it would be with third-party sources.
Would any of you care to direct your attention to that? The very
nature of news, as you point out, is to disclose ; that is what you are in
business to do. With other third parties that is not necessarily the case.
That was the question that was raised by Assistant Attorney General
Hej^mann this morning when he expressed some concern about the diffi-
culty of determining how you can tell when a wife, a brother, a busi-
ness cohort, or whoever it might be, is going to destroy the evidence.
Do you have any concerns about our ability to distinguish and say,
all right, if we know that someone is going to, as an individual citizen,,
destroy the goods or there is that possibility, that we can use a warrant
and, if not, use a subpena ?
Mr. Small. I think it is out of our field.
Mr. DhiLman. It is out of my field.
Mr. Small. I would like to say he confused me a little when he said
that, if you do it with search warrant, that was sort of all right because
the cousin, sister, brother-in-law, whatever it was, would not be com-
pelled to provide the evidence ; while, if you did it with subpena, it was
somehow different. I did not see that distinction.
It seems to me that, if they are coming to me for evidence about my
brother, whether they just say we have a right to search your effects
or whatever they say you must produce this under the subpena, tlie
result is the same. I am no more cooperative in one than the other; I
have ratted on my brother, if you will. I have been compelled to by law.
90
The important difference as an individual and I think for news-
l>oople is that the latter, the snbpena. o-ives me the opportunity to go
before some higher authority and plead the case that it is an im-
proper request.
Senator Bayii. I know Mr. Heymann was very sincere in his con-
cern. I was not impressed by the difficulty in our statute being any
greater tlian tlie difficulty in practice now. Somebody down at Justice
or city hall has to make that determination now as to whether you go
the subpena route or whetlier you use a warrant.
Perhaps the most significant distinction there is, whether there is a
possibility or probability that that evidence is going to be destroyed?
You have to make that decision now.
It seeuis to me we ought to be able to be wise enough to find some
criteria that we could put in the statute that would ease those concerns.
Mr. Davts. Senator. T would only recall our testimony. AVe recom-
mend a stronger word of "would" rather than "may" because probable
cause alreadv o-ives the judgment to the magistrate. We tliink the
narrower and the more demand placed on the magistrate to have cer-
tain belief in probable cause, the better and safer the citizen will be.
Senator Baytt. Mr. Lewis?
Mr. Lewis. I think that if the Son of Sam called up the Xew York
Times and rcA^ealed his identity, then the press would not withhold that
from tlie law enforcement a.qrencies. But what do vou do in a case where
a network recently did a feature on automobile theft and it had a
confessed, very able and competent automobile thief on the air demon-
strating how he does it ? His identity was kept from the viewers. This
Avent on nationnl television.
Suppose the New York City police arrived at the network the next
morning with a search warrant to go after the tape to find out who that
tliief was and put him in jail? He confessed on national television to
stealing x number of cars in the past few years. T^Hiat then?
Senator Bath. That is a very good question.
]\fr. r^EAVTS. The netAvork only got that interview. T haA'e to assume,
on the condition that it would not rcA'eal the identity of the car thief
who was confessing the crimes.
Senator Bayti. T guess T cannot think like a car thief, but T would
not give an intervicAv based on that protection because I do not know
hoAv that AA'ould finally be resoh^ed. The distinction between the Son
of Snm and the car tliief is on tlie critical nature of the crime. I assume.
INfr. TvEAVis. "\Ye like to think that the public's welfare was l>etter
served by publicizing hoAv to preA'ent a car from Ix-ing stolen than by
going to the network and demanding the identitv of the car thief who
helped you pul)licize it. So, if the police would just leaA'e the press
alone in that kind of instance, whether it be subpena or search war-
rant. Ave are going to have freedom of the press.
Senator I^aytt. I see your argument on that delicate issue.
Mr. S^rALL. Senator, the point was made earlier today, which I
consider another straAvman because we haA'e seen it in otliei- contexts.
"Wliat if tlie information that aa'c haA'e endangers a life? There is a
1-idnapiTig case or aac just know about some murder plot or whatever.
T think vou will find that CA-ery respectiA^e news organi7ation — T
know it is true of out-s and mauA' represented here — IvaAe their own
regulations. If you Avill, Ave call them our standards of policy.
91
One of the most prominent is that, when life is in danger, you co-
o|)erate fully with the authorities. We have always done that, whether
it is a hostage situation or a plot we have overhead, or whatever. I do
not think there are any newspeople who want to see innocent third or
fourth parties murdered simply to protect some information which
they can pass on to authorities.
I think this sort of flag waving is sort of a red herring being dragged
across our path.
The most important thing, it seems to me, that has come out of
the Stanford decision is that the Highest Court in this land has, in
effect, milocked the newsroom door to any policeman who picks up an
easily gotten warrant and wants to go through everything we have
to see what he can find.
Senator Bayii. How you find the story you are looking for without
disclosing everything else in the world there in the files, I do not know.
It is sort of like going through the laAvj-er's file. Everybody admits
there is a confidentiality between lawyers and clients and doctors and
patients. But if you are to say, all light, you oan get this one letter,
and in the process you have to go through everything else, that cer-
tainly makes a mockery of that kind of confidentiality that we have
respected rather carefully throughout the histoiy of this coimtry.
Gentleman, I appreciate very much your willingness to let us have
your thoughts. I hope you can continue to do so. Any additional in-
formation that you have that would help us in our pursuit of this
matter, I hope you will let us have it.
Without objection, we will insert in the record a statement from
Julian Goodman, chaiiTnan of NBC.
[JNIr. Goodman's prepared statement follows :]
Prepared Statement of Julian Goodman, Chairman, National
Broadcasting Company, Inc.
My name is Julian Goodman and I am tlie Chairman of tlie Board of the
National Broadcasting Company. I appreciate this opportunity to express, on
behalf of NBC and its news organization, which is one of the larger ones in the
world, our deep concern with the threat to basic First Amendment freedoms
posed by the Supreme Court's May 31, 1978 decision in Zurchcr v. The Stanford
Daily. NBC's President, Mr. Fred Silverman, shares this concern and we wish
to commend and encourage the Congressional effort, represented by these hear-
ings, to meet this threat quickly with legislation.
The subject matter of these hearings is of great personal significance to me^
because so much of my working career has been spent as a newsman. First, I was
a news writer and editor, and spent sixteen years in Washington before leaving
for New York to become Vice President of NBC News. This kind of experience
leads me to believe that by giving law enforcement officials the right to rummage
through the files of a news organization, the Supreme Court's decision will un-
dermine the ability of the print and broadcast media to gather news fully and
effectively and disseminate it to the American people.
Justice White's majority opinion acknowledges the dangers to a free press of
unannounced police searches and seizures, but assumes that existing procedural
safeguards that govern the issuance of warrants, coupled with "proper admin-
istration", will guard against the harms threatened by newsroom searches.
Unfortunately, however, the Court's assumptions are unrealistic in light of the
real and practical consequences of search warrant procedures and police
intrusions.
Journalists receive a considerable amount of information on a confidential
basis. Although the Court brushed this point aside, a reporter's confidential
sources would unquestionably dry up if the newsman's contact knew his name
might fall into the hands of the police. If a person comes to the press, to talk
42-190 — 79 7
92
about corruption or criminal activities, it is l)ecause lie trusts tlie press;
in particular, he trusts the press to keep its promise of confidentiality. Moreover,
the press is often able to report criminal activities of which the police would
otherwise have learned. The job of the press is to publish the facts— often with-
out disclosing sources — and. if potential informauts were to believe the press
is powerless to prevent the police from discovering- the identity of our sources,
reporters would seldom receive the information at all.
jS'BC's investigative reporters therefore view the t<ianff>rd Daily decision as
a major obstacle to effective news-gathering. The possibility of an unannounced
police searcli, which may be directed at entirely different materials but which
will reveal sources and other confidential material to the police, is likely to dis-
suade many sources from revealing information.
A related problem that springs from police search and seizure is the percep-
tion that the news media may he Uoth potential agents for law enforcement and
a source of evidence for tlie prosecution. This would severely limit a journalist's
access to sources of information.
This leads me to another point : it is unrealistic to assume, as the Court did.
that even well-meaning and conscientious magistrates can guard against those
searches that would actually interfere with freedom of the press. Since search
warrants are issued in a non-adversary proceeding, tlie magistrate will be pre-
sented only with arguments of the prosecutor and jiolice. He does not hear, and
has no way of knowing, the countervailing considerations or facts, let alone of
First Amendment law. which would apprise him of the jeopardy to press rights
from the issuance of a warrant.
In addition to being unrealistic, the view of the Court is utterly inconsistent
with a central hyi)othesis of the First Amendment : that at least wlien the target
is the press, one cannot assume "good conduct" on the part of government oflBcials.
The history of the world is. quite simply, to the contrary.
On a more pratrmatic level, the fact remains that once the warrant has been
Issued and the police are on the premises, the magistrate is. for all practical pur-
poses, powerless to guard against abuse or misuse of the warrant process. Neither
the Court's holding nor a proper .search warrant legally permits the police to
rummage through all sorts of journalistic files while looking for what they
claim to be specific evidence of a particular crime. But the fact is that if the
police beqrin to search and seize materials, the news organization l)eing searched
is liowerless to stop them. Resisting their interpretation of the scope of a search
warrant l)y force is as impractical as it is illegal. By the time relief is sought
from the issuing magistrate or the courts, the search is over, the materials are
examined or seized, and the damage is done.
Tims, even if. as the Court states, "the requirements of specificity and reason-
abVness are properly applied, policed, and oliserved'' in issuing the warrant, the
police on the premises pursuant to a warrant are, in reality, free to "rummage
at large" in journalists' files.
In the course of this far-ranging search the police may di.scover. examine and
seize materials that are Miiolly unrelated to the crime under investigation. For
instance, a rei)orter's notebook may contain materials on several stories, oulv
one^ — or even none — of which is relevant to the wan-ant. Even if there are files'
actually covered 1)y the warrant, they will often contain the names of confiden-
tial sources and innmont third ])arties not relevant tf) the warrant. Reporters'
notes (and broadcasters' films and tapes') contain considerable background mat*^-
rial kept for later u.se. The persons whose names appear in a journalist's fi'es
may have nothing to do with the crime in question, but may nonetheless be
subject to police investigation. When the evid(>nce in question involves corrup-
tion in government or law enforc(Mnent officials, it is an invitation to police sup-
pression of press activities.
Perhaps the most harmful and truly appalling result of Thr Sfnvforfl Daihi
ruling, however, is that it substitutes force — police force and unannounced
search and soiznre — for what has to date been more reasoned approach: the
opportunity for law enforcement and press to have the judiciary determine what
must, after all. be produced.
The press also is acutely aware of the implications of thf decision o*' the
Fourth Amendment and for an individual's right to privacy. The home or busi-
ness of an innocent person may now be invaded and searched by the police with-
out notice.
Fortunatelv. many members of Congress, includimr the Chairman of this Com-
mittee, have recognized that the consequences of Tlie Stanford Daily decision
93
must be averted. A number of bills have been introduced in both Houses which
seek to affirm the ri.ijlits of the press and innocent individuals under the First
and Fourth Ameuchnents to the Constitution. XRC has as its i)articular respon-
sibility and field of experience those police actions affectini; the press, which is
singled out by the Constitution and has the unique role of collecting; and dissemi-
nating information to the public. Therefore. NBC urges that legislation be
adopted to protect the press from luiannounced searches and seizures and to
recjuire the iwlice to proceed by subpoena, with notice, if they believe a news
entity possesses evidence of a crime.
In closing, I would like to thank the Conunittee both for its prompt attention
to this critical subject and for giving NF.C the opportunity to submit its views
for the record. NRC and NBC News would be willing to present further infor-
mation if Congress conducts subsequent hearings to consider bills that deal with
the effect of The Stanford Daily decision on the press.
Senator Bayii. I understand that various news organizations, j^ro-
fessional associations and the like, are involved now in trying to deter-
mine how they tliink we onaht to deal with this question.
I do not want to intervene in wliat you are doing, but I want to offer
to cooperate in any way I can as chairman of this conunittee to M'ork
with you after you decide. I thinlc the more we can get agreement
among the various types of news agencies as to the thrust of this mat-
ter, the })etter off Ave are going to be.
I think it puts the vaiual>le fourth estate in a very strong position,
if we follow the position that Mr. Davis espoused that we are con-
cerned about individual citizens. Individuals do not have the kind of
political clout within the system that the news media has. So, I guess
that shows you the objectivity I have as author of a bill that includes
third parties as well as news sources.
Mr. Small. Senator. I tliink the diversity of the press being what
it is. I doubt if there will be unanimous feeling on anything. But there
are a number of groups separately meeting to discuss this question. I
am sure you are going to be the first to know what they come out with.
Senator Bayh. We want to work with you on that.
I appreciate your taking time to be here with us this morning. It
has been a significant contribution.
[Whereupon, at 1 :30 p.m., the committee was adjourned.]
CITIZENS PRIVACY PROTECTION ACT
THURSDAY, JULY 13, 1978
U.S. Senate
Subcommittee on the Constitution
OF the Committee on the Judiciary,
: . Washington^ D.C.
The subcommittee met, pursuant to notice, at 10:20 a.m., in room
318, Russell Senate Office Building, Senator Birch Baych (chairman
of the subcommittee) presiding.
Present : Senator Scott.
Staff present: Nels Ackerson, chief counsel and executive director;
]MaiT K. Jolly, staff director; and Kevin O. Faley, general counsel.
OPENING STATEMENT BY SEN. BIRCH BAYH
Senator Bayh. The committee will come to order.
Today we continue the subcommittee's hearings on legislation which
has been introduced in response to the Stanford Daily decision handed
down a short time ago by the Supreme Court.
We are cognizant of the suggestion handed down by the Court that
if the Congress cared it would have the authority to change the impact
of that decision by legislation.
Some of us feel very strongly that maybe legislation should be
passed.
I have introduced legislation along with some of our colleagues,
both in the Senate and in the House. I do believe that we need to pass
legislation to deal with the protection of just not the press, but indeed
of all our citizens as result of the Suiireme Court decision.
In the decision of the Supreme Court in the case of ZurcJier v.
Stanford Daily, the majority held that police armed with a warranty
coulcl, forcibly and without notice, search a person's home or business
for evidence of a crime even if that person is in no way suspected of
being involved in that crime.
As several of our previous witnesses have pointed out, the Zurclier
decision has left us with a serious potential for governmental abuse of
our right to privacy — the most fundamental and comprehensive oi
all constitutional rights.
Several days ago we celebrated the 202d anniversary of our inde-
pendence. The colonists who declared that freedom had a keen sense
of their personal privacy. I do not believe it is an exaggeration to say
tliat if it had not been for the British general warrants, writs of
assistance, and quartering of solrlicrs in private homes we might have
passed the Fourth of July much like any other day.
(95)
96
Instead of boo;innino: our baseball ^ames with the Star Spangled
Banner, we might very Avell be starting cricket matches with God
Save the Queen.
Rut the Revolution was fought and our strong tradition of personal
privacy was firmly established. Through the years the American so-
ciety has reflected a delicate balance between the rights of individual
citizens and the rights of tlie public at large.
I believe it is one of the most important functions of Government
to protect that balance — to insure that the rights of individuals are
not ignored in our haste to meet the needs of the public.
^lauy citizens today are concerned that tliis balance is being lost.
At times the raw power of the Government, the size of tlie bureaucracy,
the blizzard of regulations and the tax burden seems to overwhelm the
individual. With the Stanford DaUy decision we have encountered a
new and even more disturbing issue — the right of the Government to
search our homes for evidence of someone else's crimes.
While we would all agi'ee that prosecutors should have access to
necessary evidence of criminal activity, I do not believe that forcible,
surprise searches of homes or businesses is an appropriate method for
seeking evidence from innocent third parties. The proper enforcement
of our criminal law does not require that innocent Americans sur-
render their right to privacy.
Tn our considerations we should bear in mind that the im]ilications
of the Stanford Daily decision pose a particular threat to tlie media
and their constitutionally protected fimctions of news gathering and
dissemination. By their A'ery nature the news media conducts investi-
gations of possible criminal activity by a wide variety of people and
organizations.
Tlie fruits of these investigations could almost routinely be con-
sidered "evidence" relating to crimes and would, therefore, be subject
to seizure in unannounced police raids of newspapers, radio, and
television stations.
Tn the majority of the nations of the world there is no free press.
Correspondents and citizens report and read onlv what is approved
by the government. The news media is little more than the propaganda
arm of the state.
Tvccently, there have even been attempts to impose a form of censor-
ship on the American press operating in other countries. The SoA'iet
T'7iion has charged two American reporters with slandering the state-
operated television network and has also publicly warned of dire
oonse([uence for "improper" foreign reporting of the trial of Soviet
dissidents.
These attem]>ts at controlino-the media are repugnant to Americans,
but they are starklv illustrative of the most extreme form of govern-
ment involvement in reporting the news.
In our own country, of course, such extremes would never be toler-
ated. But it is sobering to contemplate the testimony of one of o>ir
earlier witnesses who stntod that his network's newsrooms had never
been entered and searched bv the ])olice in any other foreign country,
but that as a result of the Stanford Daily opinion such practices are
l»eriuissible here.
The legislation which T introduced to alleviate these potential
threats to the ])rivaey of the individual and the freedom of the press
is the Citizen Privacy Protection Amendment of 1978.
97
This bill is designed to establish special procedures for searching
and seizing evidence wlien that evidence is in passession of a person
not ini])licated in criminal activity. A special exception to this ap-
jtroach is incor]K)rate(l when there are specilic indications that the
evidence to be t^ouiiht might be hidden or destroyed.
Snnply put, the Citizens' Privacy Protection Amendment embodies
an attempt to protect the legitimate privacy rights of American
citizens.
I have long felt that it is one of the enduring strengths of our
Constitution tliat it provides so many safeguards to insure fair treat-
ment and due ]irocess foi- those ]iersons suspected of crimes. Put I
also strongly believe that wlien there is no reason to suspect a par-
ticular citizen is in any Avay implicated in criminal activity that
citizen's right to privacy in liis or her home or business should be
strictly adhered to l)y our Government.
We are talking about the power of the Government to invade the
privacy, not of suspected felons, but of individual citizens, business
establishments, the press, for which there is no probable cause to
believe they had committed any criminal act.
It seems to me that we liave a responsibility in our society that the
ultimate degree of protection be accorded citizens who fall into this
category. Ceitainly there are people concerned about the impact of
this decision; a decision which might make it more difficult for the
public generally to have a vigorous press.
Senator Scott, would you like to say something?
Senator Scott. I do not have any comment. Mr. Chairman.
Senator Payk. I Avould like to ask Senator Kaskell to come for-
ward and testify at this point.
Senator Haskell, we appreciate your presence.
Please proceed.
TESTIMONY OF PLOYD K. HASKELL, A U.S. SENATOR FROM THE
STATE OF COLORADO
vScnator Haskell. I would first like to congratulate you, Mr. Chair-
man, for so promptly introducing a bill on this very serious question.
Clearly the Su])reme Court's decision in the case of Zurclier v. Stan-
ford Dally was shocking to many of us.
In my view, the right of each citizen to privacy is an essential and
unalterable guarantee that must be jealously giuirded and with great
vigilance.
Mr. Chairman. I will ask that the balance of my written statement
be inserted in the record.
Senator Rayii. "Without ol)jection, that will appear in the record.
Senator Haskell. ^\\\ Chairman, an ex parte procedure, it seems to
nie. is one that should l)o used sparingly. ^^Hien the ex |)arte procedure
of getting a searcli warrant extends to persons who may have evidence
of crime, not persons who may haA^e committed a crime, then I think a
very dangerous precedent is set in the United States.
I speak not only vis-a-Ais the press, but any private citizen whom
somebody in authority might want to harrass.
It is easy enough to construct an affidavit about information and
belief that John Doe has information relating to a crime. A judge,