PRIVACY PROTECTION ACT OF 1980

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000300040011-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 20, 2016
• Document Release Date: May 21, 2007
• Sequence Number: 11
• Publication Date: August 4, 1980
• Content Type: OPEN SOURCE

S 10740
CONGRESSIONAL RECORD - SENATE
committed or is committing the criminal of-
fense for which such materials are sought:
Provided, however. That a government officer
or,employee may not search for or seize such
materials under the provisions of this Para-
graph if the offense for which such materials
are sought consists of the receipt, posses-
sion, 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 re-
ceipt, possession, or communication of infor-
mation relating to the national defense,
classified information, or restricted data nn-
798 of title 18, United States Code, or se
225, or 227 of the Atomic Ener`l
tion 224
,
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 im-
mediate seizure of such materials is neces-
sary to prevent the death of, or serious bodily
injury to, a human being;
(3) there is reason to believe that the giv-
ing of notice pursuant to a subpena duces
tecum would result in the destruction, al-
teration, or concealment of such materials;
or
(4) such 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
delay in an investigation or trial occasioned
by further proceedings relating to the sub-
pens would threaten the interest of justice.
(c) In the event a search warrant is sought
pursuant to ((b), the person paragraph (B) the subsection s
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.
Part B Remedies, Exceptions, and Defini-
tions
SEC. 105. This Act shall not impair or af-
fect the ability of a government officer or
employee, pursuant to otherwise applicable
law, to conduct searches and seizures at the
borders of, or at international points of, en-
try into the United States in order to en-
force the customs laws of the United States.
SEc. 106. (a) A person aggrieved by a
search for or seizure of materials 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 immun-
ity 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 para-
?
graph (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 em-
ployee whose violation is complained of or
his reasonable good faith belief in the law-
fulness of his conduct, except that such a de-
fense may be asserted If the violation com-
plained of is that of a judicial officer.
1-1 any other governmental unit is exclusive of
any other civil acrjon or proceeding for con-
duct constituting a violation of this Act,
against the officer or employee whose viola-
tion gave rise to the claim, or against the
estate of such officer or employee.
(e) Evidence otherwise admissible in a
proceeding shall not be excluded on the
basis of a violation of this Act.
(f) A person having a cause of action un-
der this section shall be entitled to recover
actual damages but not less than liquidated
damages of $1,000, such punitive damages as
may be warranted,,and such reasonable at-
torneys' fees and other litigation costs rea-
sonably incurred as the court, in its dis-
cretion, may award: Provided, however, That
the United States, a State, or any other gov-
ernmental unit shall not be liable for inter-
est 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 ad-
ministrative sanctions against such officer
or employee, if warranted.
(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 it not limited to, written or printed
materials, photographs, tapes, videotapes,
negatives, films, out-takes, and interview
files, but does not include contraband or the
fruits of a crime or things otherwise crimi-
nally possessed, or property designed or in-
tended for use, or which is or has been used
as, the means of committing a criminal
offense.
(b) "Work product materials", as used in
this Act, means materials, other than con-
traband 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 a person other than the person in posses-
sion of the materials;
(2) are possessed for the purposes of com-
municating such materials to the public;
and
(3). include mental impressions, conclu-
sions, opinions, or theories 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 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
government.
SEC. 108. The provisions of this title shall
become effective on October 1, 1980, except
that insofar as such provisions are applicable
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 the date of enactment
of this Act, issue guidelines for the proce-
dures to be employed by any Federal officer
or employee, in connection with the investi-
gation or prosecution of a criminal offense,
August 4, 1980
to obtain documentary materials in the pri-
vate 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
are sought are not contraband or the fruits
or Instrumentalities of an offense. The Attor-
ney General shall 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 jeopard-
ize the availability or usefulness of the ma-
terials sought to be obtained; and
(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.
(b) The Attorney General shall collect
and compile information on, and report an-
nually to the Committees on the Judiciary
of the Senate and the House of Representa-
tives on, the use of search warrants by Fed-
eral officers or employees for documentary
materials described in subsection (a) (3).
(c) An Issue relating to the compliance,
or to the failure to comply, with guidelines
Issued pursuant to this section may not be
litigated, and a court may not entertain such
an issue as a basis for the suppression or
exclusion of evidence.
The PRESIDING OFFICER. The ques-
tion is on agreeing to the committee
amendment.
The committee amendment was agreed
to.
? Mr. THURMOND. Mr. President, the
legislation being considered by the Sen-
ate today is a response to the Supreme
Court's decision in Zurcher against Stan-
ford Daily, which upheld the search of a
newsroom for criminal evidence by law,
enforcement officials.
This legislation, S. 1790, seeks to strike
a careful balance between the first
amendment right to free expression and
the fourth amendment which permits the
Government to search private property
under certain circumstances. This is "a
difficult balance to achieve in any legis-
lative proposal but was not, in my opin-
ion, achieved totally in this bill. Al-
though title I of the bill addresses the
concerns of the press and journalists,
and I strongly support that part of this
legislation, I do have reservations about
other portions of the bill that are to be
now. covered by Attorney General guide-
lines.
Mr. President, my concerns about
titles II and III of the original bill, now
to be implemented by guidelines, rest
basically on considerations that indi-
cate legitimate law enforcement may be
impeded by even the regulatory effect of
these provisions.
The extension of search protection to
selected groups has the potential for
creating sanctuaries for evidence neces-
sary to the effective investigation and
prosecution of crime, particularly in the
case of lawyers whose clients will urge
that they hold Incriminating evidence.
Concern about the creation of sanctu-
aries .is not without substance, for exper-
ience under existing law reveals num-
erous attempts to use the attorney-client
privilege as a basis for refusal to pro-
duce nonprivileged, incriminating evi-
dence. This problem will be accentuated
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 Approved For Release 2007/05/23: CIA-RDP85-00003R000300040011-5
S 10742 CONGRESSIONAL RECORD- SENATE August 4, 1980
limit governmental search and seizure of
documentary evidence in possession of
nonsuspects.
CONGRESSIONAL ACTION
Less than 1 month after the opinion
was issued, the Senate Judiciary Com-
mittee's Subcommittee on the Constitu-
tion, began 4 days of hearings on the
problems associated with the Stanford
Daily decision and several possible legi$-
lative answers. The Senator from Kansas
introduced legislation that was designed
to deal with some of the problems that
the .court's decision created. No action
was taken in the 95th Congress. In April
of the first session of the 96th Congress,
the administration proposed a bill to
provide the protection of the subpena-
first rule to those engaged in first amend-
ment activities for Federal, State, and
local law enforcement authorities. This
proposal, S. 855, was later incorporated
in S. 1790 as tiles I and IV of the legisla-
tion. Title II was added in September of
1979 to afford protection against unan-
nounced searches to those in possession
of documentary materials which would
be privileged in the jurisdiction in which
they are to be found and title III was
designed to extend protection to all in-
nocent third parties holding documen-
tary evidence.
THE FOURTH AMENDMENT-
The boundaries between citizens and
their Government must be carefully ob-
served. Throughout the history of our
Nation, concern has been expressed
about intrusion by the Government into
lives and property of Americans. The
fourth amendment was drafted to ad-
dress these concerns. It expresses an
eloquent, unequivocal principle of demo-
cratic government, "the right of the
people to be secure in their persons,
houses, papers, and effects, against un-
reasonable searches and seizures, shall
not be violated." The fourth amend-
ment's guarantee sprang directly from
the colonial era when warrantless
searches were routinely employed by
British soldiers to enforce the crown's
tax laws. Since then, the scope of fourth
amendment protections has been broad-
ened, and through the 14th, made appli-
cable to the States. This expansion has
been concurrent with and supportive of
the still-evolving "right to privacy" to
which every American is entitled.
PRIVACY
The right to privacy has no specific
constitutional base. The essential notion
of an individual's right to be left alone
by Government is not found in any one
clause or amendment in the Constitu-
tion. Instead, privacy rights are implicit
In the scheme of democratic statecraft.
Americans have always felt that the Gov-
ernment should not intrude in their per-
sonal lives or business without an ade-
quate justification.
The existence of a right to privacy is
firmly established in constitutional law,.
but no concrete definition of the scope
of the right has ever been enunciated.
Rather, on a case-by-case basis, the
parameters of constitutional protection
for privacy are being established.
The Senator from Kansas is aware of
the fact that it is difficult to strike a
proper balance between shielding private
information from inquiring eyes and
making enough of It available to answer
fair questions.
CONCERNS OF LAW-ENFORCEMENT
Mr. President, the legislation before
us will enhance the constitutional guar-
antees of privacy, while in no way im-
pairing legitimate law enforcement in-
terests. The intent and effect of the pro-
cedure advocated in this legislation is to
protect the privacy of Americans from
intrusion by police officers, where that
intrusion is unnecessary.
The Senator from Kansas Is aware of
the difficult problems confronting law
enforcement officials today. The respon-
sibility of bringing criminals to justice is
more difficult now than ever before. Yet,
the issue presented by the Stanford Daily
case is substantially different from most
constitutional conflicts that affect law
enforcement. It dealt solely with in-
dividuals not suspected of any criminal
involvement. The Supreme Court's deci-
sion limited the rights of citizens who
may have evidence relating to a crime
but have not committed any criminal
offense.
SCOPE OF INVESTIGATIVE ACTIVITY
It is the opinion of the Senator from
Kansas that the Stanford Daily decision
overextended the permissible scope of in-
vestigatory activity. This is not fully con-
sistent with American ideals of justice.
Effective enforcement of the law requires
that citizens respect those responsible
for the safety of the community. That re-
spect can only be established when citi-
zens are certain that the law will also
respect their rights.
The Senator from Kansas urges his
colleagues to join him in supporting this
important piece of legislation.*
? Mr. HATCH. Mr. President, I rise in
support of S. 1790, the proposed Privacy
Protection Act. This measure would limit
Federal, State, and local governments in
their ability to secure search warrants to
obtain documentary materials in the
possession of persons engaged in the
"dissemination of Information to the
public". S. 1790 is a response.to the Su-
preme Court's decision Zurcher against
Stanford Daily 436 U.S. 547 (1978) in
which the Court upheld the search of a
newspaper file room for photographs In-
criminating a group of protestors who
had attacked and injured nine police-
men.
I rise In support of S. 1790, however,
not because I wish to overturn Stanford
Daily. I feel that it was a correct de-
cision. I rise because I wish to Insure
that the case Is limited to its immediate
fact situation. I do not wish to see this
decision used as justification for in-
creasingly commonplace searches of
newspaper file rooms and similar loca-
tions.
At this point in the RECORD, I submit
the additional views of myself and my
friend and colleague from Wyoming (Mr.
SIMPsoN). These views summarize my
hesitations about this generally meritori-
ous legislation:
The views follow:
ADDITIONAL VIEWS OF SENATORS ORRIN HATCH
AND ALAN SIMPSON
1. INTRODUCTION
Each of us has supported S. 1790, the Pri-
vacy Protection Act, in both subcommittee
and the full Judiciary Committee. We recog-
nize the unique needs of the journalism pro-
fession, and the unique role that the press
is accorded in our constitutional framework.
Each of us, too, is committed to the principle
that the Government ought to employ the
least intrusive, practicable means to secure
information that is necessary for criminal
proceedings, not only with respect to journal-
ists, but with respect to all individuals.
The fourth amendment to the Constitu-
tion establishes the basic standard that
searches and seizures must not be "unreason-
able". As Justice Powell noted in his con-
curring opinion in Zurcher v. Stanford Daily:
"The magistrate must judge the reason-
ableness of every warrant in light of the cir-
cumstances of the particular case * * *. A
magistrate asked to Issue a warrant for the
search of press offices can and should take
cognizance of the independent values pro-
tected by the first amendment."
The Stanford Daily case held that the
Constitution does not require a magistrate
to conclude that warrant searches of the
press are necessarily "unreasonable". The
committee in adopting S. 1790 Is, in effect,
instructing magistrates and others empow-
ered to Issue warrants that a search directed
at the documentary materials of journalists
is to be considered in itself "unreasonable"
in the absence of certain enumerated circum-
stances. For this reason, a 'subpoena-first'
rule is established with respect to most
documentary materials in the possession of
journalists. In adopting S. 1790, the com-
mittee Is establishing protections for journ-
alists that are permitted, but not required,
by the Constitution.
II. DEPARTURE FROM "SUBPOENA-FIRST" RULE
One of our two major concerns with the
final committee product Is Its departure from
a mere 'subpoena-first' rule with respect to a
journalist's "work product". The bill Instead
adopts a rule that may absolutely prevent
material from being secured for use at trial.
in contrast to other documentary materials,
"work product" materials cannot be obtained
through warrants even (1) when there is
reason to believe that the giving of notice
pursuant to a subpoena would result in the
destruction, alteration, or concealment of
evidence; or (2) when a subpoena has already
been disobeyed and all appellate remedies
have been exhausted.
The Stanford Daily case underscores the
potential for abuse under this approach.
There, the newspaper had announced a
policy of destroying any photographs in their
possession that might aid in the prosecution
of a group of protestors who had attacked
and injured nine policemen. At oral argu-
ment before- the U.S. Supreme Court, the
counsel for the newspaper participated in the
following exchange with several of the
justices:
Question. Let us assume you had a picture
of the commission of a crime. For example,
in banks they take pictures regularly of, not
only of robbery but of murder committed in
a bank and there have been pictures taken
of the actual pulling of the trigger or the
pointing of the gun and pulling of the trig-
ger. There is a very famous one related to
the assassination of President Kennedy.
What would the policy of the Stanford
Daily be with.respect to that? Would it feel
free to destroy it at any time before a sub-
poena had been served?
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 CONGRESSIONAL RECORD -SENATE August /, 1980
consideration of H.R. 5766, was consid-
ered and agreed to, as follows:
Resolved, That pursuant to section 402(0)
of the Congressional Budget Act of 1974, the
provisions of section 402(a) of such Act ass
waived with respect to the consideration of
H.R..57,66, a bill to amend title 10, United
States Code, to authorize additional Reserve
Officer's Training Corps scholarships for the
Army, to provide a certain number of such
scholarships for cadets at military junior
colleges, to authorize the Secretary of the
Army to provide that cadets awarded such
scholarships may serve their obligated period
of service in the Army Reserve or Army Na-
tional Guard of the United States, and for
other purposes.
Such a waiver is necessary because section
402(a) of the Congressional Budget, Act of
1974 provides that it shall not be in order In
either the House of Representatives or the
Senate to consider any bill or resolution
which, directly or indirectly, authorizes the
enactment of new budget authority for a
fiscal year, unless that bill or resolution Is
reported in the House or the Senate, as the
case may be, on or before May 15 preceding
the beginning of such fiscal year.
For the foregoing reasons, pursuant to
section 402(c) of the Congressional Budget
Act of 1974, the provisions of section 402(a)
of such Act are waived with respect to S.R.
5766, as reported by the Committee on Armed
Services.
Mr. ROBERT C. BYRD. I move to re-
consider the vote by which the resolution
was agreed to.
Mr. BAKER. I move to lay that motion
on the table.
The motion to lay on the table was
agreed to.
CORPS SCHOLARSHIPS
bill (H.R. 5766) to amend title 10, United
States Code, to authorize additional Re-
serve Officers' Training Corps Scholar-
ships for the Army, to provide a certain
that cadets awarded such scholarships
may serve their obligated period of serv-
following:,
on such date by a period equal to the period
such member served on active duty, but only
"(A) (1) accept an appointment, if offered,
as a commissioned officer in the Army. Navy,
Air Force, or Marine Corps, as the case may
i.e, and. that, if qs Commissioned as a
re.,filar officer and'32'ia gular commission is
.v:minated before ifirth anniversary of
his date of rank, he will accept an appoint-
ment, if offered, in the reserve component of
that armed force and not resign before that
.anniversary; and
?'iii) serve on active duty for four or more
years; or
"(B) (i) accept an appointment, if offered,
as a commissioned officer in the Army, Navy,
Air Force, or Marine Corps, as the case may
be:. and
(ii) serve in a reserve component of that
armed force until the eighth anniversary of
the receipt of such appointment, unless
otherwise extended by subsection (d) of
section 2108 of this title, under such terms
and conditions as shall be prescribed by the
Secretary of the military department, con-
cerned.
The performance of service under clause (5)
(B) may include periods of active duty. ac-
tive duty for training, and other service
In an active or Inactive status in the re-
serve component in which appointed."; and
(3) by striking out "6,600" the first place
it appears In subsection (h) and inserting
In lieu thereof "12,000".
(c) (1) Chapter 103 of such title, relating
to senior Reserve Officers' Training Corps,
is amended by inserting after section 2107
the following new section:
"I 2107a. Financial assistance program for
specially selected members: mili-
tary junior colleges
"(a) (1) The Secretary of the Army may
appoint as a cadet in the Army Reserve or
Army National Guard of the United States
any eligible member of the program who is a
student at a military junior college and who
will be under 25 years of age on June 30 of
the calendar year In which he is eligible
under this section for appointment as a sec-
ond lieutenant In the Army, except that the
age of any such member who has served on
active duty in the armed forces may exceed
such age limitation on such date by a peri-
od equal to the period such member served
on active duty, but only if such member will
be under 29 years of age on such date.
"(2) To be considered a military junior
college for the purposes of this section, a
school must be a civilian postsecondary edu-
cational institution essentially military in
nature that does not confer baccalaureate
degrees and that meets such other require-
ments as the Secretary of the Army may
prescribe,
"(b) To be eligible for appointment as a
cadet under this section, a member of the
program must-
"(1) be a citizen of the United States;
"(2) be specially selected for the financial
assistance program under this section un'e"
procedures prescribed by the Secretary of
the Army;
"(3) enlist in a reserve component of the
Army for the period prescribed by the Secre-
tary of the Army;
"(4) contract, with the consent of his
parent or guardian if he is a minor. with
the Secretary of the Army to serve for the
period required by the program;
"(5) agree in writing that he will accept
an appointment, if offered, as a commis-
sioned officer in the Army Reserve or the
Army National Guard of the United States;
and
"(6) agree In writing that he will serve in
such reserve component for not less than
eight years.
Performance of duty under an agreement
under this subsection shall be under such
terms and conditions as the Secretary of the
Army may prescribe andap include periods
of active duty, active duty for training, and
other service in an active or Inactive status
in the reserve component in which ap-
pointed.
"(c) The Secretary of the Army shall pro-
vide for the payment of all expenses of the
Department of the Army in administering
the financial assistance program under this
section, including the cost of tuition, fees,
books, and laboratory expenses which are
incurred by members of the program ap-
pointed as cadets under this section while
such members are students at a military
junior college.
"(d) Upon satisfactorily completing the
academic and military requirements of the
serve officer In the Army in the grade of
second lieutenant, even though he is under
21 years of age.
"(e) the date of rank of officers appointed
under this section In May or June of any
year Is the date of graduation of cadets from
the United States Military Academy in that
year. The Secretary of the Army shall estab-
lish the date of rank of all other officers ap-
pointed under this section.
"(f) A cadet who does not complete the
course of instruction, or who completes the
course but declines to accept a commission
when offered, may be ordered to active duty
by the Secretary of the Army to serve In
his enlistd grade for such period of time as
the Secretary prescribes but not for more
than four years.
"(g) In computing length of service for
any purpose, an officer appointed under this
section may not be credited with service as
a cadet or with concurrent enlisted service.
"(h) (1) The Secretary of the Army shall
appoint not less than 10 cadets under this
section each year at each military junior col-
lege at which there are not less than 10
members of the program eligible under sub-
section(b) for such an appointment. At any
military college at which In any year there
are fewer than 10 such members, the Sec-
retary shall appoint each such member as a
cadet under this section.
"(2) If the level of participation in the
program at any military junior college meets
criteria for such participation established by
the Secretary of the Army by regulation, the
Secretary shall appoint additional cadets
under this section from among members of
the program at such military junior college
who are eligible under subsection (b) for
such an appointment.
"(f) Cadets appointed under this section
are in addition to the number appointed un-
der section 2107 of this title.".
(2) The table of sections at the beginning
of chapter 103 of such title is amended by
inserting after the item relating to section
2107 the following new item:
"2107a. Financial assistance program for spe-
cially selected members: military
junior colleges.".
(d) Section 2108(d) of such title, relating
to advanced training after receiving a bac-
calaureate degree or completing preprofes-
slonal studies, is amended by striking out the
second sentence and inserting in lieu thereof
the following: "If a member of the program
has been accepted for resident graduat@ or
professional study, the Secretary of the mili-
tary department concerned may delay the
commencement of that member's obligated
period of active duty, and any obligated pe-
riod of active duty for training or other serv-
ice in an active or Inactive status in a reserve
component, until the member has completed
that study. If a cadet appointed under sec-
tion 2107a of this title has been accepted for
a course of study at an accredited civilian
educational Institution authorized to grant
baccalaureate degrees, the Secretary of the
Army may delay the beginning of that mem-
ber's obligated period of service In a reserve
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