By  Kathleen A. Kirby & Scott W. Woodworth, Wiley Rein LLP

 

Two recent cases demonstrate the continued importance to journalists of the Privacy Protection Act (PPA).  The first is the now famous “stolen” or “lost” iPhone case.  As has been well publicized, technology blog Gizmodo was in possession of a yet to be released Apple iPhone, which Gizmodo’s editor, Jason Chen, wrote about on Gizmodo’s blog.  On April 23, 2010, authorities in California executed a search warrant at Mr. Chen’s home.  According to published reports, the authorities seized a number of computers and other electronic items from Mr. Chen (Mr. Chen had already returned the iPhone to apple).  Mr. Chen has not been charged with any crime to date and it is unclear if he will ever be charged with a crime.  This case, however, raises important issues under the PPA.  If Mr. Chen’s work as a technology blogger falls within the scope of the PPA’s protections for journalists, the execution of the search warrant could very well have been illegal.

The PPA was passed in response to a Supreme Court case (Zurcher v. Stanford Daily) that in essence held that the First Amendment did not protect journalists from avoidable search warrants.  Authorities had been (and as demonstrated by these recent cases, still are) using search warrants to gather information from journalists that they have been unable to obtain through other means.  For example, in the Zurcher case, police were seeking photos of a demonstration at which police officers were injured.  In the KUAM case discussed below, police used a search warrant to find a document that they believed would contain the identity of a confidential source.

The PPA makes it illegal (except in certain circumstances) for the government to “to search for or seize any work product materials [or documentary materials, other than work product materials] possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”  The PPA defines “documentary materials” as materials used in this chapter, means materials upon which information is recorded, and includes, but is not limited to, written or printed materials, photographs, motion picture films, negatives, video tapes, audio tapes, and other mechanically, magnetically or electronically recorded cards, tapes, or discs, but does not include 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.

The PPA defines “work product materials” as materials used in this chapter, means materials, other than 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, and (1) in anticipation of communicating such materials to the public, are prepared, produced, authored, or created, whether by the person in possession of the materials or by any other person; (2) are possessed for the purposes of communicating such materials to the public; and (3) include mental impressions, conclusions, opinions, or theories of the person who prepared, produced, authored, or created such material.

The purpose of the PPA is to compel authorities to use less invasive subpoenas to obtain information to ensure that journalists are not subject to avoidable searches and can continue to protect the confidentiality of their sources.  The PPA has exceptions (national security, child pornography, imminent bodily injury or death, to name a few), but if Mr. Chen sues the authorities, his case could turn on whether his work as a blogger falls within the PPA’s scope of protection.  As demonstrated above, the scope of the PPA’s protections is quite broad, but there does not appear to be a case to date that expressly holds that a blogger is subject to the protections of the PPA.

The second recent case with PPA implications involves the search of KUAM-TV, the NBC and CBS affiliate in Guam.  The station recently produced a story regarding a police trainee who did not pass a polygraph examination.  The story was based on a document the station received from a confidential source (presumably within the police department).  According to KUAM’s website, “at 4:15 Wednesday afternoon 12 agents from GPD's Criminal Investigation Division served their warrant to our studios, kicked our entire staff out of our office, and commanded us to turn off our cameras.”  KUAM has sued the Guam Police Department in court under the PPA.  The case is pending.

The iPhone case demonstrates the evolving nature of the media and the need to ensure that laws that protect the journalists keep up with the ever changing media landscape.  The KUAM case is troubling because it involved traditional media and demonstrates that, despite the fact that the PPA has been in existence since 1980, traditional journalists are not immune from unlawful searches.  Both cases demonstrate the continued importance to journalists of the PPA.