DOCUMENTARY MATERIALS PRIVACY PROTECTION ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000300040007-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 20, 2016
• Document Release Date: May 21, 2007
• Sequence Number: 7
• Publication Date: September 24, 1980
• Content Type: OPEN SOURCE

Approved For Release 2007/05/23: CIA-RDP8-9-00003R000300040007-0
September 24, 1980 CONGRESSIONAL RECORD-SENATE
stituted in the district courts.
Under these circumstances, it makes
good sense in terms of the availability
of judicial resources to transfer some of
the cases now instituted in the crowded
*district courts to the underutilized cus-
toms courts.
Another existing defect is that the
court is hamstrung in exercising its re-
'sponsibilities because, as a matter of
settled law, it lacks critical equitable
powers; it may only entertain cases and
controversies which have often reached
a degree of ripeness that could make
equitable relief too late to be useful, and
it cannot fashion equitable remedies
when appropriate. The proposed Cus-
toms Courts Act of 1980 resolves this
long-standing problem by granting the
court full equitable powers. This provi-
sion will provide a forum for litigants
seeking immediate relief in matters aris-
ing from import transactions. At pres-
ent, litigants can only hope the district
court will find subject matter jurisdic-
tion and grant an equitable remedy.
In conclusion, S. 1654 would make it
clear that the Customs Court-renamed
the U.S. Court of International Trade-
possesses broad jurisdiction to entertain
certain civil actions arising out of import
transactions. In addition, the Customs
Courts Act of 1980 would make it clear
that, in those civil actions within its
jurisdiction, the court possesses the au-
thority to grant the appropriate relief
when required to remedy an injury.
These provisions, when coupled with
those contained in the Trade Agreements
Act of 1979, make it clear to those who
suffer -an alleged injury in this area, that
they may seek redress in a court with
confidence that their case will be heard
on the merits-not decided upon juris
dictional grounds and that,.-ifthey are
successful, the Court of International
Trade will be able to afford them the re-
lief which is appropriate and necessary
to make them whole.
This legislation will offer the interna-
tional trade community, as well as do-
mestic interests, consumer groups, labor
unions and other concerned citizens, a
vastly improved forum for judicial re-
view of administrative actions of the U.S.
Customs Service and other Government
agencies dealing with imported mer-
chandise.
The' language under consideration at
this time is largley an improvement over
the original provisions of S. 1654. How-
ever, the one glaring exception is the
political affiliation requirement. This
provision, which is also current law,
states that no more than five of the nine
members of the court may be from the
same political party. I am strongly op-
posed to this measure, but I am willing
to accept passage of the bill with it in-
tact, in light of the Imminent end of
the session.
I view this legislation as too important
to risk a time-consuming conference
over the single provision provoking dis-
agreement between the House and Sen-
ate. As you may be aware, the Customs
Court Act of 1980 complements the Trade
Agreements Act of 1979, which took effect
is _-of great importiaxice cL e
, =. _ t!er,. this, WIN,
=Bstr , . a
seriously consider sponsori legislation on th , NCw I~ogik;Co (nty Lawyers Aa -
next session to correct w i-at I wide - on t e u: ustomsCourt aid
to be an inappropriate requirement obi out of Customs a lci Patent
court established .under article III a s I c %i we have received
It is inappropriate to have apolitical fui g stlons from the U.S. Inter-
amuation requirment for Customs
Court's judges for several reasons. First
of all, the Customs Court is and would=-
continue to be unique among artlcl
courts,in being subject to such ateu
ment. The requirement is a vestige.o'a"
provision originally applied to the board
of general appraisers-the precursor for
cisioil, I would like to-urge my
C eegiles to support S. 1654, the Cus-
toms Courts. Act of 1980. It is a long over-
due and very necessary piece of legisla-
tion.S . -
Mi ROBERT C. BYRD. Mr. President,
of be if of Mr. DECoNciNi, I move that
t ~ o cur n the amendment of
the Customs Court-established in 1890
as a quasi-administrative, quasi-judicial
body to review classification and evalua-
tion of imports.
A political affiliation balancing require-
ment may make sense in the context of
appointees to regulatory boards and com-
missions, since such officials have rela-
tively short terms, and are charged with
making policy decisions often heavily
tinged with political considerations. But
article III judges appointed for life, who
make decisions on the basis of assessment
of facts"and interpretation of law, should
be appointed on the basis of merit alone,
and without regard to any political con-
siderations.
I believe that the retention of the po-
litical affiliation requirement will only
tend to politicize the court-a result at
odds with the bill's laudable goals of en-
hancing the importance and effectiveness
In addition, I would. like the record to
clearly indicate that the elimination of
this requirement is supported by the Ad-
ministrative Conference of the United
States, the American Bar Association, the
Association of the Customs Bai the Com-
mittee on Customs Laws of the-New-York
County Lawyers' Association , and the
U.S. Customs Court.
At the request of the Senate Finance
Committee, I would like to add one point
of clarification regarding section 604 of
the act. That section is not intended to
imply that the so-called substantial evi-
dence test applies to public interest de-
terminations of the U.S. International
forts, have helped make this bill a reality
so it could come to the floor today.
Michael Altier, counsel of the subcom
deal of the credit for the immense
addition, I would like to thank Ann
Woodley for all of her recent technical
mally thank David Cohen, director of the
administration, specifically the Justice
Department and the Commerce pep*iit+
MMIRT.C. BYRD. Mr. President,
I move to reconsider.the vote by which
the-inotion was agreed to.
VACY PROTECTION ACT
Mr, ROBERT C. BYRD. Mr. President,
on=behalf of Mr. KENNEDY, I ask that
the Chair ?lay before the Senate a mes-
sage from the House of Representatives
on S -1790.
The Presiding `Officer laid before the
Senate the following message from the
House of Representatives:
Resolved=--That the ` bill from the Senate
Xacy Protection Act of 1980' , do pags
w e~lal~vu;Lug.-.amendments:__, _:
Strike out all after the enacting clause,
and insert: That this Act may be cited as
the "Documentary Materials Privacy Pro-
tection Act.cf 1980".
^'= UNLAWFUL ACTS
3i c,.^2. (a)' Notwithstanding any other
law, it-shall be unlawful for a government
officrer or 'employee, in connection with the
oth'_er ;similar form of public communica-
tfon . In or affecting interstate or foreign
visignsof this aragraph if the offense to
which, the materials relate consists of the
receipt possession, communication, or with-
holding of such materials or the' information
-tfonal'defene, classified information, or re-
str eted=data undei 18- U.S.C. 793; 18 U.S.C.
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S1396
(2) there is reason to believe that the im-
mediate seizure of the materials is necessary
to prevent the death of or serious bodily
injury to a human being.
(b) 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 documentary materials,
other than work product, possessed by a per-
son in connection with a purpose to dissemi-
nate to the public a newspaper, book, broad-
cast, or other similar form of public com-
munication, in or affecting interstate or for-
eign commerce; but this provision shall not
impair or affect the ability of any govern-
ment officer or employee, pursuant to other-
wise applicable law, to search for or seize
such materials, if-
(1) there is probable cause to believe
that the person possessing the materials has
committed or is committing the criminal
offense to which the materials relate: Pro-
vided, however, That a government officer or
employee may not search for or seize mate-
rials described in subsection 2(b) under the
provisions of this paragraph if the offense to
which the materials relate consist of the
receipt, possession, communication, or with-
holding of such materials or the information
contained therein (but such a search or
seizure may be conducted under the provi-
sions of this paragraph if the offense con-
sists of the receipt, possession, or communi-
cation of information relating to the na-
tional defense, classified information, or re-
stricted data under 18 U.S.C. 793, 18 U.S.C.
794, 18 U.S.C. 797, 18 U.S.C. 798, 42 U.S.C. 2274.
42 U.S.C. 2275. 42 U.S.C. 2277, or 50 U.S.C.
783); or
(2) there is reason to believe that the
immediate seizure of the materials is neces-,
sary to prevent the death of or serious bodily
injury to a human being; or
(3) there is reason to believe that the giv-
ing of notice pursuant to a subpena duces
teeua3 would result in the destruction, alter-
ation, or concealment of the materials; or
(4) the materials have not been produced
in response to a court order directing com-
pliance with a subpena duces tecum, and
(A) all appellate remedies have been ex-
hausted; or
(B) there is reason to believe that the de-
lay in an investigation or trial occasioned
by further proceedings relating to the sub-
pens, would threaten the interests of justice.
In the event a search warrant is sought
pursuant to this subparagraph, 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 subject
to seizure.
INAPPLICABILITY OF THIS ACT TO SEARCHES AND
SEIZURES CONDUCTED TO ENFORCE THE CUS-
TOMS LAWS OF THE UNITED STATES
SEC. 3. This Act shall not impair or affect
the ability of a government officer or em-
ployee, pursuant to otherwise applicable law,
to conduct searches and seizures at the bor-
ders of or at international points of entry
into the United States in order to enforce
the customs laws of the United States.
REMEDIES
SEC. 4. For violations of this Act by an
officer or employee of the United States, there
shall be a cause of action against the United
States as provided by section 1346(b) and
chapter 171 of title 28, United States Code.
Remedies against the United States provided
by this section shall be the exclusive remedy
or sanction, Including the Exclusionary
Rule.
DEFINITIONS
SEC. S. (a) "Documentary materials", as
used in this Act, means materials upon
which information is recorded, and includes,
but it not limited to, written or printed
materials, photographs, motion picture films,
CONGRESSIONAL RECORD-SENATE September 24, 1980
negatives, video tapes, audio tapes, and other
mechanically, magnetically, or electronically
recorded cards, tapes, or discs, but does not
mean contraband, 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.
(b) "Work product", as used in this Act,
means any documentary materials created by
or for a person in connection with his plans,
or the plans of the person creating such ma-
terials. to communicate to the public, except
such work product as constitutes contraband
or the fruits 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.
(c) "Any other governmental unit", as
used in this Act, Includes the District of Co-
lumbia, the Commonwealth of Puerto Rico,
any territory or possession of the United
States, and any local government, unit of
local government, or any unit of State gov-
ernment.
TITLE II-ATTORNEY GENERAL
GUIDELINES
SEC. 201. (a) The Attorney General shall,
within six months of date of enactihent of
this Act, issue guidelines for the procedures
to be employed by any Federal officer or
employee, in connection with the investiga-
tion or prosecution of an offense, to obtain
documentary materials in the private pos-
session 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 Attor-
ney General sha11 incorporate in such guide-
lines-
(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 jeopar-
dize the availability or usefulness of the ma-
terials 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 intrude
upon a known confidential relationship such
as that which may exist between clergy-
man and parishioner; lawyer and client; or
doctor and patient; and
(4) a requirement that an application for
a warrant to conduct 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 twenty-four hours of such emer-
gency the appropriate United States attor-
ney is notified. -
(b) The Attorney General shall collect and
compile information on, and report annu-
ally to the Committees on the Judiciary of
the Senate and the House of Representatives
on the use of search warrants by Federal
officers and employees for documentary ma-
terials 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 guide-
lines shall make the employee or officer in-
volved subject to appropriate administrative
disciplinary action. However, an issue relat-
ing to the compliance, or the failure to cbm-
ply, with guidelines issued pursuant to this
title may not be litigated, and a court may
not entertain such a issue as the basis for the
suppression or exclusion of evidence.
Amend the title so as to read: "An Act to
limit governmental search and seizure of
documentary materials possessed by persons,
to provide a remedy for persons aggrieved by
violations of the provisions of this Act, and
for other purposes:,.
- Mr. ROBERT C. BYRD. Mr. President,
on behalf of Mr. KENNEDY, I move that
the Senate ilsi on its amendmentsand
agre the con erence r ues e3 by the
Ouse 0 the disagree] votes o1e two
Houses -ant, that e chair e authorized
-to -mVpo a co on tFe part of
Se.-
The motion was agreed to, and the
President Officer (Mr. LEvxN) appointed
Mr. KENNEDY, Mr. BAYH, Mr. DECONCINI,
Mr. HEFLIN, Mr. METZENSAUM, Mr. THUR-
MOND, Mr. HATCH, Mr. SIMPSON, and Mr.
MATHIAS conferees on the part of the
Senate.
CLASSIFIED INFORMATION CRIM-
INAL TRIAL PROCEDURES ACT
Mr. ROBERT C. BYRD. Mr. Presi-
dent, on behalf of Mr. KENNEDY, I ask
that the Chair lay before the Senate a
message from the House of Representa-
tives on S. 1482.
The PRESIDING OFFICER laid be-
fore the Senate the following message
from the House of Representatives:
Resolved, That the bill from the Senate
(S. 1482) entitled "An Act to provide certain
pretrial, trial, and appellate procedures for
criminal cases involving classified informa-
tion", do pass with the following amend-
ments:
Strike out all after the enacting clause,
and insert: That this Act may be cited as
the "Classified Information Criminal Trial
Procedures Act".
TITLE I-PROCEDURES FOR DISCLOSURE
OF CLASSIFIED INFORMATION IN CRIM-
INAL CASES
PRETRIAL CONFERENCES
SEC. 101. At any time after the filing by
the United States of an indictment or infor-
mation in a United States district court,
any party to the case may request a pretrial
conference to consider matters relating to
classified information that may arise in
connection with the prosecution. Upon such
a request, the court shall promptly hold a
pretrial conference to establish a schedule
for any request for discovery of classified
information and for the implementation of
the procedures established by this title. In
addition, at such a pretrial conference the
court may consider any other matter which
may promote a fair and expeditious trial.
No admission made by the defendant or by
any attorney for the defendant at such a
conference may be used against the defend-
ant unless the admission is in writing and
is signed by the defendant and by the
attorney for the defendant.
PROCEDURES FOR DISCLOSURE OF CLASSIFIED
INFORMATION
SEC. 102. (a) (1) Whenever a defendant in
any Federal prosecution intends to take any
action to disclose or cause the disclosure of
classified information in any manner in con-
nection with such prosecution, the defend-
ant shall, before such disclosure and before
the trial or any pretrial hearing, notify the
court and the attorney for the United States
of such intention and shall not disclose or
cause the disclosure of such information
unless authorized to do so by the court in
accordance with this title. Such notice shall
include a brief description of the classified
information that is the subject of such
notice.
(2) (A) Within ten days of receiving a
notification under paragraph (1). the United
States, by written petition of the Attorney
General, may request the court to conduct
a proceeding to make all determinations
concerning the use, relevance, or admissibil-
ity of the classified information at issue
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