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Privacy Protection Act of 1980

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Citation Edit

Privacy Protection Act of 1980 (PPA), Pub. L. No. 96-440, 94 Stat. 1879 (Oct. 13, 1980), codified at 42 U.S.C. §2000aa et seq. (full-text).

Overview Edit

The Act limits law enforcement's use of a search warrant to search for or seize certain materials[1] possessed by a person for the purpose of public dis­semination. The intent of this law is to protect publishers[2] from having First Amendment materials seized unless the individual is suspected of harboring illicit material.

Generally, the Act prohibits the seizure of publication materials by the use of a search warrant with some exceptions. Normally, the government must issue a subpoena.

Factors to be considered Edit

In assessing the impact of PPA on an investigation, the following factors should be considered:

  • Is the material covered by PPA? PPA-covered material is of two general types:
    • Work-product material created for the purpose of disseminating to the public through a public form of communication[3];
    • Documentary materials possessed for the purpose of disseminating to the public through a public form of communication[4].
  • Is the possessor of the material covered by PPA? PPA only applies to protect publish­ers that are innocent third parties.[5] If the suspect has commingled the publications material with the contraband, a law enforcement agent who seizes the publications material incident to the seizure of the contraband will not be liable under PPA.[6] However, a law enforcement agent who searches the actual publications material may be liable unless the search is incidental to the search for the contraband material.

Exceptions Edit

PPA's prohibition on the use of a search warrant does not apply in the following circumstances:

  • Materials searched for or seized are contraband, fruits, or instrumentalities of the crime.
  • There is reason to believe that the immediate seizure of such materials is necessary to prevent death or serious bodily injury.
  • Probable cause exists to believe that the person possessing the materials has commit­ted or is committing a criminal offense to which the materials relate.[7]

If evidence of a crime is commingled on a computer with PPA-protected materials, issues concerning proper scope and execution of a search warrant will arise. Recent cases indicate that the courts are limiting the scope of PPA protection to people who are not suspected of committing a crime. Evidence seized in violation of PPA alone will not be suppressed.

Civil damages are the exclusive remedy for violation of PPA. PPA does not contain a pro­vision to suppress evidence obtained in violation of the act.[8]

References Edit

  1. These protected materials may be either "work product" (i.e., materials created by the author/publisher) or "documentary materials" (i.e., any materials that document or support the work prod­uct). For example, a person who is creating an online newsletter may possess interview notes that could be considered "documentary materials"; the text of the newsletter to be pub­lished could be considered a "work product."
  2. The term publisher is not limited to the traditional press and may include individuals who have an intent to publish material or have their own website.
  3. 42 U.S.C. §2000aa-7(b)
  4. 42 U.S.C. §2000aa-7(a)
  5. See S. Rep. No. 96-874 at p. 4 (1980).
  6. Guest v. Leis, 255 F.3d 325 (6th Cir. 2001) (full-text).
  7. This exception does not apply where the mere possession of the materials constitutes the offense except for the possession of child pornography and certain government information.
  8. Similar to 42 U.S.C. §1983, an officer sued in a personal capacity is entitled to a reasonable good faith defense. 42 U.S.C. §2000aa-6. In addition, the officer may only be sued in his or her individual capacity if the government has not waived sovereign immunity.

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