By Albert Fox Cahn and Annie DeVoe
When the entire Marion, Kansas, police department raided the small city’s only newsroom last week it drew national condemnation. At least 34 news organizations, including The New York Times, Associated Press, and CNN decried the attack on the Marion County Record as an attack on freedom of the press and the First Amendment.
Thankfully, newsroom raids are rare and constitutionally suspect in the U.S. But the alarming reality is that while newsroom raids may be rare in America, police surveillance of journalists is not.
From fake social media accounts to counter-terrorism databases, law enforcement agencies frequently use the sprawling surveillance systems that define American policing to track the press. And unlike with newsroom raids, the courts often never know.
Very few judges would sign off on the type of raid that took place in Marion, which came after a local resident complained that the paper violated Kansas’ identity theft law by obtaining records of her past DUI citation. Rather than voluntarily requesting the records, or even serving the paper a subpoena, police requested and—a judge approved—a full-fledged warrant, authorizing officers to knock down the door and take the paper’s files, computers, and other records.
Such an approach would be considered heavy-handed with a lot of businesses, especially for such a far-fetched identity theft allegation, but it violates federal law when targeted at a newspaper. That’s because of the obscure Privacy Protection Act of 1980, which prohibits police from searching newsrooms without first serving a subpoena and exhausting all other options. The press freedom measure was enacted swiftly after the Supreme court ruled that it was constitutional for police to raid the Stanford Daily, looking for photos of a political demonstration.
On its face, the same federal law that bans newspaper raids should also outlaw electronic surveillance of journalists, but the reality is quite different.