ALMOST TWO YEARS AGO, the Supreme Court ruled that the possessions of an innocent person can be legally searched in the pursuit of evidence that someone else has committed a crime. It was, and is, a terrible decision because it reduces the privacy of every citizen with little compensating gain for law enforcement. But a bill to repair some of the damage has finally begun to work its way through the House of Representatives.
The bill, to be considered today by the House Judiciary Committee, would prevent federal agents from conductng searches of innocent third parties for documentary evidence unless there was reason to believe the material would be destroyed or someone would be killed or seriously injured if the search were not conducted. Prosecutors and police could still obtain the documents they wanted, but they would have to use a subpoena instead of a search warrant to get them. Another provision in the bill would put identical limits on state and federal officers when the person to be searched was using the documents in any form of public communication, such as writing a newspaper article or a book or preparing a broadcast.
The difference between a subpoena and a search warrant may not sound like much, but it is the difference between being asked for something and having it taken away by physical force. As far as a newspaper, or an individual, is concerned, it is also the difference between possibly exposing to the eyes of police the particular documents in question and exposing dozens or hundreds of others as the officers rifle through files or diaries or heaps of other possessions.
There seems to have been a consensus on Capitol Hill for some time that the news media need the kind of protection from searches of their files that this bill would provide. But there has been disagreement on extending the same protections to other organizations and individuals.
While we have a particular interest in the news media part of this legislation, we believe the broader provision is no less important. No one has yet made a convincing case for giving the police power to search for instead of ask for the materials they want except in those special situations specified in this bill. In no other situations should persons not suspected of having committed crimes be subjected to the humiliation and disruption of a police search solely because they are thought to have something in their possession that will implicate someone else in criminal conduct.