A GOOD MANY cheers have gone up from others in our business for the Privacy Protection Act that was approved by Congress just before its members went home for the election. The cheers are merited because this law protects the news media and others engaged in public communications from surprise police searches. But they need to be modulated because Congress saw no need to extend similar protection to the rest of the public.
Under the legislation, all law enforcement officers -- state as well as federal -- are barred from using warrants to search newsrooms and similar "public communicational" places except in narrowly limited circumstances. If those officers want documents or other material in the possession of a newspaper, for example, they are directed to seek it through a subpoena. That gives the newspaper a chance to argue in court -- before it surrenders the material -- that the police have no right to see it. Prior to passage of this legislation, such an argument could take place only after the material had been seized under a search warrant; that, obviously, was too late.
This problem, however, is not unique to our business. Since the Supreme Court sanctioned searches of newsrooms 18 months ago, there have been instances in which eager law enforcement officials have obtained warrants to search other kinds of files that are equally deserving of privacy -- the files of psychiatrists and defense lawyers, for example.
These people who, along with the news media, are known in the lingo of lawyers as "innocent third parties" are those who have done nothing illegal themselves but are thought to be in possession of material that might incriminate someone else. Their files, whether in offices or in private homes, are still open to invasion without warning. The new legislation provides only that the attorney general draw up guidelines intended to limit the occasions on which federal law enforcement officers seek warrants to invade these files.
Since it seems unlikely that Congress will be willing to return to this subject soon, the only hope of those other "innocent third parties" is to persuade 50 state legislatures that their offices and homes are entitled to as much protection as Congress has now granted the news media. That will not be easy because law enforcement officials everywhere seem to resist almost every effort to restrict their ability to invade the privacy of citizens. But it is a task that needs to be undertaken promptly.
The legislation passed by Congress for the favored group -- of which we are a part -- can serve as a model for state legislatures to use in protecting the rest of the public. It ought to be examined closely and immediately in both Annapolis and Richmond.