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Privacy Rights in the Digital Age

Privacy Protection Act, 42 U.S.C. § 2000aa et seq.

by Eric B. Easton

Legislation enacted on October 13, 1980, to protect the work product and other documents held by persons engaged in public communications from searches and seizures by police and other government officers. The purpose of the act is to prevent the use of search warrants to interfere with the editorial integrity of the news media and other First Amendment actors without providing those actors an opportunity to seek judicial protection for materials to which the government is not entitled. The act also provides civil damages for violations.

The statute was enacted by Congress in reaction to the Supreme Court decision in Zurcher v. Stanford Daily. In April 1971, following a student demonstration against the Vietnam War that included occupation of the Stanford University Hospital in Palo Alto, California, police obtained a warrant to search the offices of the Stanford Daily for the purpose of finding photographs of students who may have beaten police officers and committed other violations. Although nothing was seized in the fifteen-minute search, the newspaper sued for a declaration that use of a search warrant under these circumstances violated the First Amendment and for an injunction against seeking, issuing, or executing such a warrant.

The newspaper argued that, because there was no evidence that anyone on the Daily staff had committed a crime, a subpoena duces tecum, requiring the newspaper to produce the evidence sought or explain why it need not, should have been used instead of a search warrant. The police argued that the search was lawful in every respect under state law, which provided for the use of search warrants wherever the police had probable cause to believe evidence might be found to show the commission of a felony or to identify the perpetrator.

The U.S. District Court agreed with the newspaper, holding that third parties, that is, persons who were not suspected of criminal conduct, were entitled to greater protection, particularly when First Amendment interests were involved. The court said that, unless the magistrate receives a sworn affidavit establishing proper cause to believe that the evidence in question will be destroyed, or that a subpoena duces tecum is otherwise “impractical,” a search of a third party for materials in his or her possession is unreasonable per se and therefore violates the Fourth Amendment. The court awarded attorney's fees to the newspapers.

The U.S. Court of Appeals for the Ninth Circuit affirmed, rejecting the government's argument that its good faith in securing what turned out to be an invalid warrant insulated it from liability. While good faith might immunize government officials from liability for money damages, the court said, it did not bar attorney's fees where declaratory and injunctive relief was sought.

In a 5–3 decision on May 31, 1978, however, the U.S. Supreme Court reversed the decisions of the lower courts, holding that nothing in the Fourth Amendment precluded the issuance of a warrant to search for evidence simply because the owner of the premises was not suspected of a crime. The showings required for the proper issuance of a search warrant—which must be applied “with particular exactitude” when First Amendment interests would be endangered—were adequate to protect the ability of the press to gather and disseminate news. Nothing limits the police to using a subpoena duces tecum in gathering evidence from third parties, Justice Byron White wrote in the majority opinion. Justices Potter Stewart, Thurgood Marshall, and John Paul Stevens dissented.

Congress reacted to the Zurcher decision by introducing several bills to protect First Amendment activity from search warrants. A compromise was reached between House and Senate negotiators in late September 1980 and became law in mid-October. The statute distinguishes between “work product” and “other documents” and establishes somewhat different rules for each.

With respect to “work product,” such as notes, drafts, or articles produced for ultimate dissemination to the public, the act provides that it is unlawful for a government officer to search for or seize any 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.” An exception is made where there is probable cause that the person who has the material has committed or is committing a crime other than withholding the information sought. Even then, a search warrant can be used where the material involves the national defense, including classified and otherwise restricted documents, or child pornography or exploitation. Another exception is made when there is reason to believe that the immediate seizure of the material is necessary to prevent the death of, or serious bodily injury to, a human being.

With respect to “other documents,” the act affords exactly the same protection, but additional exceptions are provided. For example, an additional exception arises when there is reason to believe that the notice one gives of a subpoena would result in the destruction, alteration, or concealment of the materials sought. Another exception arises when the materials have not been produced in response to a court order directing compliance with a subpoena after all administrative remedies have been exhausted and there is reason to believe that further delay would threaten the interest of justice. In that case, however, the person who has the material must be given an opportunity to submit an affidavit explaining why the material should not be subject to seizure.

The act also gives anyone aggrieved by a search or seizure in violation of these provisions a civil cause of action for damages against the government or the officers involved, except that an officer who reasonably believes that the conduct was lawful will not be held personally liable. The successful plaintiff can be awarded $1,000 or actual damages, whichever is greater, and reasonable costs and attorney's fees, but no prejudgment interest.

The act also required the U.S. Attorney General to issue guidelines for procedures to be employed by any federal officer in order to comply with provisions of the law and report the use of search warrants to Congress.

Further Reading

1 

“The Privacy Protection Act of 1980.” Electronic Privacy Information Center. July 25, 2003. https://epic.org/privacy/ppa/.

2 

Reid, Beth Ann. A Manual for Complying with the Freedom of Information Act and the Privacy Protection Act. Richmond, VA: Department of Management Analysis and Systems Development, 1980.

3 

Reporters Committee for Freedom of the Press. “Confidential Sources and Information,” in First Amendment Handbook. 7th ed. (2011). https://www.rcfp.org/first-amendment-handbook.

4 

Uzelac, Elizabeth B. “Reviving the Privacy Protection Act of 1980.” Northwestern University Law Review 107, no. 3 (April 2013): 1437.

See also: First Amendment to the U.S. Constitution; Fourth Amendment to the U.S. Constitution; Search warrants; Subpoenas

Citation Types

MLA 9th
Easton, Eric B. "Privacy Protection Act, 42 U.S.C. § 2000aa Et Seq.." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0169.
APA 7th
Easton, E. B. (2016). Privacy Protection Act, 42 U.S.C. § 2000aa et seq.. In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
Easton, Eric B. "Privacy Protection Act, 42 U.S.C. § 2000aa Et Seq.." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed May 30, 2026. online.salempress.com.