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S. 1790 (96th): Privacy Protection Act of 1980


The text of the bill below is as of Oct 13, 1980 (Passed Congress).


PUBLIC LAW 96-440—OCT. 13, 1980                                    94 STAT. 1879

Public Law 96-440
96th Congress
                                    An Act
To limit governmental search and seizure of documentaiy materials possessed by          Oct. 13, 1980
  persons, to provide a remedy for persons aggrieved by violations of the provisions      [S. 1790]
  of this Act, and for other purposes.

  Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may be Privacy
                                                                     Protection Act of
cited as the "Privacy Protection Act of 1980".                       1980.
                                                                                       42 u s e 2000aa
     TITLE I—FIRST AMENDMENT PRIVACY PROTECTION                                        note.

                         PART A—UNLAWFUL ACTS
   SEC. 101. (a) Notwithstanding any other law, it shall be unlawful for Work product
a government officer or employee, in connection with the investiga- materials,
                                                                          search or
tion or prosecution of a criminal offense, to search for or seize any seizure.
work product materials possessed by a person reasonably believed to 42 u s e 2000aa.
have a purpose to disseminate to the public a newspaper, 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 possessing
     such materials has committed or is committing the criminal
     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 tlus paragraph if the offense to
     which the materials relate consists of the receipt, possession,
     communication, or withholding of such materials or the informa-
     tion 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 informa-
     tion relating to the national defense, classified information, 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
     iiy ury to, a human being.
   (b) Notwithstanding any other law, it shall be unlawful for a
government officer or employee, in connection with the investigation
or prosecution of a criminal offense, to search for or seize documen-
tary materials, other than work product materials, possessed by a
person in connection with a puipose to disseminate to the public a
newspaper, book, broadcast, or other similar form of public communi-
cation, in or affecting interstate or foreign commerce; but this
provision shall not impair or affect the ability of any government

94 STAT. 1880 PUBLIC LAW 96-440—OCT. 18, 1980 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 possessing such materials has committed or is committing the criminal 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 informa- tion contained therein (but such a search or seizure ma^ be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of informa- tion relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of title 18, United States Ck)de, 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 bemg; (3) there is reason to believe that the giving of notice pursuant to a subpena duces tecum would result in the destruction, £dteration, or concealment of such materials; or (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 investiga- tion or trial occasioned by further proceedings relating to the subpena would threaten the interests of justice. Affidavit. (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 subject to seizure. PART B—REMEDIES, EXCEPTIONS, AND DEFINITIONS Customs laws. SEC. 105. This Act shall not impair or affect the ability of a 42 use government officer or employee, pursuant to otherwise applicable 2000aa-5. law, to conduct searches and seizures at the borders of, or at international points of, entry into the United States in order to enforce the customs laws of the United States. Damages, civil SEC. 106. (a) A person aggrieved by a search for or seizure of actions. materials in violation of this Act shall nave a civil cause of action for 42 u s e 2000aa-6. 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 viola- tions 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 imder color of his office or emi)lo3nnent, if such State has not waived its sovereign Immunity as provided in paragraph (1).
PUBLIC LAW 96-440—OCT. 13, 1980 94 STAT. 1881 (b) It shall be a complete defense to a civil action brought under Defense. 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 Evidence. excluded on the basis of a violation of this Act. (f) A person having a cause of action under this section shall be Damage entitled to recover actual damages but not less than liquidated recovery. damages of $1,000, and such reasonable attorneys' fees and other litigation costs reasonably incurred as the court, in its discretion, 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 Attorney against the United States under this section, and shall promulgate General, claim settlement; regulations to provide for the commencement of an administrative regulations. 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 warranted. (h) The district courts shall have original jurisdiction of all civil Jurisdiction. actions arising under this section. SEC. 107. (a) "Documentary materials", as used in this Act, means Definitions. materials upon which information is recorded, and includes, but is 42 use 2000aa-7. not limited to, written or printed materials, photographs, motion picture films, negatives, video tapes, audio tapes, and other mechani- cally, magentically or electronically recorded cards, tapes, or discs, but does not include contraband or the fi'uits 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 materials", as used in this Act, means materials, other than contraband or the fi*uits 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 any other person; (2) are possessed for the purposes of communicating such materials 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 Ck)lumbia, the Commonwealth of Puerto Rico, any terri-
94 STAT. 1882 PUBLIC LAW 96-440—OCT. 13, 1980 tory or possession of the United States, and any local government, unit of local government, or any unit of State government. Effective date. SEC. 108. The provisions of this title shall become effective on 42 u s e 2000aa January 1,1981, except that insofar as such provisions are applicable note. 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 42 use SEC. 201. (a) The Attorney General shall, within six months of date 2000aa-ll. 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— (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 intrude 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 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 24 hours of such emergency the appropriate United States Attorney is notified. Report to Ot)) The Attorney General shall collect and compile information on, congressional and report annually to the Committees on the Judiciary of the Senate committees. and the House of Representatives on the use of search warrants by Federal officers and employees for documentary materials described in subsection (a)(3).
PUBLIC LAW 96-440—OCT. 13, 1980 94 STAT. 1883 SEC. 202. Guidelines issued by the Attorney General under this ^^usc title shall have the full force and effect of Department of Justice 2000aa-i2. 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. Approved October 13, 1980. LEGISLATIVE HISTORY: HOUSE REPORT No. 96-1064 accompanying H.R. 3486 (Comm. on the Judiciary). SENATE REPORTS: No. 96-874 (Comm. on the Judiciary) and No. 96.1003 (Comm. of Conference). CONGRESSIONAL RECORD, Vol. 126 (1980): Aug. 4, considered and passed Senate. Sept. 22, H.R. 3486 considered and passed House; passage vacated and S. 1790, amended, passed in lieu. Sept. 29, Senate agreed to conference report. Oct. 1, House agreed to conference report. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 16, No. 42: Oct. 14, Presidential statement.