication.
The fact that a small town newspaper or an esoteric magazine has a
small circulation does not mean that it is not a form of public com-
munication. The Committee intends that in borderline cases the ap-
propriate test for ascertaining whether the communication in question
is public or not is whether it would be available to persons in the gen-
eral public upon simple request. Thus, a professional journal or a union
newspaper which met this test would qualify as a form of public com-
munication, while a book that was privately published for distribu-
tion only to the friends and relatives of the author would not. Other
forms of public communication might include political campaign ma-
terials or a press conference.
This section provides comprehensive protections against searches
by federal, state, and local officials in connection with the investiga-
tion or prosecution of any criminal offense. By covering law enforce-
ment-related searches at all governmental levels, the bill would reach
all of the previous situations in which searches of the media have been
conducted.
Searches by private citizens are outside the scope of this legislation,
just as they are outside the strictures of the Fourth Amendment. In
addition, an assortment of noncriminal searches are not addressed in
this bill. Unaffected by this legislation would be searches and seizures
which arise out of civil matters such as the seizure of assets to satisfy
the payment of a debt or -taxes owed to a government unit and routine
inspections by government agencies such as examinations of records
of regulated businesses or authorized monitoring of the purity of food
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and drugs. These types of searches are unlikely to involve the kinds of
documentary materials protected by the bill.
Searches for materials which fall within the definition of work prod-
uct are prohibited by this legislation with only two limited exceptions.
The first of these two exceptions found at section 2 (a) (1) allows a
search for work product materials if there is probable cause to believe
that the person possessing the materials has committed or is com-
mitting the crime for which the materials are sought. While this pro-
vision is cast in the form of an exception, it really codifies a core
principle of this section, which is to protect from search only those
persons involved in First Amendment activities who are themselves
not implicated in the crime under investigation, and not to shield those
who participate in crime.
The suspect exception has been carefully formulated to insure that
it does not provide a means for circumventing the no-search rule. The
standard of proof which must be met by officers seeking a search war-
rant under this exception is the same as that which would be required
to obtain a warrant for the arrest of the person possessing the mate-
rials. A mere suspicion or reason to believe that the possessor is impli-
cated in the crime is not a sufficient basis for invoking this exception.
Proof of the complicity of the possessor of materials is not presently a
prerequisite to obtaining a search warrant.
One further problem which arose in the Committee's consideration
of the suspect exception was the possibility that a reporter who had
received, for example, a stolen corporate report which discussed a de-
fective product, knowing the report to be stolen, might be guilty of a
crime of receipt or possession of stolen property and thus liable to
search and seizure of the report under the suspect exception. The Com-
mittee believed that it would unduly broaden the suspect exception to
use the reporter's crime of simple "possession" or "receipt" of the ma-
terials (or the similar secondary crimes of "withholding" or "com-
municating" the materials) as a vehicle for invoking the exception
when the reporter himself had not participated in the commission of
the crimes through which the materials were obtained. Thus the bill
makes clear that crime of receipt or possession of materials generally
may not be invoked to trigger the suspect exception.
The suspect exception is retained, however, in cases where the re-
ceipt, possession, or communication of materials constitutes an offense
under the existing language espionage laws or related statutes con-
cerning restricted data. Because the gravity of the offenses involved,
the legal authority to search is retained where there is probable cause
to believe that a violation of these federal laws has been committed.
By relying on the present laws in this area rather than attempting to
devise a new formulation, we have sought to avoid unnecessarily bur-
dening the First Amendment search protection proposal with complex
and difficult espionage issues. It is important to remember here that
these offenses involve exclusively federal matters and that there is no
past history of federal searches of the media based on these statutes or
any other federal laws. These laws are :
18 U.S.C. 793 Gathering, transmitting or losing defense informa-
tion.
18 U.S.C. 794 Gathering or delivering defense information to aid
a foreign government.
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18 U.S.C. 797 Publication and sale of photographs of defense in-_
stallations.
18 U.S.C. 798 Disclosure of classified information by a government
employee.
42 U.S.C. 2274 Communication of Atomic Energy data to aid a for-
eign government.
42 U.S.C. 2275 Receipt of restricted Atomic Energy. data.
42 U.S.C. 2277 Disclosure of restricted Atomic Energy. data by an
employee of United States.
50 U.S.C. 783 Communication of classified information by govern-
ment officer or employee.
The Committee recognizes that there is a legal controversy over the
scope of one of these statutes, 18 U.S.C. 793. Some judicial opinions
and some commentators on the law have suggested that this statute
could apply where there is not intent to injure the United States or
give advantage to a foreign power. Other opinions suggest that the
statute, like all other espionage laws, requires an intent to injure the
United States. Obviously, the Committee does not attempt to settle this
controversy in this bill. However, to the extent that H.R. 3486 provides
a suspect exception related to the national security statutes which are
stated, it is the intent of.the Committee that with regard to 18 U.S.C.
793 the suspect exception to the ban on searches would. apply only if
there was an allegation of an intent to injure the United States or give
advantage. to a foreign power. For the purposes of, this Act the govern-
ment shall recognize the higher standard, the requirement of intent,
before utilizing the suspect exception for searches for materials sought
under 18 U.S.C. 793.
The second circumstance in which a search for work product mate-
rials is permitted is that in which there is "reason to believe" that the
immediate seizure of the materials is necessary to prevent the death
of or serious bodily injury to a human being. In these instances,
the. preservation of human life must be the government's paramount
concern:,
The Committee believes that when human life is in peril, requiring
that the proof of this danger meet the more stringent standard of
probable cause is unjustifiable. These are exigent situations which do
not allow extensive investigation prior to the seizure of materials
that are reasonably believed to contain information that may relieve
the peril by indicating the location of hostages or the identity of the
criminals who, threaten human life. Therefore, the "reason to believe"
standard, which is higher than mere suspicion but which is consider-
.ably less demanding than "probable cause," is to be employed in in-
vokina this'life-in-danger exception.
Unless. one of these two exceptions applies, law enforcement officers
may not conduct a search for work product materials which are being
held in connection with the dissemination of a form of public com-
munication. Instead, these materials must be sought through the use
of an informal request or a subpoena duces tecum. In the face of 'a re-
fusal to comply with a subpoena, the sanction of contempt may be im-
posed by the court. But even if the penalties of civil or "criminal con
tempt do not result in production of the materials, a search for these
work product materials is nonetheless prohibited.
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Under section 2 searches for non-work product documentary mate-
rials may be conducted in a broader range of circumstances than may
searches for work product. In the case of these materials, the bill pro-
vides four exceptions to the general prohibition against search. The
first two of these are identical to the suspect and life-in-danger excep-
tions which apply to work product.
In addition, a search may be permitted (if otherwise lawful) under
a third exception if there is reason to believe that the giving of notice
pursuant. to a subpoena duces tecum would result in the destruction,
alternation or concealment of the materials being sought. Where non-
work product materials are involved, the need to obtain and preserve
evidence necessary to. the successful investigation and, prosecution of
crime outweighs the need to avoid the disruptive effect of government
searches where there is a demonstrated likelihood of destruction or
concealment. This third exception might come into play, for example,
where a reporter had in the past taken steps to obstruct an investiga-
tion or had announced that he would destroy the materials rather than
turn them over to the police. In some instances, the fact of an extremely
close, sympathetic relationship between the possessor of the materials
and the suspect, or of a relationship in which the possessor was clearly
dominated by the suspect, might suffice as a 'basis for invoking this
exception. Similarly, a showing.that the suspect had free access to the
materials could constitute grounds for obtaining a warrant under this
exception.
- The fourth and final exception under which a search for non-work
product may be conducted is that where non-compliance with a sub-
poena duces tecum, after a trial court has ordered production of the
documents, threatens the interests of justice or where compliance is not
forthcoming after all appeals have been exhausted. It is important to
bear in mind that in no case will a search be permissible under this
exception until such time as a trial court order directing compliance
with the subpoena has failed to. produce the materials sought. Even
then, the possessor of the materials will be able to exhaust his'appellate
remedies before a search warrant may be obtained unless the govern-
ment establishes that there is reason to believe that the delay in an
investigation or trial occasioned by further proceedings concerning
the subpoena would threaten the interests of justice. In the event that
a search warrant is sought prior to the exhaustion of appellate reme-
dies under this exception, the possessor of the materials must be liven
an adequate opportunity to submit an affidavit setting out the basis for
any contention that the materials sought are not subject to seizure.
Such contentions might include an assertion that there is not sufficient
evidence to establish probable cause, or that the materials are in fact
work product and thus not obtainable by search and seizure.
There are a number of situations in which the government might be
successful in demonstrating that the delay attendant in awaiting final
resolution of the appeal process would be likely to threaten 'the in-
terests of justice. The most clearcut examples in which a search war-
rant might be obtained under this final exception prior to the exhaus-
tion of appellate remedies would be difficulties in meeting the time
constraints imposed by statutes of limitation, the Speedy Trial Act,
or the expiration of grand juries. Other examples are situations in
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which the success of an investigation or prosecution is. likely to be
jeopardized by the interruption occasioned by a lengthy appeal. Often
the effectiveness of the criminal justice system hinges on swift action.
Awaiting resolution of an appeal that may take months or even years
may be intolerable from a law enforcement standpoint, e.g., in in-
vestigating such crimes as highly mobile drug trafficking or ongoing
crimes which endanger the health and safety of the .public, or where
the ability to obtain a conviction through eyewitness identification di-
minishes rapidly with the passage of time.
Section 3. Searches of innocent third parties
This section provides the same protection against warrant searches
afforded under the "other-than-work-product" provisions of Sec-
tion 2 to documentary materials in the possession of persons who may
not be involved in First Amendment activities, but who deserve sim-
ilar protection of their privacy rights. This section would apply to
documentary material possessed by lawyers, psychiatrists, medical
doctors, clergy and all other persons, unless any one of the 4 ex-
ceptions to this "subpena first rule" applied.
The exceptions found in Section 3 are identical to the exceptions
found in Section 2(b) which are analyzed above.
Section 4. Inapplicability of this act to searches and Seizures conducted
to enforce the customs laws of the United States
While routine border searches for the purpose of facilitating the
collection of duties and taxes imposed on property imported into the
United States and preventing the introduction of contraband into the
United States would not, in the Committee's view, constitute searches
conducted "in connection with the. investigation or prosecution' of
crime", and as such would be outside the scope of this legislation, it
seemed appropriate in this instance to clarify that these searches at the
borders and international points of entry are not subject to the lim-
itations of the bill. Since members of the press and authors frequently
travel internationally, the Committee was concerned that they might
misunderstand the application of this legislation and protest routine
searches of their luggage and other property they were bringing into
the United States. Therefore, routine border searches which are neces-
sary to the enforcement of our customs laws are specifically exempted
in section 4 of the bill from. the restrictions of this legislation.
Section 5. Remedies
This section provides that, where searches or seizures of documentary
materials by federal officials are alleged to be in violation of this act,
the remedy is specifically made available under the Federal Tort
Claims Act (FTCA). 28 U.S.C. section 2671 et seq.The FTCA cur-
rently provides for a remedy against the United States for alleged
misconduct which is recognized as a tort in the state in which the
injury occurred. This provision has been broadly interpreted by courts.
to allow recovery against the United States for tortious misconduct
of its agents. See Birnbaum v. United States, 588 F. 2d 319 (2d Cir.
1978) (Implied tort of invasion of privacy for mailopening by._CIA
agents) Spock v. United States, 464 F. Supp. 510 (S.D. N.Y. 1978)
(invasion of privacy by National Security Agency wiretaps) ; Black
APPFeved
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v. Sheraton Corp. of America, 564 F. 2d 531 (D.C. Cir. 1977) (inva-
sion of privacy and trespass by F.B.I. actionable under FTCA). In
addition, 28 U.S.C. section 2680(h) was amended in 1974 to assure
recovery for certain intentional torts committed by federal investiga-
tive or law enforcement officers, including abuse of process.
While the FTCA currently provides for a remedy against the United
States, additional remedial features are currently under consideration
by the Administrative Practice Subcommittee of this Committee.
Those provisions include liquidated damages, waiver of good faith de-
fense and a disciplinary mechanism supplement to immunizing indi-
vidual law enforcement officers. The Committee anticipates that these
further remedial measures will soon become available for victims of
searches and seizures by federal officials found to be in violation of the
provisions of this Act.
It must be noted here that the managers of H.R. 3486 have agreed
to the provision of Section 5 with the understanding that the proposed
improvement amendments to the FTCA will be enacted into law dur-
ing this Congress. If such enactment does not appear likely, the man-
agers reserve the right to support alteration of the remedies section by
amendment.
With regard to violations by State or local officials of the provisions
of Section 2 of this Act which protect those engaged in First Amend-
ment activities, the Committee recognizes that 42 U.S.C. 1983 will
provide a cause of action for the aggrieved person. Section 1983 pro-
vides a cause of action in Federal court for protection of rights, privi-
leges of immunities secured by the "Constitution and Laws of the
United States." The rights provided in Section 2 of this act shall be
considered rights provided by the "laws of the United States."
Section 6. Definition
This section provides definition of three terms used in the bill.
"Documentary Materials"
The bill focuses its search limitations on "documentary materials."
This term is given an expansive definition in order to, cover all "ma-
terials upon which information is recorded." Specifically included
within the definition of "documentary materials" are written or
printed materials, films, tape recordings, and interview files.
Documentary materials were selected for protection for two reasons.
First, it is searches for these sorts of materials that pose a significant
danger to privacy rights. Such searches often necessitate examination
of numerous irrelevant papers and files in order to locate those mate-
rials which pertain to the investigation in question. The import or na-
ture of documentary materials, unlike nondocumentary items such as
weapons or narcotics, is not apparent at first glance, but instead requires
examination of their contents. While the scope of a search for nondocu-
mentary materials may be effectively limited so as to exclude scrutiny
of papers and files, searches for documentary materials are not sus-
ceptible to such limitations and, as a result, are likely to entail rum-
maging through files containing sensitive and confidential information
which bears no relation to the criminal activity being investigated.
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A second reason for restricting the application of this bill to searches
for documentary materials is the fact that the purpose of such searches
is generally to gain access to the information contained in these ma-
terials. To the extent that this information is generated through the
investigative efforts of a reporter or researcher, it may be duplicated
by a similar effort on the part of law enforcement officers. On the other
hand, searches for non-documentary materials, such as contraband or
property of the defendant which bear incriminating fingerprints or
other physical evidence, arises out of a need to obtain these unique
items which cannot be duplicated through further investigative effort.
These nondocumentary materials should remain as permissible objects
of lawful search and seizure.
"Work product"
The term "work-product" encompasses those materials whose very
creation arises out of a desire to communicate to the public. What
triggers the work-product no-search rule is the fact that the materials
which are sought were created by or for a person in connection with
his plans, or the plans of the person creating the materials, to com-
municate to the public. Thus, the notes and drafts of a reporter would
be work product, as would be the photographs which were the sub-
ject of the search in the Stanford Daily case. Furthermore, a report
revealing government corruption prepared by a "whistleblower" and
sent to a newspaper in hopes that it will be published, would consti-
tute work product even though the report was not solicited by the
newspaper.
If plans to disseminate information to the public are formed at a
time after the creation of the materials, the materials would not con-
stitute work product. If, for example, a citizen is taking photographs
when a crime suddenly occurs and later decides to sell the photo-
graphs for publication, his photographs would not qualify as work
product since they were not created out of any desire that they be
published in a form of public communication. However, similar
photographs taken by a person on the staff of a newspaper assigned
to cover the event at which the crime took place would meet the work
product definition.
Contraband and the fruits and instrumentalities of a crime are
excluded from the definition of work product. While it would be rare
that such evidence would come within the work product definition
since such materials are usually not created for the purpose of com-
municating with the public, one example of such evidence would be a
ransom note-an instrumentality of the crime-which was sent by a
kidnapper to a newspaper to broadcast his demands.
Since contraband and the fruits and instrumentalities of a crime,
unlike work product materials generally, are intimately related to the
commission of a crime and their production at trial is often necessary
to securing convictions, these materials should not qualify for the
stringent protections that the no-search rule affords to work product.
If, however, such evidence is in documentary form, the protection of
the non-work product provisions of the bill would be applicable. In
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other words, all documentary materials which do not constitute work
product but which are nonetheless held in connection with plans to
disseminate a form of public communication are covered by the bill.
"Any other governmental unit"
As used in this Act, this term includes the District of Columbia, the
Commonwealth of Puerto Rico, any territory or possession of the
United States, and any local government, unit of local government, or
any unit of State government.
Oversight of the Department of Justice is the responsibility of the
Committee on the Judiciary. The budget authorization process and
the regular oversight activities of the Committee will permit sub-
stantive oversight of the Department's adherence to the requirements
of H.R. 3486. No oversight statement has been received from the Com-
mittee on Government Operations regarding H.R. 3486.
In regard to clause 2 (1) (3) (B) of rule XI of the House of Repre-
sentatives, H.R. 3486 creates no new budget authority. .
STATEMENT OF THE BUDGET COMMITTEE
No statement on H.R. 3486 has been received from the House Com-
mittee on the Budget.
ESTIMATED COST OF THE LEGISLATION
It is estimated that there will be no additional costs to the United
States due to the provisions of H.R. 3486.
CONGRESSIONAL BUDGET OFFICE,
U.S. CONGRESS,
Washington, D.C., April 25,1980.
Chairman, Committee on the Judiciary, U.S. House of Representa-
tives, Rayburn House Office Building, Washington, D.C.
DEAR MR. CHAIRMAN : Pursuant to Section 403 of the Congressional
Budget Act of 1974, the Congressional Budget Office has reviewed
H.R. 3486, the Documentary Materials Privacy Protection Act of
1980, as ordered reported by the House Committee on the Judiciary,
April 17, 1980.
The bill amends current law to make it unlawful for government
officials to search for or seize materials possessed by news or publica-
tion organizations and innocent third parties. If enacted, this bill
would require government agents to obtain subpoenas rather than
Hon. PETER W. RODINO, JR.,
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search warrants for materials. The bill also provides various excep-
tions to the prohibition against surprise searches and seizures. Based
on information from the Department of Justice and the Administra-
tive Office of the United States Courts, it is estimated that there will
be no significant additional cost as a result of these changes in pro-
cedure.
Should the Committee so desire, we would be pleased to provide
further details on this estimate.
Sincerely,
AiacE M. RivriN,
Director.
H.R. 3486 will have no forseeable inflationary impact on prices or
costs in the operation of the national economy.
H.R. 3486 was approved by the Committee on the Judiciary on
April 17, 1980, by a voice vote.
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ADDITIONAL VIEWS OF REPRESENTATIVE ROBERT
F. DRINAN
In the Pentagon Papers litigation, where the Government sought
to prevent The New York Times and The Washington Post from
publishing those documents, the late Judge Gurfein wrote :
The security of the Nation is not at the ramparts alone.
Security also lies in the value of our free institutions. A
cantankerous press, an obstinate press, an uniquitous press
must be suffered by those in authority in order to preserve the
even greater values of freedom of expression and the right of
the people to know.'
H.R. 3486 is designed to enhance the values of liberty underlying
the First and Fourth Amendments which protect the freedom of
speech and press and the right to be free in one's home or business
from unreasonable searches and seizures. In Zurcher v. Stanford
Daily, 436 U.S. 547 (1978), the Supreme Court eroded those values in
holding that police officials could use an ex parte warrant to search
the premises of a newspaper for evidence of crime allegedly committed
by persons having nothing to do with the operation of the paper.
Two days after the Zurcher decision, I introduced H.R. 12952 which
would have overturned that ruling. On two major points, my bill was
both broader and narrower than H.R. 3486. It was broader because it
would have applied to State officials as well as federal agents. Con-
gress has the authority, under Section 5 of the Fourteenth Amendment,
to enforce against state officials the rights secured by Section I of that
Amendment as defined either by the courts or by the Congress itself.2
For example, in Title III of the Omnibus Crime Control and Safe
Streets Act,' Congress exercised that power by regulating state and
federal wiretapping practices. It would have been preferable if
H.R. 3486 covered state and local officials as well as federal employees.
On the second point however, H.R. 3486 is broader than H.R. 12952.
My earlier bill limited protection to news organizations, while H.R.
3486 includes other persons disseminating information to the public.
On balance, H.R. 3486 is an excellent piece of legislation which merits
strong support. Thus I join the majority report of the Committee
without reservation, but add a few words regarding Section 5 of the
bill.
1 United States v. The New York Times Co., 328 F. Supp. 324, 331 (S.D.N.Y.) aff'd,
403 U.S. 713 (1971) (per curiam).
2 The Supreme Court has upheld the broad power of Congress under Section 5 to en-
force 14th Amendment rights defined either by the courts, e.g.. Ex parte Virginia, 100 U.S.
339 (1880) or by the Legislature. E.g., Katzenbach v. Morgan, 384 U.S. 641 (1966). The
Morgan case is particularly instructive because the Court sustained a provision of the
Voting Rights Act of 1965 invalidating literacy tests in the face of an earlier Supreme
Court decision holding that such tests do not violate the 14th Amendment. Compare Las-
siter v. Northampton County Election Board, 360 U.S. 45 (1959).
818 U.S.C. Sections 2510-2520.
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Section 5 H.R. 3486 authorizes a damage remedy against the United
States for persons who are injured or aggrieved by a violation of the
statute. Because of the doctrine of sovereign immunity, it is necessary
for Congress to waive it if damages against the Government are to be
recovered. "A waiver of sovereign immunity cannot be implied but
must be unequivocally expressed. United states v. King, 395 U.S. 1,
4(1969)." United States v. Mitchell, 48 U.S.L.W. 4365, 4366 (U.S.
April 15, 1980). Section 5 is intended as the express waiver by giving
the aggrieved or injured person a remedy under the Federal Tort
Claims Act. This provision makes it clear that the "[r]emedies against
the United States provided by this section shall be exclusive of any
other remedy or sanction, including the exclusionary rule."
Even though Section 5 provides the "exclusive" remedy against the
United States, it should not be construed as the only remedy available
to a person adversely affected or aggrieved by the unlawful conduct
of federal agents. Such persons also have a private right of action
against the federal officer or employee who committed the allegedly
illegal act. These private claims for relief arise from two sources :
(1) the Administrative Procedure Act (now codified largely in Chap-
ters 5 and 7 of Title 5 US'C) ; and (2) H.R. 3486 itself. Each source
will be discussed in turn.
The Administrative Procedure Act (hereafter referred to as the
APA) gives any person "adversely affected or aggrieved by agency
action" a right to sue in court challenging that illegal conduct. 5 USC
section 702. The APA creates a strong presumption of judicial review
which may be rebutted only if it can be shown by clear and convincing
evidence that Congress intended to preclude review. Abbott Labora-
tories v. Gardner, 387 U.S. 136 (1967). Just last term the Supreme
Court reaffirmed the availability of the APA as a basis for challenging
a wide variety of adverse agency actions. See Chrysler Corp. v. Brown,
441 U.S. 281 (1979).
It should be noted, however, that claims against federal officials
under the APA extend only to actions "seeking relief other than money
damages." 5 USC section 702. Nonetheless such suits, which may seek
"declaratory judgments or writs of prohibitory or mandatory injunc-
tion" or other forms of "non-legal" relief, play an important role in
controlling unlawful conduct by public officials. For example, if fed-
eral agents illegally seize materials from a newspaper or magazine
which are about to be published, the person aggrieved or injured might
wish to challenge the legality of such seizure through a suit for in-
junctive relief under the APA.4
In addition to the APA, a person adversely affected, aggrieved, or
injured by a violation of H.R. 3486 may bring an action based directly
on the proscriptions in the bill. Of course, Congress need not expressly
give a private person a right of action so long as we make it clear in
the legislative history that we so intend. At least since 1916, the Su-
preme Court has permitted private persons to bring suits implicdly
based on rights inferred from federal statutes. Texas & Pacific Rail-
road Co. v. Rigsby, 241 U.S. 33 (1916). Only last term the Court au-
thorized a female victim of alleged sex discrimination to institute
litigation premised on rights implicitly found in Title IX of the Edu-
' Seizure of property is, of course, "agency action" within the meaning of the APA. 5
U.S.C. Section 551 (10) (D) and (13).
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cation Amendments of 1972. Cannon v. University of Chicago, 441
U.S. 677 (1979).
In the Cannon decision and in the earlier case of Cort v. Ash, 422
U.S., 66 (1975), the Supreme Court identified four factors which
courts must evaluate to determine if a private right of action should
be inferred from the federal statute. Recently, however, the Court
appeared to move away from the four-factor analysis of the Cort-
Cannon line of cases to the single factor of legislative intent. In
Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 100 S. Ct.
242, 245 (1979), the Court held that "what must ultimately be deter-
mined is whether Congress intended to create the private remedy
asserted." Thus it is important that Congress state, as we do here,
our intention to authorize private persons to bring suits under this
statute against federal officers or employees who engage in conduct
made unlawful by this act.
The reasons for our authorizing private persons to sue the responsi-
ble federal officer or employee under H.R. 3486, apart from the
remedies provided by the APA and the Tort Claims Act, are, obvious.
The remedies presently available under the APA and the Tort Claims
Act are not adequate, in all cases, to provide complete relief to the vic-
tim of unlawful conduct under H.R. 3486.
First, as noted earlier, monetary damages are not available at all
under the APA. While a money judgment may be obtained against
the United States under the Federal Tort Claims Act, punitive dam-
ages are barred by the statute. 28 U.S.C. section 2674. In addition a
litigant is not entitled to a jury trial 28 U.S.C. section 2402, which
may seriously impair the recovery of an adequate award of damages.
Second, there is some question whether the Federal Tort Claims Act,
as presently written, would provide a damage remedy for violations
of H.R. 3486. While the substantive coverage of the Act is keyed to
state law, 28 U.S.C. section 1346 (b), the Supreme Court has held
that state created strict liability torts are not covered by the statute.
Laird v. Nelms 406, U.S. 797 (1972). In addition the Act contains
numerous exceptions, 28 U.S.C. section 2680 which the court has
sometimes interpreted expansively. See Dalehite v. United States,
346, U.S. 15 (1953). Even the recent amendments to the Tort Claims
Act covering certain "acts or omissions of investigative or law enforce-
ment officers" extend only to claims arising out of "assault, battery,
false imprisonment, false arrest, abuse of process, or malicious pros-
ecution." 28 U.S.C. section 2680 (h).
Third, it is important that particular officers or employees of the
Government be aware that they may be directly liable for their
unlawful conduct.,' If an action against the United States under the
Tort Claims Act is the only remedy, federal employees may feel they
can violate H.R. 3486 with impunity, knowing that the only damage
remedy available lies against the Government.
A few weeks ago the Supreme Court reaffirmed the vitality of
that point in Carlson v. Green, 48 U.S.L.W. 4421 (U.S. April 22,
1980), where it held that the mother of a deceased federal prisoner
5 To be sure, federal officers or employees, in such cases, would have a qualified immunity
as a defense to such money claims if they acted on a good faith belief of the legality of
their actions or without a malicious intent to deprive any person of a right under H.R.
3486. See Butz V. Evonomou, 434 U.S. 994 (1978).
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has an implied claim for damages under the Eighth Amendment
against federal prison officials. The Court rejected the Government's
contention that the Tort Claims Act provides an adequate remedy.
Fourth, in some circumstances, the injured or aggrieved person may
be suing for injunctive or other equitable relief. For example, a dispute
with a particular newspaper or scholar may involve several pieces of
evidence which the Government may wish to obtain. Thus federal
agents may make several attempts to size the allegedly probative evi-
dence. In cases where the conduct of Government agents may involve a
pattern or a series of violations over a short period of time, the damage
remedy against the United States may be inadequate. And more im-
portant, as noted earlier, if federal agents unlawfully seize materials
which are about to be published, the news organization or other person
covered by the statute may wish to bring a suit in equity to recover the
materials improperly seized. In such instances a damage remedy
against the Government may be totally useless, while the equitable
remedy under either the APA or H.R. 3486 would be meaningful.
For these and other reasons, it is important that private persons in-
jured or aggrieved by conduct made unlawful by H.R. 3486 be per-
mitted to sue federal officers and employees under the statute. Because
Rigsby, Cort, Cannon and the TAMA cases make it clear than Con-
gress does not have to give such rights expressly in the statute, we
make it plain here that we do intend injured or aggrieved persons to
have a claim for relief under H.R. 3486. In light of the need for such
a remedy, the courts should permit private persons to initiate actions
for legal or equitable relief.
Finally, it should be noted that Section 5 purports to preclude any
person from invoking the exclusionary rule as a "remedy or sanction"
for a violation of H.R. 3486. In all candor, this part of Section 5 was
not discussed at the full Committee mark-up session. Section 5 was rep-
resented to the Committee as simply providing a damage, remedy
against the United States for violations of H.R. 3486. Focusing now on
the potential sweep of Section 5, it is entirely possible that this provi-
sion could be interpreted as eliminating entirely the use of the exclu-
sionary rule for violations of H.R. 3486.
Such an interpertation would be a reversal of landmark judicial and
legislative decisions over the past 65 years. From Weeks 6 to Mapp 7 to
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 8
(the wiretap statute), the Supreme Court and the Congress have
moved together to broaden the protections for citizens and others
against overstepping by law enforcement officials. For example, the
wiretap statute passed by Congress in 1968 contains a very sweeping
exclusionary rule which forbids the admissibility of any evidence "in
any trial, hearing or other proceeding in or before any court, grand
fury, department, officer, agency, regulatory body, legislative commit-
tee, or other authority of the United States, a state, or a political sub
division thereof if the disclosure of that information would be in vio-
lation" of Title III. 18 U.S.C. ? 2514. It would be difficult to draft a
broader exclusionary rule than that contained in Title III : it applies to
Weeks Y. United States, 232 U.S. 383 (1914).
Mapp v. Ohio, 367 U.S. 643 (1961).
? 18 U.S.C. Sections 2510-2520.
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every conceivable proceeding at the federal level, including hearings
before congressional committees, and it applies to all proceedings at
the state level as well.
The serious incursion Section 5 potentially makes into the exclu-
sionary rule is not to be taken lightly. It must be remembered that
H.R. 3486 is enacted to advance the highest principles of democracy :
the protection of the values which undergird the First and Fourth
Amendments. Not to provide the remedy of the exclusionary rule
in that context would be to undermine significantly the effectiveness
of the statute. Suppose, for example, the Government should once
again, as it did in the Ellsberg case, prosecute a present or former
federal employee for releasing information to the New York Times.
Assume also that federal agents now seize evidence from The Times
in violation of H.R. 3486 for use at the criminal trial of the federal
employee. Based on that illegally obtained evidence, the Government
then indicts the New York Times and its employees as co-conspirators.
Under one reading of Section 5, the Times and its employees, as well
as the orignial defendant, could not invoke the exclusionary rule to
challenge the legality of the seizure. Under one reading of Section 5,
they could only assert a damage remedy against the United States
under the Tort Claims Act.
That broad reading of the "exclusionary rule" reference in Section
5 must be rejected categorically. On its face, this provision is clearly
inconsistent with the APA : "Except to the extent that prior, ade-
quate, and exclusive opportunity for judical review is provided by
law, agency action is subject to judicial review in civil or criminal
proceedings for judicial enforcement." 5 U.S.C. ? 703.=
Consequently, a person adversely affected or aggrieved by such
agency action has the right to raise the legality of that conduct in a
criminal proceeding.1? Neither H.R. 3486 nor any other statute can
"supersede or modify" the APA unless "it does so expressly." 5 U.S.C.
? 559 H.R. 3486 does not contain any language which meets that test
of explicit congressional direction. Thus Section 5 cannot be read to
preclude any person, in a civil or criminal enforcement proceeding,
from challenging the legality of a seizure in violation of H.R. 3486.
The reference to the exclusionary rule in Section 5 does, however,
impose some restrictions. It simply means that no claim for damages
based on a violation of the exclusionary rule may be brought directly
on the basis of the Fourth Amendment for conduct violative of H.R.
3486. In other words, H.R. 3486 does not overrule the Zurcher 11 case
in the sense that the courts must now reinterpret the Fourth Amend-
ment in accordance with the views of Congress. In this bill we say
nothing about the proper interpretation of the Fourth Amendment.
H.R. 3486 simply provides statutory rights and remedies for conduct
found by the Court in Zurcher not to violate the Fourth Amendment.
In short, the reference to the exclusionary rule in Section 5 precludes
9 As noted earlier, seizure of property is, "agency action" within the meaning of the
APA. 5 U.S.C. Section 551 (10) (D) and (13).
10 Whether any particular defendant is a person "adversely affected or aggrieved" by
agency action is a question of standing to be determined by looking both at the APA and
at H.R. 3486. See Association of Data Processing Service Organizations v. Camp. 397 U.S.
150 (1970) ; Barlow v. Collins, 397.U.S. 159 (1970).
u Zurcher v. Stanford Daily, 436 U.S. 547 (1978).
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the assertion of Fourth Amendment claims for Zurcher-type conduct
under the Federal Tort Claims Act.
Alternatively, if the reference to the exclusionary rule in Section 5
is read broadly, which it should not be, to preclude any person from
invoking the exclusionary rule in a civil or criminal enforcement pro-
ceeding, then the Congress is obligated under the APA to provide a
"prior, adequate, and exclusive opportunity for judicial review" of the
challenged agency action. 5 USC section 703. Where allegedly unlaw-
ful conduct by Government agents is directly related to the enforce-
ment proceeding, as it would be under H.R. 3486, the APA requires
that the defendant be given an adequate opportunity prior to the
enforcement proceeding to challenge the legality of that conduct. In-
deed the right under the APA to attack the legality of government
action in a pre-enforcement proceeding may well be rooted in the due
process clause of the Fifth Amendment. See Yakus v. United States,
321 U.S. 414 (1944).--
These serious questions of constitutional and statutory interpreta-
tion may be avoided by viewing the private right of action under H.R.
3486, discussed earlier, as the prior and adequate opportunity to chal-
lenge the legality of the search and seizure required by 5 USC section
703. Thus if a defendant in a civil or criminal enforcement proceeding
wishes to challenge the legality of the federal agents conduct under
H.R. 3486, the defendant may do so by instituting a civil action and
securing a judgment prior to the commencement of the trial in the
enforcement proceeding'.13 Ordinarily a defendant may not, in a col-
lateral proceeding challenge the admissability of evidence simply be-
cause the defendant may do so in the course of the enforcement pro-
ceeding. See Ste f anelli v. Minard, 342 U.S. 117 (1951). But if Section
5 is interpreted to preclude that opportunity, then the defendant must,
under the . APA and the due process clause, have a forum for chal-
leriging the violation of HR: 3486 in advance of the trial.
In p-summary then the language in. Section 5 regarding the exclu-
sionary-rule should be narrowly construed, in the manner suggested
earlier,.to avoid these difficult constitutional and statutory questions.
But if it is interpreted to-preclude challenging the admissability of
evidence--obtained. in violation of. H.R. 3486 during the enforcement
proceeding, then- the defendant should be permittedto utilize the pri-
vate right of action remedy authorized by H.R. 3486 to bring, a civil
suit and secure a judgment on the legal questions prior to the opening
day of trial. This is yet another reason why H.R. 3486 must be inter-
preted to authorize a private right of action against the offending
officials.
In discussing the scope of H.R. 3486, one question runs through the
entire debate: who may enforce its salutary provisions? This issue is
sometimes referred to as "standing", a matter controlled in part by
IS Because of the serious constitutional. and statutory questions which would be raised
by a broad reading of the Section 5 language relating to the exclusionary rule, the phrase
should be read narrowly as suggested above.
" In rare cases the defendant may not learn that the Government has violated H.R.
3486 until the "trial begins. In such instances, the defendant should be permitted to object
to the admissability of the illegally seized evidence. Alternatively, H.R. 3486 could be read
as imposing an affirmative obligation on the Government to-disclose to the defendant that
it plans to introduce or has in its files evidence secured- involuntarily from persons pro-
tected by H.R. 3486. See Brady v. Maryland, 378 U.S. 83 (1963).
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the "case or controversy" limitation of Article III.14 H.R. 3486 should
be construed liberally to give a wide range of interested persons and
parties the right to challenge violations of the statute. The courts
should apply a broad concept of persons adversely affected, injured,
or aggrieved. See Gladstone, Realtors v. Village of Bellwood, 441 U.S.
91 (1979) ; United States v. SCRAP, 412 U.S. 669 (1973). Standing
under this statute should be as broad as Article III permits because
it is a remedial measure to enforce important First and Fourth
Amendment values. See Traf lcante v. Metropolitan Life Ins. Co., 409
U.S. 205 (1972). This broad notion of standing should apply equally
to federal and state courts and equally whether the challenge to the
conduct violative of H.R. 3486 arises in a civil action instituted by the
person adversely affected or aggrieved, or in a civil or criminal en-
forcement proceeding where the defendant may wish to raise it.15
ROBERT F. DRINAN.
14 Article III standing limitations under H.R. 3486 would not be implicated if the
private action is brought in state court. But since federal officials may freely remove such
suits to federal court under 28 U.S.C. 1442, that possibility would almost never arise in
the context of a private civil action. However, if federal officials were to seize evidence in
violation of H.R. 3486 and turn it over to state or local prosecutors, then the question of
its application in state court might arise.
15 Because H.R. 3486 should be liberally construed to confer standing as broadly as Art.
III permits, the courts should not impose "prudential" limitations on standing which
might be appropriate where no act of Congress is involved. See Warth v. Seidin, 422 U.S.
490 (1975) ; Rakas v. Illinois, 439 U.S. 128 (1978).
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ADDITIONAL AND DIFFERING VIEWS OF HON.
GEORGE E. DANIELSON
Except as otherwise set forth here, I am in agreement with the views
of Mr. Hyde.
I oppose the purposes of this bill, H.R. 3486, in their entirety. I be-
lieve that there should be no special exceptions from the coverage of
the Fourth Amendment for those persons known as "the press", nor
for anyone else.
The bill would exempt from the reach of search warrants materials
in.the possession of persons who intend to disseminate the material to
the public-in-some form of public communication, whatever that may
be. There are certain limited exceptions.
. In my opinion the Congress would be making a gross and unaccept-
able error if it were to create an elite class of persons, be they press or
anyone else, who would enjoy a privileged status under our laws and
the Constitution. It is fundamental in our system of justice that no one
should be above the law and the Constitution. The Judiciary Commit-
tee itself made that point eminently clear when it voted Articles of
Impeachment against former President Nixon. And the Supreme
Court of the United States clearly did the same in its decision in the
.United States v. Nixon, 418 U.S. 683 (1974).
Those who fear that law enforcement has the right, under present
..law, to conduct unreasonable and unwarranted excursions into the pri-
vate papers of the people could well read again the clear.and -exacting
standards for searches which are set forth in the Fourth Amendment to
the Constitution, which provides :
? The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seiz-
ores, shall not be violated,
? And no*Warrants shall issue,'but upon probable cause, sup
ported by Oath or affirmation,
? And particularly describing the place to be searched, and`
the persons or things to be.seized.
These standards are high. They insure that the security of the people
in their fundamental area of privacy shall not be violated, and that. no
search warrant can issue unless:
1. The proposed search is reasonable;
2. There is'probable cause;
3. Supported by oath or affirmation;
4. Describing with particularity;
5. The place to be searched : and
6. The persons or things to be seized.
These are very high standards. They have stood the test of time and
trial. since 1791; they have been briefed, argued, debated:and.refined in
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numerous decisions of our Courts; and they have provided the Amer-
ican people with a degree of security in their persons, homes, papers
and effects that has never been equaled in any society.
Further, there are other safeguards which prevent the indiscriminate
issuance of search warrants. For instance, we must remember that
search warrants are not issued by the law enforcement authorities
themselves. Those officers must go to court or a magistrate and apply
for the issuance of the warrant. That application must reflect the prob-
able cause and other particulars set forth in the Fourth Amendment,
and it must be supported by oath or affirmation before the court will
issue the warrant.
The special elite corps which the bill would protect in its Section 2
is indefinable. I submit that very nearly anyone or everyone can reason-
ably contend that he plans to disseminate the documentary material
in his possession to the public in some form of public communication;
either now or later. This would certainly apply to anyone who has the
intent of ever distributing to the public a newsletter, a mimeographed
flyer, some gossip on a radio talk show, or a handbill, as well as to a
traditional newspaper.
I respectfully submit that this is bad legislation, and it should be
soundly defeated.. Its great evils are that it creates an elite corps of per-
sons who would be above the law-a classification to which a responsi-
ble and professional newsman should not subscribe; it creates sanctu-
aries for the concealment of evidence of crime; and it would impose
severe and added burdens on law enforcement at a time when the public
is crying out for more and more effective enforcement of our laws.
GEORGE E. DANIELSON.
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SUPPLEMENTAL VIEWS OF MESSRS. HYDE, LUNGREN,
SENSENBRENNER, AND VOLKMER
This bill was introduced for the purpose of responding to the
Supreme Court's holding two years ago in Zurcher v. Stanford Daily
436 U.S. 597 (1978). In that decision, which resulted in a 5-4 split,
the Court held-that the press was not exempt from standard search
and seizure procedures as permitted by the Fourth Amendment. Its
holding was entirely consistent with its earlier unwillingness to pro-
tect reporters from having to divulge their sources pursuant to grand
jury investigations. Branzburg v. Hayes, 408 U.S. 665 (1972).
Nevertheless, we feel the press should be prospectively protected
from searches which may well have a chilling effect on its very fun-
damental responsibility to inform the public.
Our apprehension, therefore, flows not from the motivations which
created this bill in the first place, but rather from an effort which
has been made in full Committee to broaden its coverage and tres-
pass into what we believe to be dangerous and unchartered waters.
Section 2 of the bill spells out the statutory exception this legisla-
tion provides for the Press. Very simply, it creates a "subpoena
first" rule which demands that a subpoena must be sought ahead of a
search warrant where documentary evidence held by the Press is
concerned. If any one of several factors are present, including "rea-
son to believe" that the evidence will be destroyed, a warrant may
issue.
Section 3 extends similar protection to "Innocent Third Parties,"
whoever they are. As we have said, we are not particularly worried
about the passage of this bill with an exception to search and seizure {
law for the Press because confidential news sources must feel that
they can come forward without fear of having their names accidentally
revealed to law enforcement officials. That security is the life's blood
of a free society. Furthermore, there is no record of Federal abuse
in this area. Section 3, however, is an altogether different matter.
Third parties, whether innocent or not, are very often the subject of
seizures conducted pursuant to search warrants. Passage of this sec-
tion will cause a major law enforcement problem and create a sanc-
where incriminating evidence can remain safe and untouched
tuary
until notification is given by a subpoena duces tecum.
We should all keep in mind that the Fourth Amendment guaran-
tees for all of us, including third parties, the right to be "secure
in [our] persons, houses, papers, and effects, against unreasonable
searches and seizures, ...." Privacy therefore, is the principal con-
sideration and search warrants may not issue unless, as provided in
clause two of the Amendment, "probable cause" is present. This sec-
tion will raise that standard to require an additional "reason to be-
lieve." And what is "reason to believe"? No one knows. The record
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shows no precedent for it and even the Members of the Committee
are unsure of its meaning. So, why are we preparing to enact it into
law?
The proponents of H.R. 3486, as originally introduced, included
the Department of Justice. When section 3 was added in subcommittee,
the Department's position radically changed. On March 31, 1980,
Attorney General Civiletti wrote Chairman Rodino, with copies to
each of us, that :
[B]y shifting the focus of the warrant procedure to an
examination of the motives and intent of third parties who
hold evidence of crimes [you] will in effect require further
intrusions into the privacy of innocent persons which here-
tofore have been unnecessary. In sum, section 3-... will ..
create severe law enforcement disabilities.
Proponents of section 3 contend that if a law enforcement officer
has "reason to believe" that evidence will be destroyed or that serious
bodily injury or death will result from a delay, he can get a search
warrant as before. Otherwise, he must demand the evidence through
a subpoena. The plain fact is, however, that the Constitution demands
only a showing of probable cause and that this bill would raise that
standard without a showing that it is indeed a prudent and neces-
sary thing to do. Basic investigative tools should not be so easily
discarded, especially without documentation of the new standard's
true meaning and extensive abuse requiring protective legislation.
Actually, to determine whether or not "reason to believe" is present,
an investigation by the FBI of the alleged "innocent third party"
would be required. This can do further violence to the privacy in
which we assert such a protective interest.
When this bill reaches the House floor, an amendment will be
offered to eliminate section 3. We believe it is a dangerous and ill-
conceived provision, and we urge our colleagues to read it carefully
lest you find that you are criticized for having unwittingly created
Organized Crime's dream : a statutorily protected sanctuary in which
to conceal incriminating evidence from the probing eyes of law
enforcement.
HENRY J. HYDE.
DANIEL E. LUNGREN.
F. JAMES SENSENBRENNER.
HAROLD L. VOLiMER.
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