A prosecutor, flanked by at least seven police officers, presented student journalists at James Madison University’s student newspaper The Breeze with an uncomfortable choice: provide copies of unpublished photographs of a block party that led to violence, or the officers would seize all the computers in the newsroom. Facing the shutdown of the entire publication, the editor let the prosecutor copy hundreds of photos — some of them unrelated to the party — to a CD and leave.
It should. There is a lot wrong with this picture, not the least of it being that it took seven cops to deliver an ultimatum. Just picturing the scene in my head puts them a banjo and a washboard away from living down to every stereotype of rural southern justice. (Maybe the prosecutor thought she was hot on the trail of “them Duke boys!”)
The more pressing problem, however, is that the search appears to have been in violation of federal law. While the prosecutor had obtained a warrant, the warrant did not comply with the Privacy Protection Act, or PPA.
The PPA is a federal law that prevents law enforcement from searching newsrooms or seizing a journalist’s work product except in a few explicitly listed circumstances. And in all of those circumstances, a judge has to issue a warrant that specifies which exceptional situation justifies the search.
For example, the judge would have to state that there’s reason to believe the information presented a risk to national security; or that the journalist is committing a crime with the material being taken (e.g., child pornography); or that someone’s death will occur if the information is not immediately seized.
While the block party apparently was violent, I somehow suspect it does not present a serious risk to national security. In fact, the warrant didn’t state anything resembling an interest that would satisfy the federal requirements under the Privacy Protection Act.
It would be convenient to believe that the prosecutor merely did not know federal law prevented such a seizure; but in fact, the student editors provided the prosecutor with written material explaining the Privacy Protection Act. A person of ordinary intelligence and literacy should be able to look at the plain language of the act and realize that a run-of-the-mill search warrant doesn’t meet the standard.
This is about more than a bunch of photos of a block party. The Privacy Protection Act exists because law enforcement doesn’t have the right to conscript journalists into serving as field investigators. If sources of information can’t trust that telling a journalist is different than telling the police, journalists won’t be able to find sources that help bring wrongdoing to light.
The net result of searches like this is that more crimes will go unpunished because people with the information that could bring those crimes to light will never come forward to the media. The Wall Street whistleblower and the reformed burglar who wants to show people how to protect themselves will never agree to tell their stories to a journalist if law enforcement can show up on that journalist’s doorstep with seven cops and an ultimatum any time they please.
The way this is “supposed” to happen — and I put that in quotes because, really, this isn’t supposed to happen — is that law enforcement issues a subpoena to the journalist to show up in court with the pictures. The journalist then has the opportunity to argue that law enforcement can’t seize the material without exhausting other sources of information.
Of course, this prosecutor likely could never show that, considering that there are many sources of this information that are already published. And perhaps that’s why she resorted to a show of force and intimidation tactics.
And before someone says “oh well, college newspapers are different than other newspapers,” let me point out that the Privacy Protection Act was passed in the wake of a search of a college newsroom. The Act’s entire raison d’être was to prevent the type of search that took place here.
The editors at The Breeze have some good lawyers helping them, and hopefully, they will get a judge to weigh on this issue early next week. I’ll keep you posted. But returning the photographs won’t undo the damage this search has done to our faith in public officials. And if the prosecutor attempts to use these photographs in a prosecution, the damage done to the case by the use of improperly obtained evidence won’t be easy to fix, either.
Reprinted with permission from the Huffington Post.