THE LEGISLATION proposed by President Carter Tuesday is an important step toward repairing some of the damage done to the right of individual privacy by the Supreme Court last spring. It would sharply limit the powers of police - federal, state and local - to search the files of the news media and of others who are preparing material for publication. By doing so, it would provide those groups with the kind of protection they need against unwarranted rummaging in their files without significantly diminishing the ability of the police to gather evidence in criminal cases.
The Supreme Court made such rummaging possible when it ruled that police may constitutionally search the filesa of any individual, whether suspected of criminal activity or not, if there is reason to believe they will find evidence of a crime. We, along with many others, have argued that this seriously threatened the ability of the press to investigate governmental and other kinds of wrongdoing. The danger was that confidential notes could be exposed to the eyes of malevolent or overzealous police as they searched for evidence concerning other matters. Fortunately, this argument has been taken seriously by the president and Attorney General Griffin Bell, some of whose comments on the subjected are printed, For the Record, on this page today.
The administration's proposal would prohibit almost all searches through the "work produc" - notes, photographs, interview files, etc. - of anyone preparing material for dissemination to the public. That would include, in addition to journlists, academicians, professional free-lance writers and anyone else preparing an article or a broadcast. Such material could be searched only if a judge had been convinced that its owner was a sus in a crime or that a death or serious injury would occur if an immediately search were not conducted.
Police and prosecutors might still have access to the files of journalists and other authors. But their only access to the material would be by way of a subpoena. That would give journalists an opportunity to have their objections heard by a judge before they surrendered their confidential notes.
The proposed legislation would als require prosecutors to proceed via a subpeona if they believed a journalist's files to contain direct evidence of a crime, such as a ransome note. Searches for that kind of evidence withour prior notice could be conducted - beyond the circumstances outlined above - only if there were danger that the material might be destroyed.
If Congress accepts this proposal, or some refinement of it, the problem the Supreme Court's decision created for the press will be greatly relieved. But the problem the decision created for others will not be. The government has no business searching the belongongs of lawyers, doctors, teachers or any other citizen for evidence that someone else committed a crime. The same kind of rules that apply to the press should apply to others who may possess confidential information.
Fortunately, the Department of Justice does recognize that the searches of innocent third parties infringe on individual privacy, and it says it will continue to study the situation. But even if it concludes that something should be done, it is not likely to propose legislation that would be effective against state and local police. That is because the federal government has no direct constitutional authority over them. The Justice Department believes the federal power over interstate commerce provides the necessary jurisdiction for the statue the administration is proposing , but it doubts that power provides the necessary basis for broader legislation. If it is right, that broader legislation will have to come outof each of the 50 state legislatures. Until it does, no one's private papers will be secure against the prying eyes of zealous officers.