|Privacy Protection Act|
Derived From: Explanation of the PPA by the US DOJ, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, Sec. II.B.2. July 2002. 2009 Edition also consulted. (Remember: This is a rendition of the state of the law from law enforcement and reflects their views)
2. The Privacy Protection Act
When agents have reason to believe that a search may result in a seizure of materials relating to First Amendment activities such as publishing or posting materials on the World Wide Web, they must consider the effect of the Privacy Protection Act ("PPA"), 42 U.S.C. § 2000aa. Every federal computer search that implicates the PPA must be approved by the Justice Department, coordinated through CCIPS .
Under the Privacy Protection Act ("PPA"), 42 U.S.C. § 2000aa, law enforcement must take special steps when planning a search that agents have reason to believe may result in the seizure of certain First Amendment materials. Federal law enforcement searches that implicate the PPA must be pre-approved by a Deputy Assistant Attorney General of the Criminal Division. The Computer Crime and Intellectual Property Section serves as the contact point for all such searches involving computers .
a) A Brief History of the Privacy Protection Act
Before the Supreme Court decided Warden v. Hayden, 387 U.S. 294, 309 (1967), law enforcement officers could not obtain search warrants to search for and seize "mere evidence" of crime. Warrants were permitted only to seize contraband, instrumentalities, or fruits of crime. See Boyd v. United States, 116 U.S. 616 (1886). In Hayden, the Court reversed course and held that the Fourth Amendment permitted the government to obtain search warrants to seize mere evidence. This ruling set the stage for a collision between law enforcement and the press. Because journalists and reporters often collect evidence of criminal activity in the course of developing news stories, they frequently possess "mere evidence" of crime that may prove useful to law enforcement investigations. By freeing the Fourth Amendment from Boyd's restrictive regime, Hayden created the possibility that law enforcement could use search warrants to target the press for evidence of crime it had collected in the course of investigating and reporting news stories.
It did not take long for such a search to occur. On April 12, 1971, the District Attorney's Office in Santa Clara County, California obtained a search warrant to search the offices of The Stanford Daily, a Stanford University student newspaper. The DA's office was investigating a violent clash between the police and demonstrators that had occurred at the Stanford University Hospital three days earlier. The Stanford Daily had covered the incident, and published a special edition featuring photographs of the clash. Believing that the newspaper probably had more photographs of the clash that could help the police identify the demonstrators, the police obtained a warrant and sent four police officers to search the newspaper's office for further evidence that could assist the investigation. The officers found nothing. A month later, however, the Stanford Daily and its editors brought a civil suit against the police claiming that the search had violated their First and Fourth Amendment rights. The case ultimately reached the Supreme Court, and in Zurcher v. Stanford Daily, 436 U.S. 547 (1978), the Court rejected the newspaper's claims. Although the Court noted that "the Fourth Amendment does not prevent or advise against legislative or executive efforts to establish nonconstitutional protections" for searches of the press, it held that neither the Fourth nor First Amendment prohibited such searches. Id. at 567.
Congress passed the PPA in 1980 in response to Stanford Daily. According to the Senate Report, the PPA protected "the press and certain other persons not suspected of committing a crime with protections not provided currently by the Fourth Amendment." S. Rep. No. 96-874, at 4 (1980), reprinted in 1980 U.S.C.C.A.N. 3950. The statute was intended to grant publishers certain statutory rights to discourage law enforcement officers from targeting publishers simply because they often gathered "mere evidence" of crime. As the legislative history indicates,
the purpose of this statute is to limit searches for materials held by persons involved in First Amendment activities who are themselves not suspected of participation in the criminal activity for which the materials are sought, and not to limit the ability of law enforcement officers to search for and seize materials held by those suspected of committing the crime under investigation.
Id. at 11.
b) The Terms of the Privacy Protection Act
Subject to certain exceptions, the PPA makes it unlawful for a government officer "to search for or seize" materials when
(a) the materials are "work product materials" prepared, produced, authored, or created "in anticipation of communicating such materials to the public," 42 U.S.C. § 2000aa-7(b)(1);
(b) the materials include "mental impressions, conclusions, or theories" of its creator, 42 U.S.C. § 2000aa-7(b)(3); and
(c) the materials are possessed for the purpose of communicating the material to the public by a person "reasonably believed to have a purpose to disseminate to the public" some form of "public communication," 42 U.S.C. §§ 2000aa-7(b)(3), 2000aa(a);
(a) the materials are "documentary materials" that contain "information," 42 U.S.C. § 2000aa-7(a); and
(b) the materials are possessed by a person "in connection with a purpose to disseminate to the public" some form of "public communication." 42 U.S.C. §§ 2000aa(b), 2000aa-7(a).
In these situations, the government is required to use a subpoena or other compulsory process rather than use a search warrant, unless a PPA exception applies.
The PPA protects a broad set of actors. It is not limited to journalists: it has been used by a publisher of role-playing games, see Steve Jackson Games, Inc. v. Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993), and a publisher of an "internet-based journal," although the latter's claim was dismissed on other grounds. See Mink v. Suthers, 482 F.3d 1244, 1257-58 (10th Cir. 2007).
Although the language of the PPA is broad, the statute contains several exceptions. Searches will not violate the PPA when
Contraband. The PPA does not apply to "contraband or the fruits of a crime or 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." 42 U.S.C. § 2000aa-7(a), (b).
Criminal suspect. The PPA does not apply 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," although the statute sets forth a further exception to this exception in certain circumstances where the offense "consists of the receipt, possession, communication, or withholding" of the targeted materials. See 42 U.S.C. §§ 2000aa(a)(1), 2000aa(b)(1); Guest v. Leis, 255 F.3d 325, 342 (6th Cir. 2001); DePugh v. Sutton, 917 F. Supp. 690, 696 (W.D. Mo. 1996) ("The P.P.A. clearly allows the government to depart from the requirements of the Act in those instances in which the person suspected of a crime is in possession of documents related to the crime."). Materials may "relate" to an offense even when the relations are somewhat remote. For example, in S.H.A.R.K. v. Metro Parks Serving Summit County, 499 F.3d 553 (6th Cir. 2007), animal rights activists placed hidden cameras on trees to document planned extermination of deer. The removal (and seizure) of those cameras did not violate the PPA, because the cameras were "related" to the crime of trespass necessary to place them there in the first place. Id. at 567.
Emergency. The PPA does not apply if there is reason to believe that the immediate seizure of such materials is necessary to prevent death or serious bodily injury. See 42 U.S.C. §§ 2000aa(a)(2), 2000aa(b)(2).
Subpoena would be inadequate. The PPA does not apply in a search for or seizure of "documentary materials" as defined by § 2000aa-7(a), if a subpoena has proven inadequate or there is reason to believe that a subpoena would not result in the production of the materials, see 42 U.S.C. § 2000aa(b)(3)-(4). One court held this exception was met when an incriminating videotape was in the possession of a person who was friends with the person whom the tape would incriminate. See Berglund v. City of Maplewood, 173 F. Supp. 2d 935, 949-50 (D. Minn. 2001).
Violations of the PPA do not result in suppression of the evidence, see 42 U.S.C. § 2000aa-6(d), but can result in civil damages against the sovereign whose officers or employees execute the search. See § 2000aa-6(a), (e); Davis v. Gracey, 111 F.3d 1472, 1482 (10th Cir. 1997) (dismissing PPA suit against municipal officers in their personal capacities because such suits must be filed only against the "government entity" unless the government entity has not waived sovereign immunity). If State officers or employees violate the PPA and the state does not waive its sovereign immunity and is thus immune from suit, see Barnes v. State of Missouri, 960 F.2d 63, 65 (8th Cir. 1992), individual State officers or employees may be held liable for acts within the scope or under the color of their employment subject to a reasonable good faith defense. See § 2000aa-6(a)(2),(b).
c) Application of the PPA to Computer Searches and Seizures
PPA issues frequently arise in computer cases for two reasons that Congress could not have foreseen in 1980. First, the use of personal computers for publishing and the World Wide Web has dramatically expanded the scope of who is "involved in First Amendment activities." Today, anyone with a computer and access to the Internet may be a publisher who possesses PPA-protected materials on his or her computer.
The second reason that PPA issues arise frequently in computer cases is that the language of the statute does not explicitly rule out liability following incidental seizures of PPA-protected materials, and such seizures may result when agents search for and seize computer-stored contraband or evidence of crime that is commingled with PPA-protected materials. For example, investigations into illegal businesses that publish images of child pornography over the Internet have revealed that such businesses frequently support other publishing materials (such as drafts of adult pornography) that may be PPA-protected. Seizing the computer for the contraband necessarily results in the seizure of the PPA-protected materials, because the contraband is commingled with PPA-protected materials on the business's computers. If the PPA were interpreted to forbid such seizures, the statute would not merely deter law enforcement from targeting innocent publishers for their evidence, but also would bar the search and seizure of a criminal suspect's computer if the computer included PPA- protected materials, even incidentally.
The legislative history and text of the PPA indicate that Congress probably intended the PPA to apply only when law enforcement intentionally targeted First Amendment material that related to a crime, as in Stanford Daily. For example, the so-called "suspect exception" eliminates PPA liability when "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," 42 U.S.C. § 2000aa(a)(1), § 2000aa(b)(1) (emphasis added). This text indicates that Congress believed that PPA-protected materials would necessarily relate to a criminal offense, as when investigators target the materials as evidence. When agents collaterally seize PPA-protected materials because they are commingled on a computer with other materials properly targeted by law enforcement, however, the PPA-protected materials will not necessarily relate to any crime at all. For example, the PPA-protected materials might be drafts of a horticulture newsletter that just happen to sit on the same hard drive as images of child pornography or records of a fraud scheme.
The Sixth Circuit has explicitly ruled that the incidental seizure of PPA-protected material commingled on a suspect's computer with evidence of a crime does not give rise to PPA liability. Guest v. Leis, 255 F.3d 325 (6th Cir. 2001), involved two lawsuits brought against the Sheriff's Department in Hamilton County, Ohio. The suits arose from the seizures of two servers that had been used to host bulletin board systems suspected of housing evidence and contraband relating to obscenity, phone tapping, child pornography, credit card theft, and software piracy. The Sixth Circuit noted that "when police execute a search warrant for documents on a computer, it will often be difficult or impossible (particularly without the cooperation of the owner) to separate the offending materials from other 'innocent' material on the computer" at the site of the search. Id. at 341-42. Given these pragmatic concerns, the court refused to find PPA-liability for incidental seizures; to construe the PPA otherwise would "prevent police in many cases from seizing evidence located on a computer." Id. at 342. Instead, the court held that "when protected materials are commingled on a criminal suspect's computer with criminal evidence that is unprotected by the act, we will not find liability under the PPA for seizure of the PPA-protected materials." Id. The Guest court cautioned, however, that although the incidental seizure of PPA-related work-product and documentary materials did not violate the Act, the subsequent search of such material was probably forbidden. Id.
The Sixth Circuit's decision in Guest verifies that the suspect exception works as the legislature intended: limiting the scope of PPA protection to "the press and certain other persons not suspected of committing a crime." S. Rep. No. 96-874, at 4 (1980), reprinted in 1980 U.S.C.C.A.N. 3950. At least one other court has also reached this result by broadly interpreting the suspect exception's phrase "to which materials relate" when an inadvertent seizure of commingled matter occurs. See United States v. Hunter, 13 F. Supp. 2d 574, 582 (D. Vt. 1998) (concluding that materials for weekly legal newsletter published by the defendant from his law office "relate" to the defendant's alleged involvement in his client's drug crimes when the former was inadvertently seized in a search for evidence of the latter). See also S.H.A.R.K. v. Metro Parks Serving Summit County, 499 F.3d 553, 567 (6th Cir. 2007) (seizure of video cameras placedby trespassers did not violate PPA because cameras were related to the crime of trespass); Carpa v. Smith, 2000 WL 189678, at *1 (9th Cir. Feb. 8, 2000) (unpublished) ("[T]he Privacy Protection Act . . . does not apply to criminal suspects.").
The Sixth Circuit's decision in Guest does not address the commingling issue when the owner of the seized computer is not a suspect. In the only published decision to date directly addressing this issue, a district court held the United States Secret Service liable for the inadvertent seizure of PPA-protected materials. See Steve Jackson Games, Inc. v. Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993), aff'd on other grounds, 36 F.3d 457 (5th Cir. 1994). Steve Jackson Games, Inc. ("SJG") was primarily a publisher of role-playing games, but it also operated a network of thirteen computers that provided its customers with e-mail, published information about SJG products, and stored drafts of upcoming publications. Believing that the system administrator of SJG's computers had stored evidence of crimes, the Secret Service obtained a warrant and seized two of the thirteen computers connected to SJG's network, in addition to other materials. The Secret Service did not know that SJG's computers contained publishing materials until the day after the search. However, the Secret Service did not return the computers it seized until months later. At no time did the Secret Service believe that SJG itself was involved in the crime under investigation.
The district court in Steve Jackson Games ruled that the Secret Service violated the PPA; unfortunately, the exact contours of the court's reasoning are difficult to discern. For example, the court did not explain exactly which of the materials the Secret Service seized were covered by the PPA; instead, the court merely recited the property that had been seized, and concluded that some PPA-protected materials "were obtained" during the search. Id. at 440. Similarly, the court indicated that the search of SJG and the initial seizure of its property did not violate the PPA, but that the Secret Service's continued retention of SJG's property after it learned of SJG's publisher status, and despite a request by SJG for return of the property, was the true source of the PPA violation - something that the statute itself does not appear to contemplate. See id. at 441. The court also suggested that it might have ruled differently if the Secret Service had made "copies of all information seized" and returned the hardware as soon as possible, but did not answer whether in fact it would have reached a different result in such case. Id.
Incidental seizure of PPA-protected materials on a non-suspect's computer continues to be an uncertain area of the law, in part because PPA issues are infrequently litigated. As a practical matter, agents can often avoid the seizure of PPA-protected materials on a non-suspect's computer by using a subpoena or process under ECPA to require the non-suspect to produce the desired information, as described in Chapter 3. To date, no other court has followed the PPA approach of Steve Jackson Games. See, e.g., State v. One (1) Pioneer CD-ROM Changer, 891 P.2d 600, 607 (Okla. App. 1995) (questioning the apparent premise of Steve Jackson Games that the seizure of computer equipment could violate the PPA merely because the equipment "also contained or was used to disseminate potential 'documentary materials'"). Moreover, even if courts eventually refuse to restrict the PPA to cases in which law enforcement intentionally seizes First Amendment material that is merely evidence of a crime, courts may conclude that other PPA exceptions, such as the "contraband or fruits of a crime" exception, should be read as broadly as the Guest court read the suspect exception.
The additional handful of federal courts that have resolved civil suits filed under the PPA have ruled against the plaintiffs with little substantive analysis. See, e.g., Davis v. Gracey, 111 F.3d 1472, 1482 (10th Cir. 1997) (dismissing for lack of jurisdiction PPA suit improperly filed against municipal employees in their personal capacities); Berglund v. City of Maplewood, 173 F. Supp. 2d 935, 949-50 (D. Minn. 2001) (holding that the police seizure of a defendant's videotape fell under the "criminal suspect" and "destruction of evidence" exceptions to the PPA because the tape might have contained documentary evidence of the defendant's disorderly conduct); DePugh v. Sutton, 917 F. Supp. 690, 696-97 (W.D. Mo. 1996) (rejecting pro se PPA challenge to seizure of materials relating to child pornography because there was probable cause to believe that the person possessing the materials committed the criminal offense to which the materials related), aff'd, 104 F.3d 363 (8th Cir. 1996); Powell v. Tordoff, 911 F. Supp. 1184, 1189-90 (N.D. Iowa 1995) (dismissing PPA claim because plaintiff did not have standing to challenge search and seizure under the Fourth Amendment). See also Lambert v. Polk County, 723 F. Supp. 128, 132 (S.D. Iowa 1989) (rejecting PPA claim after police seized videotape because officers could not reasonably believe that the owner of the tape had a purpose to disseminate the material to the public).
Agents and prosecutors who have reason to believe that a computer search may implicate the PPA should contact the Computer Crime and Intellectual Property Section  or the CTC in their district for more specific guidance