PRIVACY PROTECTION ACT OF 1980

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000300040004-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 20, 2016
• Document Release Date: May 21, 2007
• Sequence Number: 4
• Publication Date: September 26, 1980
• Content Type: OPEN SOURCE

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96TH CONGRESS 1 HOUSE OF REPRESENTATIVES ( REPORT
2d Session J jl No. 96-1411
PRIVACY PROTECTION ACT OF 1980
SEPTEMBER 26, 1980.-Ordered to be printed
Mr. KASTENMEIER, from the committee of conference,
submitted the following
CONFERENCE REPORT
[To accompany S. 1790]
The committee of conference on the disagreeing votes of the two
Houses-on the amendment of the House to the bill (S. 1790) to limit
governmental search and seizure of documentary materials pos-
sessed by persons, to provide a remedy for persons aggrieved by
violations of the provisions of this Act, and for other purposes,
having met, after full and free conference, have agreed to recom-
mend and do recommend to their respective Houses as follows:
That the Senate recede from its disagreement to the amendment
of the House to the bill and agree to the same with an amendment
as follows:
In lieu of the matter proposed to be inserted by the House
amendment, insert the following:
That this Act may be cited as the "Privacy Protection Act of 1980".
TITLE I-FIRST AMENDMENT PRIVACY PROTECTION
PART A-UNLAWFUL ACTS
SEC. 101. (a) Notwithstanding any other law, it shall be unlawful
for a government officer or employee, in connection with the investi-
gation or prosecution of a criminal offense, to search for or seize any
work product material 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, in or af-
fecting interstate or foreign commerce; but this provision shall not
impair or affect the ability of any government officer or employee,
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pursuant to otherwise applicable law, to search for or seize such ma-
terials, if-
(1) there is probable cause to believe that the person possess-
ing such materials has committed or is committing the crimi-
nal offense to which the materials relate: Provided however,
That a government officer or employee may not search for or
size such materials under the provisions of this paragraph if
the offense to which the materials relate consists of the receipt,
possession, communication, or withholding of such materials or
the information contained therein (but such a search or seizure
may be conducted under the provisions of this paragraph if the
offense consists of the receipt, possession, or communication of
information relating to the national defense, classified informa-
tion, or restricted data under the provisions of section 793, 794,
797, or 798 of title 18, United States Code, or section 224, 225, or
227 of the Atomic Energy Act of 1954 (42 U.S.C. 2274, 2275,
2277), or section 4 of the Subversive Activities Control Act of
1950 (50 U.S.C. 783)); or
(2) there is reason to believe that the immediate seizure of
such materials is necessary to prevent the death of, or serious
bodily injury to, or a human being.
(b) Notwithstanding any other law, it shall be lawful for a gov-
ernment officer or employee, in connection with the investigation or
prosecution of a criminal offense, to search for or seize documentary
materials, other than work product materials, possessed by a person
in connection with a purpose to disseminate to the public a newspa-
per, book, broadcast, or other similar form of public communication,
in or affecting interstate or foreign commerce; but this provision
shall not impair or affect the ability of any government officer or
employee, pursuant to otherwise applicable law, to search for or
seize such materials, if-
(1) there is probable cause to believe that the person possess-
ing such materials has committed or is committing the crimi-
nal offense to which the materials relate: Provided, however,
That a government officer or employee may not search for or
seize such materials under the provisions of this paragraph if
the offense to which the materials relate consists of the receipt,
possession, communication, or withholding of such materials or
the information contained therein (but such a search or seizure
may be conducted under the provisions of this paragraph if the
offense consists of the receipt, possession, or communication of
information relating to the national defense, classified informa-
tion, or restricted data under the provisions of section 793, 794,
797, or 798 of title 18, United States Code, or section 224, 225, or
227 of the Atomic Energy Act of 1954 (42 U.S.C. 2274, 2275,
2277), or section 4 of the Subversive Activities Control Act of
1950 (50 U.S.C. 783));
(2) there is reason to believe that the immediate seizure of
such materials is necessary to prevent the death of, or serious
bodily injury to, a human being;
(3) there is reason to believe that the giving of notice pursuant
to a subpena duces tecum would result in the destruction, alter-
ation, or concealment of such materials; or
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(4) such materials have not been produced in response to a
court order directing compliance with a subpena duces tecum,
and-
(A) all appellate remedies have been exhausted; or
(B) there is reason to believe that the delay in an investi-
gation or trial occasioned by further proceedings relating to
the subpena would threaten the interests of justice.
(c) In the event a search warrant is sought pursuant to paragraph
(4)(B) of subsection (b), the person possessing the materials shall be
afforded adequate opportunity to submit an affidavit setting forth
the basis for any contention that the materials sought are not sub-
ject to seizure.
PART B-REMEDIES, EXCEPTIONS, AND DEFINITIONS
SEC. 105. This Act shall not impair or affect the ability of a gov-
ernment officer or employee, pursuant to otherwise applicable law,
to conduct searches and seizures at the borders of, or at internation-
al points of, entry into the United States in order to enforce the cus-
toms laws of the United States.
SEC. 106. (a) A person aggrieved by a search for or seizure of mate-
rials in violation of this Act shall have a civil cause of action for
damages for such search or seizure-
(1) against the United States, against a State which has
waived its sovereign immunity under the Constitution to a
claim for damages resulting from a violation of this Act, or
against any other governmental unit, all of which shall be
liable for violations of this Act by their officers or employees
while acting within the scope or under color of their office or
employment; and
(2) against an officer or employee of a State who has violated
this Act while acting within the scope or under color of his
office or employment, if such State has not waived its sovereign
immunity as provided in paragraph (1).
(b) It shall be a complete defense to a civil action brought under
paragraph (2) of subsection (a) that the officer or employee had a
reasonable good faith belief in the lawfulness of his conduct.
(c) The United States, a State, or any other governmental unit
liable for violations of this Act under subsection (a)(1), may not
assert as a defense to a claim arising under this Act the immunity
of the officer or employee whose violation is complained of or his
reasonable good faith belief in the lawfulness of his conduct, except
that such a defense may be asserted if the violation complained of
is that of a judicial officer.
(d) The remedy provided by subsection (a)(1) against the United
States, a State, or any other governmental unit is exclusive of any
other civil action or proceeding for conduct constituting a violation
of this Act, against the officer or employee whose violation gave rise
to the claim, or against the estate of such officer or employee.
(e) Evidence otherwise admissible in a proceeding shall not be ex-
cluded on the basis of a violation of this Act.
(f) A person having a cause of action under this section shall be
entitled to recover actual damages but not less than liquidated
damages of $1,000, and such reasonable attorneys' fees and other
litigation costs reasonably incurred as the court, in its discretion,
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may award: Provided, however, That the United States, a State, or
any other governmental unit shall not be liable for interest prior to
judgment.
(g) The Attorney General may settle a claim for damages brought
against the United States under this section, and shall promulgate
regulations to provide for the commencement of an administrative
inquiry following a determination of a violation of this Act by an
officer or employee of the United States and for the imposition of
administrative sanctions against such officer or employee, if war-
ranted.
(h) The district courts shall have original jurisdiction of all civil
actions arising under this section.
SEC. 107. (a) "Documentary materials", as used in this Act, 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 me-
chanically, 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 in-
tended for use, or which is or has been used as, the means of com-
mitting z criminal offense.
(b) "Work product materials", as used in this Act, means materi-
als, other than contraband or the fruits of a crime or things other-
wise criminally possessed, or property designed or intended for use,
or which is or has been used, as the means of committing a crimi-
nal 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 ma-
terials to the public; and
(3) include mental impressions, conclusions, opinions, or the-
ories of the person who prepared, produced, authored, or created
such material.
(c) "Any other governmental unit", as used in this Act, includes
the district of Columbia, the Commonwealth of Puerto Rico, any ter-
ritory or possession of the United States, and any local government,
unit of local government, or any unit of State government.
SEC. 108. The provisions of this title shall become effective on
January 1, 1981, except that insofar as such provisions are applica-
ble to a State or any governmental unit other than the United
States, the provisions of this title shall become effective one year
from the date-of enactment of this Act.
TITLE II-ATTORNEY GENERAL GUIDELINES
SEC. 201. (a) The Attorney General shall, within six months of
date of enactment of this Act, issue guidelines for the procedures to
be employed by any Federal officer or employee, in connection with
the investigation or prosecution of an offense, to obtain documentary
materials in the private possession of a person when the person is
not reasonably believed to be a suspect in such offense or related by
blood or marriage to such a suspect, and when the materials sought
are not contraband or the fruits or instrumentalities of an offense.
The Attorney General shall incorporate in such guidelines-
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(1) a recognition of the personal privacy interests of the person
in possession of such documentary materials;
(2) a requirement that the least intrusive method or means of
obtaining such materials be used which do not substantially
jeopardize the availability or usefulness of the materials sought
to be obtained;
(3) a recognition of special concern for privacy interests in
cases in which a search or seizure for such documents would in-
trude upon a known confidential relationship such as that
which may exist between clergyman and parishioner; lawyer
and client; or doctor and patient; and
(4) a requirement that an application for a warrant to con-
duct a search governed by this Title be approved by an attorney
for the government, except that in an emergency situation the
application may be approved by another appropriate supervisory
official if within 24 hours of such emergency the appropriate
United States Attorney is notified.
(b) The Attorney General shall collect and compile information
on, and report annually to the Committees on the Judiciary of the
Senate and the House of Representatives on the use of search war-
rants by Federal officers and employees for documentary materials
described in subsection (a)(3).
SEC. 202. Guidelines issued by the Attorney General under this
Title shall have the full force and effect of Department of Justice
regulations and any violation of these guidelines shall make the
employee or officer involved subject to appropriate administrative
disciplinary action. However, an issue relating to the compliance, or
the failure to comply, with guidelines issued pursuant to this Title
may not be litigated, and a-court may not entertain such an issue as
the basis for the suppression or exclusion of evidence.
And the Senate agree to the same.
ROBERT W. KASTENMEIER,
ROMANO L. MAZZOLI,
HERBERT E. HARRIS,
LAMAR GUDGER,
TOM RAILSBACK,
HAROLD S. SAWYER,
CARLOS J. MOORHEAD,
Managers on the Part of the House.
BIRCH BAYH,
EDWARD M. KENNEDY,
HOWARD M. METZENBAUM,
DENNIS DECONCINI,
HOWELL HEFLIN,
STROM THURMOND,
ORRIN G. HATCH,
CHARLES MCC. MATHIAS, Jr.,
ALAN SIMPSON,
Managers on the Part of the Senate.
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JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF
CONFERENCE
The managers on the part of the House and the Senate at the
conference on the disagreeing votes of the two Houses on the
amendment of the House to the bill (S. 1790) to limit governmental
search and seizure of documentary materials possessed by persons,
to provide a remedy for persons aggrieved by violations of the pro-
visions of this act, and for other purposes, submit the following
joint statement to the House and the Senate in explanation of the
effect of the action agreed upon by the managers and recommend-
ed in the accompanying conference report:
The House amendment struck out all of the Senate bill after the
enacting clause and inserted a substitute text.
The Senate recedes from its disagreement to the amendment of
the House with an amendment which is a substitute for the Senate
bill and the House amendment. The differences between the
Senate bill, the House amendment, and the substitute agreed to in
conference are noted below, except for clerical corrections, con-
forming changes made necessary by agreements reached by the
conferees, and minor drafting and clarifying changes.
The House amendment changed the title to delete the phrase,
"engaged in first amendment activities" describing persons possess-
ing documentary materials. This was done due to the ambiguous
meaning of "first amendment activities" and the inclusion of guide-
lines in the bill recognizing the privacy interests of nonsuspect
third parties. The Conference substitute adopts the House amend-
ment.
The House amendment replaced the section dealing with reme-
dies to violations to this act. The Conference substitute adopts the
Senate language with the exception of the provision which permits
punitive damages in Sec. 106(f).
The House amendment changed the definition of documentary
materials in Sec. 107 to include mechanically, magnetically or elec-
tronically recorded cards, tapes, or discs. The Conference substitute
adopts the House amendment with the understanding that files
which contain reporters notes and interviews are considered to be
included to the extent that such files contain protected materials.
The Conference substitute adopts the Senate language. The defi-
nition of "work product materials" in section 107(b) is intended to
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limit the protections in Section 101(a) to those documentary materi-
als whose very creation arises out of the purpose of conveying in-
formation to the public and which involve some measure of origi-
nal contribution on the part of the person whose intent is that the
materials be disseminated to the public. The requirement that
"work product materials" include the "mental impressions, conclu-
sions, opinions, or theories" of such person borrows from a provi-
sion in Rule 26(b)(3) of the Federal Rules of Civil Procedure (Gener-
al Provisions Governing Discovery). This provision emphasizes the
mental processes employed by attorneys in creating their own
"work product". While there is a specific exception in 107(b) for
certain kinds of materials, such as contraband or the fruits of a
crime, it is intended that the definition of "work product" is such
that this evidence would rarely fall within this definition in any
event.
The House amendment contained no date of enactment clause.
The Conference substitute adopts the Senate language, except it
alters the date of enactment from October 1, 1980 to January 1,
1981. The enactment clause also states that provisions applicable to
state and local governments will become effective one year after
the date of enactment.
The House amendment included Attorney General Guidelines
(Title II) in a slightly different form from the Senate bill. The dif-
ferences in the House amendment included the fuller explanation
of "privacy interests" in Sec. 201(a)(3), and a requirement that a
U.S. Attorney approve an application for a warrant in most cases.
The Conference substitute adopts the House amendment.
Four standards are established which must be incorporated in
the development of the guidelines. Paragraph 1 of section 201(a)
mandates a recognition of the personal privacy interests of the
person possessing the materials sought. Paragraph 2 requires that
the least intrusive means of obtaining the materials be employed
which do not substantially jeopardize the availability or usefulness
of the materials sought. The Committee expects these two stand-
ards to be translated into guidelines which will require an informal
request or a subpoena wherever there is an opportunity for an ef-
fective alternative to search and seizure. In other words, the princi-
pal exception which would allow the use of a search warrant as
oppposed to a request or a subpoena is where there is sufficient
reason to believe that the documentary materials sought would be
destroyed if a subpoena were to be issued, or when immediate seiz-
ure of the materials is required to prevent substantial reduction in
their usefulnesss. Destruction of evidentary materials would be
most likely to occur in those cases where a close, sympathetic rela-
tionship exists between the possessor of the materials and the sus-
pect, or where the suspect holds some form of dominance over the
possessor. This type of close relationship is most frequently found
in marital or family settings, and therefore, establishes the basis
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for the exclusion of those "related by blood or marriage to such a
suspect" from the protections of the guidelines.
The third standard to be incorporated in guidelines as provided
in paragraph 3 is a recognition of special concern for the privacy
interests represented in a known, professional, confidential rela-
tionship, such as doctor-patient, attorney-client, or clergyman-pa-
rishioner. Testimony on Standard Daily legislation before the Com-
mittee convinced the members of the extreme sensitivity of the re-
lationship, for example, between a psychiatrist and his or her pa-
tient, and the harm which can be done by an intrusive governmen-
tal seizure of confidential information, and police rummaging
through confidential files. The reference to these three relation-
ships in the statute is not intended to be an exclusive reference.
Other important confidential relationships such as exist between
psychologist and client, psychiatrist, social worker and client and
psychiatric nurse and client shall be recognized. Further, it is the
intent of Congress that the phrase "doctor-patient" be construed
broadly to include all doctor-like therapeutic relationships.
The fourth standard to be incorporated in the guidelines is a spe-
cific requirement that any application for a warrant to conduct a
search governed by this Title be approved by an Attorney for the
Government. Only in rare and genuine emergencies could another
appropriate supervisory official approve such an application and
then only if within 24 hours of such emergency the appropriate
U.S. Attorney is notified. If is the intent of Congress that an accu-
rate and up-to-date record of any such emergencies be maintained.
The searches of those in privileged relationships which have
been brought to the Committee's attention have all been executed
at the state or local level. The Committee has been struck by the
lack of definitive, federal data available in this sensitive area, how-
ever, and therefore in subsection (b) of section 201 has required the
Attorney General to collect and compile information on the use of
search warrants by federal officers or employees for documentary
materials in the possession of those in professionally confidential
relationships. These data are to be reported annually to the Judici-
ary Committees of the House and Senate acting in their oversight
capacity over the Department. Section 202 provides that guidelines
issued by the Attorney General shall have the full force and effect
of Department of Justice regulations and that appropriate disci-
plinary action shall be fully initiated against any errant officer or
employee. It is the view of Congress that the Office of Professional
Responsibility of the Department of Justice shall be called upon to
investigate and act upon any alleged violation of the guidelines de-
veloped pursuant to this act.
This section also provides that noncompliance with guidelines
would not be litigable, and the evidence obtained through a viola-
tion of guidelines would not be subject to the exclusionary rule,
and that the Federal courts would be without jurisdiction over any
claim based solely on a failure to follow such guidelines.
Non-litigability provisions similar to subsection 201(c) are found
in section 205 of S. 1722, the proposed revision of the federal crimi-
nal code, which sets forth factors to be considered in the exercise of
concurrent federal jurisdiction, and in section 537a of S. 1612, the
proposed FBI charter legislation.
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Absent explicit language, it is arguable that judicial review of
the adequacy of guidelines would be available under section 704 of
the Administrative Procedures Act, 5 U.S.C. ? 704. However, the
well-established "presumption of reviewability" of Abbott Laborato-
ries v. Gardner, 387 U.S. 136 (1967) is subject to an exception under
section 701(a) of the APA, i.e., where the "statute precludes judicial
review".
Whether the exclusionary rule could be invoked absent the lan-
guage of this section is debatable. The Supreme Court in United
States v. Caceres, 440 U.S. 741 (1978) did not resolve the issue of
whether the violation of regulations gives rise to the application of
the exclusionary rule. Dicta in Caceres might be interpreted to
allow exclusion of evidence if the violation of guidelines rises to the
level of a statutory violation, but whether a defendant would have
the requisite standing to invoke the rule for such a violation in the
search of a third party without an explicit congressional authoriza-
tion remains highly doubtful. In any case, the explicit language of
subsection (c) forecloses such a possibility.
It was the position of the Department of Justice, in which the
Committee concurred, that guidelines should not create the oppor-
tunity for litigation which would be both burdensome and unneces-
sary to achieve the purposes of the guidelines. Title II of S. 1790
will assure that the present practices, of restraint by federal offi-
cers in the area of third party searches, become an articulated De-
partmental policy, binding on all federal law enforcement officers.
The Committee expects that under the guidelines any officer who
violates the guidelines will be subject to disciplinary action by the
Department, and that the Department will enforce the guidelines
fully in good faith compliance with the policy toward third party
searches that they express.
ROBERT W. KASTENMEIER,
ROMANO L. MAZZOLI,
HERBERT E. HARRIS,
LAMAR GUDGER,
TOM RAILSBACK,
HAROLD S. SAWYER,
CARLOS J. MOORHEAD,
Managers on the Part of the House.
BIRCH BAYH,
EDWARD M. KENNEDY,
HOWARD M. METZENBAUM,
DENNIS DECONCINI,
HOWELL HEFLIN,
STROM THURMOND,
ORRIN G. HATCH,
CHARLES MCC. MATHIAS, Jr.,
ALAN SIMPSON,
Managers on the Part of the Senate.
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