"(b) In any action brought under this section the court may award sueh
general damages as may be appropriate as well as punitive damages not to
exceed .'?10,000 for each violation.".

Senator Bath. We are fortunate this morning to have a group of
distinguished Members of Congress, journalists, and experts in crimi-
nal and constitutional law to join in a discussion of these important
issues and to help us seek solutions.

Two of our most distinguished colleagues are the first witnesses this
morning — our distinguished colleague from Kansas, Senator Dole,
and our distinguished colleague from Pennsyhania, Senator Heinz.

Gentlemen, we appreciate your being here. Why don't you just
proceed.

TESTIMONY OE HON. EGBERT DOLE, A U.S. SENATOR FROM THE

STATE OE KANSAS „

Senator Dole. Thank you, Mr. Chairman. ^ ^

First. I would commend Senator Bayh and the subcommittee for
promptly holding this hearing on the implications of the Zurclier v..
Stanford Daily decision, recently handed down by the U.S. Supreme:
Court.

Mr. Chairman, I think you have stated very well the issue before ui?.
I certainly share the vicAvs you have just expressed.

As the Government continues to grow and expand, opportunities
multiply for improper and potentially dangerous intrusions into the
legitimate zone of privacy which every citizen enjoys. As representa-
tives of the people. Congress must remain firm in support of the maxi-
mum personal privacy that can be achieved in a democratic society.

Without doubt, the most important source of protection for individ-
ual privacy is in the fourth amendment to the Constitution. It expresses
an eloquent, unequivocal principle of democratic government, and I
quote :

The right of people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures shall not be violated.

The fourth amendment's guarantees sprang directly from tTie
colonial era when warrantless searches were routinely employed by
British soldiers to enforce the Crown's tax laws. Since then, the sco])e
of fourth amendment protections has been broadened. Through the
14th amendment, it has been made applicable to the States.

This expansion has been concurrent with, and supportive of. the
still-evolving riffht to pi-ivacy to which over\' American is entitled.
The right to privacy has no specific constitutional base. The essential
notion of an individual's right to be left alone by Government is not
found in any one clause or amendment in the Constitution. Instead,
privacy rights are implicit in the scheme of democratic statecraft.



Americans have always felt that the Government should not intrude
into tlieir pei-sonal lives or businesses without an adequate justification.

The existence of a right to privacy is firmly established in constitu-
tional law, but no concrete definition of the scope of that right has been
enunciated. Rather, on a case-by-case basis, the parameters of con-
stitutional protection for privacy are being established.

Zurclicr v. Stanford Daily^ the latest case in this area, has called
into question the continuing viability of constitutional giiarantees of
piivacy as a protection against police searches. The Supreme Couit
held that a person not suspected — and I think this is the key to the
whole issue — of criminal wrongdoing has no greater fourth amend-
ment protection than one imi^licated in a crime. As the Court inter-
preted the 4th and 14th amendments, police may be issued a search
warrant even if a subpena would have been as effective in obtaining
documents or other physical evidence held by third parties not sus-
pected of criminal activity.

The Supreme Court's Stanford Daily decision has also threatened
another freedom essential to the preserv^ation of a democratic govern-
ment — the first amendment guarantee of a free press.

The potentially chilling repercussions of unannounced police
searches of newspapers, broadcasting stations, and other news r.iedia
simply cannot be tolerated in a free society. The public's right to know
can only be protected by a free and uninhibited press. The news media
must also be able to guarantee its sources a reasonable degree of con-
fidentiality. Just as we must guard against unwarranted invasions of
personal privacy, we have a responsibility to reaflinn our commitment
to freedom of the press.

As an initial response to the Stanford Daily decision, I introduced
S. 3162, the Personal Privacy Protection Act. That legislation pi-ovides
an opportunity for an adversary hearing before a search warrant
would issue in most third-party situations.

Today I wdll introduce a revised version of S. 3162, which better
guarantees the rights of all Americans.

The bill I am introducing today, S. 3222. would protect against
searches, such as the one conducted in the Stanford Daily case, by
requiring police to seek a subpena rather than a search warrant. A
search warrant could only be issued in two situations.

First, if the person whose premises are to be searched is suspected
of involvement in the crime under investigation — which is certainly a
lesritimate area — a search w-arrant could be issued and the search con-
ducted without prior notice.

The second exception would permit the issuance of a search warrant
if there was a likelihood tliat the evidence sought by the law enforce-
ment authorities would be destroyed if prior notice were given.

The proper way to protect records is an area of some contention. It
has been suggested by some that the potential evidence should be
segregated. If police have to lock up someone's entire business records
while the court is deciding whether there was any evidence that it
miii-ht l)e useful or relevant. I am not certain what the impact would be.

While the Stanford Daily case involved information gathered by a
newspaper in the normal course of its operations, the Supreme Court's
decision applied to any individual or business. The congressional



response must also insure tluit the rights of all individuals, including
but not limited to the press, arc not infringed.

The fundamental right we are protecting is not freedom of the press,
but rather freedom of all citizens to be secure in their homes and
papers. A search conducted mider a warrant necessarily exposes the
police officer to information not related to the search. To hnd the rel-
evant documents, every item in the hie must be examined. The police
may search every area of an intliNiduaTs home under a search war-
lant. This type of intrusion into personal privacy is simply not
justified if the person is not suspected of a crime. Again, that is the
key — if they are not suspected of any criminal activity.

A subpeiui is preferable to a search warrant for a number of reasons.
First, the subpena is inherently a lesser violation of privacy than a
search. There is no breach of privacy as to documents unrelated to the
investigation. All of the tiles of a doctor, lawyer, journalist, or busi-
nessman would not be exposed to outside view.

Second, a subpena is a lesser intrusion into the private affairs of an
individual or business than a search conducted after the issuance of a
warrant. A subpena requiring the production of physical evidence
allows the individual an opportunity to gatlier the materials in an
orderly manner without disrupting home life or business routine.

I am aware of some of the difficult ]3roblems confronting law en-
forcement officials today. The task of bringing criminals to justice
is more difficult now than ever before.

Yet the issue presented in the Stanford Daily case is substantially
different from most constitutional conflicts that affect law enforce-
ment. It dealt solely with individuals not suspected of any criminal
involvement. The Supreme Court's decision limited the rights of
citizens who may have evidence relating to a crime but have not com-
mitted any criminal offense.

The Stanford Dally case has, in my opinion, overextended tlie
permissible scope of investigative activity. While I understand that
we must balance legitimate expectations of individuals, journalists,
and businesses to privacy with the need for effective enforcement of
the law, I do not think that the procedures sanctioned b}^ the Start ford
Daily decision are fully consistent with American ideals of justice.

Finally, Mr. Chairman, many Americans today justifiably feel that
their rights have been threatened by the Stanford Daily decision.
Congress must act quickly to insure that the doubts of these Ameri-
cans — whether they be individuals, journalists, businessmen, labor
leaders, or whatever — are resolved.

The privacy rights of all citizens must be protected. Effective en-
forcement of the law requires that citizens respect those responsible
for the safety of the community. And that respect can only be estab-
lished when citizens are certain that the law will also respect their
rights.

I certainly look forward, as I know other Members of both the TTouse
and the Senate look forward, to working with the subcommittee to
make certain, if we can, that no deterioration of this mutual respect
occurs.

Senator Batit. Thank you veiy much, Senator Dole.

You say it very well.



8

Senator Dole. I would like to include in the record a copy of the
revised bill that I am froing to introduce today, along with a section-
by-section analysis of it.

Senator Bayh. That will be fine.

[The revised bill, S. 3222, and section-by-section analysis follow :]

[S. 3222, 95th Cong., 2d sess.]

"A BILL To secure and protect the freedom of individuals from unwarranted intrusions

by persons acting under color of law"

Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That this Act may be cited as the ••Personal
Privacy Act of 1978".

FINDINGS

Sec. 2. The Congress finds and declares that —

(1) there is a need to reaffirm the right of the people, as guaranteed by
tlie fourth and fourteenth amendments, to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures ;

(2) the execution of a search warrant against a third party not suspected
of a crime may jeopardize particularly sensitive and privileged privacy in-
terests and may needlessly expose unrelated information to police scrutiny ;

(3) any privacy interests and claims to confidential treatment which exist
'■ may be irretrievably lost once a warrant is executed, whereas the issuance
• of a subpena duces tecum, when no danger of destruction of evidence exists,

is more protective of fourth and fourteenth amendment rights and no less
■efficacious ;

(4) no legitimate law enforcement interest is impaired by the require-
' ment of a subpena duces tecum, and that an opportunity to be heard raises

no impenetrable barrier to the collection of information and the protection
of public safety.

LIMITS OX SEARCH AND SEIZURE

Sec. 3. (a) Except as provided in subsection (b), any person acting under
color of law who has probable cause to believe evidence of a crime is located
on or about the premises in which another person is in possession, custody, or
control may obtain that evidence only through a subpena duces tecum.

(b) (1) A search warrant may be issued only if —

(A) there is probable cause to believe the person in possession, custory. or
control of the evidence to be seized has committed or is committing a criminal
offense ; or

(B) there is reasonable cause to believe the giving of notice pursuant to
a subpena duces tecum would lead to the destruction, concealment, or
alteration of the evidence to be seized.

(c) (1) Any Federal official who violates any provision of this section shall be
fined not more than $10,000. and, for any willful or malicious vioQation, shall he
imprisoned more than one year.

(2) Any State official who violates any position of this section shall be
fined not more than $10,000.

SECTIONAL ANALYSIS OF DOLE PRIVACY LEGISLATION

Section 1 : Title — Personal Privacy Act of 197S.

Section 2: Findings — Congress has the power to implement the Fourth and
Fourteenth Amendments by appropriate legislation. Congress finds that a sult-
poena is a preferable method to obtainevidence from a third party as compared
to a search warrant. Further. Congress finds that use of a subpoena when no
1 livelihood of destruction of the evidence exists will not impair legitimate law
enforcement activities.

Section 3(a) : A subpoena duces tecum for the production of evidence must be
aised in all cases unless one of two exceptions in subsection (b) applies.

(b) a search warrant may issue if :

( 1 ) the ixTson whose premises are to be searched is suspected of involve-
ment in the crime, or



9

(2) prior notice by a subpoena would create a risk that the evidence
would be destroyed.
(c) The penalty for violation of this act is not more than $10,000, and, for
willful or malicious violation by a Federal official, not more than 1 year im-
prisonment.

TESTIMONY OF HON. JOHN H. HEINZ III, A U.S. SENATOR FROM

THE STATE OF PENNSYLVANIA

Senator Heinz. Mr. Chairman, first let me commend the coimnittee
and thank you personally for this opportimity to testify on the
Stanford Daily decision.

It is a great occasion for me to come back to the Judiciary Commit-
tee, on which I served early in tliis Congress as its first nonlawyer.
. I am delighted, when I rotated off the committee, that Senator
"Wallop, who is also a nonlaAvyer, became a member of the committee,
thus carrying on that fine tradition.

I appear before you today as a nonlawyer. but with some thoughts
that I think both lawyers and nonlawyers would be interested in.

Senator Bayh. The committee appreciates the special expertise that
you gathered during those earl}' days on the coniniittee that you now
bring with you. [Laughter.]

Senator Heinz. First, JNIr. Chairman, the committee's interest in the
protection of individual rights is longstanding and widely recognized.

I commend the committee and you, Mr. Chairman, for your decision
to hold these hearing-s in order to evaluate the potential impact of the
Stanford Daily decision on these rights and the need for legislative
protection of them.

I, again, want to thank the connnittee for my own per.sonal oppor-
tunity to contribute to your evaluation of this problem.

I believe that the Stanford Daily decision is a very clear and a ^ery
present threat to the freedom of the press — a freedom which we all
recognize is an essential element of our society. And this is why I do
urge tlie connnittee to act promptly to provide legislative protections
for the press.

The unquestionable potential for erosion of the freedom of the press
inherent in the Stanford Daily decision is why I am today introduc-
ing legislation which would help protect and preserve the crucial first
amendments rights of the press.

I will discuss that legislation in more detail later.

The standards for search warrants articulated in the Stanford Daily
decision could have far-reaching effects throughout our society — effects
which would touch the lives and expectations of every citizen.

As Senator Dole has clearly pointed out, the Stanford Daily de-
cision nnist l)e very carefully analyzed because tlie doctrines articulated
in that decision could lead to "\videsj>read abuses of the freedom of the
press.

However, before we move moiv broadly than the scope of my bill,
which is limited to first amendment freedom of the press ])rotections,
I would advocate some caution, some awareness, and some care —
caution that we do not undermine the protections which Ave now ha\e:
awareness that we are dealing Avith a (•omi)lex body of law that has
taken 200 vears for our courts to define; and care (hat we ai-e not un-



10

leashing a system which could be more subject to abuses than the
present one.

Finally, I would hope that any legislation that Congress enacts in-
sures that law enforcers have sufficient means to protect the society at
large and to promote the security of its citizens.

Let me discuss the need for the legislation that I will introduce later
today.

The soundness of our democracy is underpinnned by the flow of in-
formation which results from a free, critical, and probing press. AVe
nuist assure that this freedom, this criticism, and this investigative
capacity continues M'ithout diminution, without dilution, and without
interruption.

The Sfanfoi'd Dally decision threatens to erode the freedom of the
press and to undermine the information-gathering process which is so
essential to it.

In that decision, the Court decided that in order to justify issuing a
search warrant, it is not necessary for a law enforcer to assert that the
individual in possession of the property to be seized has, or is acting,
criminally. That case involved a search of the offices of a college
newspaper.

The Stanford Daily decision menaces all press offices with the possi-
bility of unaniiounced, disruptive searches.

The high standards and professionalism of those who enforce the
law may render this possibility remote. But, nonetheless, in the vital
area of the freedom of the press, we can ill ali'ord to take risks.

Moreo^•er, it is not necessary that actual abuses occur in order to
silence confidential sources which are vital to the flow of information.
The mere perception that such abuses might, or will, occur is sufficient
to discourage those sources from coming forward to arm the press with
those facts which are essential to its focus and operation.

The legislation which I am introducing today would provide that
no person acting under the color of laAV shall be able to secure a search
warrant directed at places under the control of reporters or news or-
ganizations unless that person has established probable cause that such
reporter or news organization has committed, or is committing, a
criminal offense.

Additionally, the bill establishes civil and criminal remedies and
authorizes the award of reasonable attorney fees to prevailing parties.

I doubt, Mr. Chairman, that there is much disagreement that legis-
lation that goes at least as far as that which I propose is necessary. The
pi'otection of the freedom of the press demands no less.

The ({uestion that this connnittee correctly addresses: the question
which is raised by the legislation which has been introduced by Sena-
toi- Dole and the chairman is : Do we need more ?

The chairman's bill, S. "104. the Citizen's Privacy Protection Act
of 10T8, and Senator Dole's bill, S. 8162, the Personal Privacy
Act of 1978, answers this question, as I understand these proposals
aflirmatively.

I roinpliment both you and Senator Dole on your responsible efforts
to address all the })roblems raised by the Stanford Da'ily decision. The
need to protect the privacy of our citizens cannot be questioned.

However, before we take steps which could change the requirements
for all search warrants, we should move very cautiously and very de-



11

liberately, reaching our decisions only after all potential impacts in
this complex field are evaluated.

In effect, :Mr. Chairman, I am argninc: for very rapid action to pro-
tect the freedom of the press and somewhat more considered action
before we extend the basic requirements involved in your bill or my
bill to all search warrants.

I would like to briefly discuss a few examples of the kinds of ques-
tions which I believe should be answered before we adopt broad legis-
lation concerning search warrants, such as S. 3164 or S. 3162.

I am concerned with the impact of the standards— let us say, in S-
3164 — for search warrants.

Section 1202 of the chairman's bill would authorize a search warrant
if "there is probable cause to believe the person or persons in posses-
sion of the evidence may be involved in the crime under investigation."'
The courts would have broad discretion to interpret this language.
The term "may be involved" is, as I understand it, a new standard. And,
loosely interpreted, it might have the effect of setting no standard at
all.

Strictly interpreted, it might prevent law enforcers from carrying
out their necessary public responsibilities.

^\niat I am saying is that there is good reason for great caution
if we are going to legislate a new standard, such as the "may be in-
volved" standard.

The present standards for the issuance of a search warrant have
evolved through 200 years of judicial interpretation of the Constitu-
tion.

The basic requirements are known : Probable cause exists to believe
that a crime has been committed and that evidence of that crime is lo-
cated on a specified premise and that the evidence to be seized is
described with particularity.

If we are to legislate a new standard, we should do so only after a
careful, detailed analysis of how the judicial interpretation of that
standard might affect existing standards.

We must consider what the practical effects of this new standard
might be. "Will it simply result in frequent assertions, for example, by
law^ enforcers that law-abiding citizens "may be involved in a crime"?
And what would he the effect, if this were the case, of such assertions
on the reputation of innocent citizens?

We must be certain that the protections we establish are, in fact, pro-
tections and not vehicles for abuse.

Another example : if the courts construe the "may be involved"
standard broadly, the press might be given less protection than it
would under the "has committed or is committing" criminal act stand-
ard present in the legislation I am introducing today.

Senator Bayii. I don't want to make a big issue out of this, but I am
sure you are familiar with the fact that under the Stanfoi^d Daily case,
there is no standard at all.

A person can be totally innocent. The searchers can know you com-
mittcnl no crime, but they can search anyway — whether you are a news-
paper or an individual.

Senator ITeixz. I have read vei-y carefully the Court's decision, and I
am aware that the standard which has been applied is the one that we'

42-190— 79 2



12

have been using for 200 years which has been drawn from many Court
interpretations of the fourth amendment over this period.

The Court did not set a standard. Tlie Senator from Indiana is en-
tirely correct. The Court reaffirmed a standard that has been operative
for a very long period.

Let me just finish the testimony, and I would be happy to answer to
the best of my ability any of the chairman's questions.

What I am arguing for, if the chairman will permit me, is a very
careful legislation of a standard.

As I just said a moment ago, my concern is that if we choose a stand-
ard, we better know what it means. Otherwise, the press may, along
with everybody else, receive less protection than I think the Senator
would want to provide.

(_)nc of the things that I would observe, finally, is that legislation
which defines standards for all search warrants "could, and probably
would, have a, profound impact on law enforcement at all levels — Fed-
eral. State and local.

"We will have toanticipate, as rosponsil)le legislators, the application
of any legislation in a wide variety of areas.

F'or instance, will the legislation impede the ability of law enforcers
to ferret out corporate crimes when inculpating documents and records
are in the possession of other innocent corporations with which the
wrongdoer transacts business ?

A'Miat will be the impact of the legislation on various State laws?

For example, the availability of a subpena in my home State of
Pennsylvania is limited. It is my understanding that Pennsylvania
laM' enforcers can only secure a subpena if an arrest has been made
and. second, if a trial date has been set.

Thus, at least in my State, law enforcement officers acting to protect
the public will not be able to secure a subpena, as would be required
in some of the legislation, at an early date in an investigation.

Tins could seriously impair their ability to properly prepare the
juiblic's case against the alleged wrongdoer.

^Ir. Chairman, the complexity of this field, I submit, is unques-
tionable.

T hope that my concerns and my questions will aid the committee
iu its deliberations.

The committee, I believe, is undertaking a very serious task: and
I would expect this committee, as it has so often in the past, to move
not only with diligence but with prudence.

I thank the chairman.

Senator Bayh. Thank you. Senator Heinz.

I appreciate the fact that both you and Senator Dole have taken the
time this morning.