The
Privacy Protection Act in the Digital Age
Leslie
K. Penny
Module
5 Research Assignment 3
Chancellor
University
The
Privacy Protection Act in the Digital Age
The following essay covers The Privacy Protection Act and
some key elements. A brief introduction
of the act and what it means will be stated and the following questions will be
answered: what is the importance of the PPA for law enforcement who deal with
digital evidence and why, identify the most significant case thus far regarding
PPA, identify whether violations of the PPA are considered civil or criminal
and conclude whether evidence seized in violation of the PPA can be
suppressed.
The Privacy Protection Act of 1980 was put in place to protect
journalists from having to hand over "any work product and documentary
materials, including sources, before it is disseminated to the public" (The Privacy Protection Act of 1980) to law enforcement. Other exceptions are "materials that include
mental impressions, conclusions, or theories" (Privacy Protection Act, 2012), This was a time before the internet became
mainstream, rife with digital media that is captured every second by
journalists and random citizens. And
with the growth of the internet and those who use it, comes a growth of digital
crime hence the importance of PPA to the law enforcement officials dealing with
evidence of a digital nature.
As cybertelcom.org states, the PPA has seen new issues
arise in computer cases dealing with digital data (Privacy Protection Act, 2012). The first issue, that was mentioned above,
being the influx of users since the World Wide Web became mainstream which expanded
the scope of all the individuals "involved in First Amendment
activities" who could be anyone that has a computer or has access to the
internet that may have or distribute materials that are protected by the PPA on
their media device(s) (Privacy Protection Act, 2012).
The site goes on to say that the second reason as to why
PPA issues are brought to light in computer cases revolves around the language
of the statute. The "statute does
not explicitly rule out liability following incidental seizures of
PPA-protected materials" (Privacy Protection Act, 2012). Therefore, these types of seizures possibly
will result when law enforcement "search for and seize computer-stored
contraband or evidence of crime that is commingled with PPA-protected
material" (Privacy Protection Act, 2012). Meaning, if the
evidence and the PPA-protected material are commingled and the computer is
seized, then the PPA could possibly be interpreted to prohibit these types of
seizures which could very well bar the search and seizure of a suspected
offender's computer (Privacy Protection Act, 2012). This could be a huge dilemma for law
enforcement by way of interpretation.
It is important to point out, in regards to the law
enforcement perspective, the importance of the PPA in dealing with digital
evidence because there are several exceptions that law enforcement can take
advantage of to get the evidence to make their case. Certain searches do not violate the PPA
which, to this writer, is a law enforcements ticket to the digital data they
need. The PPA does not apply to
"contraband or the fruits of a crime or things otherwise criminally
possessed, or property designed or intended for use, or which is or has been
used as, the means of committing a criminal offense" (Privacy Protection Act, 2012).
The PPA also "does not apply if there is probable
cause to believe that the person possessing such materials has committed or is
committing the criminal offense to which the materials relate" (Privacy Protection Act, 2012). The PPA does not apply in emergency
situations if there is grounds to believe that the direct seizure of materials
is essential to prevent death or serious bodily harm (Privacy Protection Act, 2012). One last thing that the PPA does not apply
for is if a subpoena would be inadequate, meaning the "search for or
seizure of documentary materials as defined by 2000aa-7(a)", "would
not result in the production of the materials" in question (Privacy Protection Act, 2012).
Its important to point out that violations of the Privacy
Protection Act does NOT result in the suppression of the evidence, "http://www.cybertelecom.org/privacy/ppa.htm". However, if any violations are found, they
can result in a civil suit seeking damages against the government entity that
employed the officers to execute the search (Privacy Protection Act, 2012). The
case, Davis v. Gracey 1997, made it so that individual municipal officers
would not have civil suits filed against them "in their personal
capacities", it would be filed against, as mentioned above, the governing
entity, but only if the governing entity has waived sovereign immunity (Privacy Protection Act, 2012). If that is not the case, and the state does
not waive its sovereign immunity, which makes it immune from a civil suit, then
Barnes v. State 1992, sets forth that
individual agents can be "held liable for acts within the scope or under
the color of their employment subject to a reasonable good faith defense" (Privacy Protection Act, 2012). So, it is reasonable to ascertain that
violations are prevented as much as possible.
This could be detrimental to a law enforcement officers career and
financial well being.
This writer believes the above case to be of importance
thus far regarding PPA. But the
following case is of high significance in regards to PPA. Guest
v. Leis 2001, brought to light the difficulty of separating offending
material from other material, that could be deemed innocent, on the computer,
at the site of search, especially if the owner is not cooperating with the
execution of the search warrant (Privacy Protection Act, 2012). In regards to this case, "the court
refused to find PPA-liability for incidental seizures; to construe the PPA
otherwise would prevent police in many cases from seizing evidence located on a
computer" (Privacy Protection Act, 2012). However, the court cautioned in this case
that even though the accompanying seizure of
PPA linked work and documentary resources did not violate the PPA,
"the subsequent search of such material was probably forbidden" (Privacy Protection Act, 2012).
In
conclusion, even though the Privacy Protection Plan is put in place to protect
the privacy of our citizens, it can also be a hindrance to combating the bad
guys in the digital world. The
importance to law enforcement dealing with digital evidence is clear. Our law enforcement personnel must be extra
vigilant and take precautionary steps as to not violate the PPA. Thankfully, there are some exceptions put in
place that benefit the crime fighting side of things instead of the
offender.
Works Cited
Privacy Protection Act. (2012, 02 07). Retrieved 12 02, 2012, from Cyber
Telecom: http://www.cybertelecom.org/privacy/ppa.htm
The Privacy
Protection Act of 1980. (n.d.).
Retrieved 12 02, 2012, from epic.org: http://epic.org/privacy/ppa/
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