9-19.200
Introduction
This chapter focuses on the means by which federal prosecutors
may obtain, for evidentiary purposes, documentary material believed
to be in the possession of disinterested third parties. These
provisions have been drafted to be consistent with the previously
published Attorney General's "Guidelines on Methods of Obtaining
Documentary Materials Held by Third Parties," 28 C.F.R., Part 59,
as well as with Section 201 of Title II of the Privacy Protection
Act of 1980, 42 U.S.C. §§ 2000aa et
seq.
The intent of the regulations (28 C.F.R., Part 59) is to
protect against unnecessary invasions of personal privacy and to
recognize the potential for such invasions when the government
seeks to obtain documentary materials from third parties not
themselves under investigation. The general thrust of these
guidelines is that a search warrant should not be used to obtain
documentary materials from a non-suspect, except where the use of
a subpoena or other less intrusive means would jeopardize the
availability or usefulness of the materials sought.
For Government attorneys contemplating the use of a search
warrant directed at seizing materials from disinterested third
parties, different provisions apply depending on whether the person
from whom the materials are sought is: (1) a disinterested third
party (see USAM 9-19.210); (2) a
disinterested third party who is a physician, lawyer, or clergyman
(see USAM 9-19.220 and 230); or
(3) a person possessing the materials sought for the purposes of
public communication (e.g., a newspaper, book, or broadcast) (see
USAM 9-19.240). The use of search
warrants directed at seizing documentary materials from the media
or any "person reasonably believed to have a purpose to disseminate
to the public a newspaper, book, broadcast, or other similar form
of communication" is strictly regulated by statute, see 42 U.S.C.
§§ 2000aa, et seq. Search warrants directed at
seizing materials from other categories of disinterested third
parties are governed by the regulations promulgated in accordance
with that statute, see 28 C.F.R., Part 59 For definitions used in
this chapter, see the Criminal Resource
Manual at 660, restating those set forth at 28 C.F.R.
§ 59(2).
[updated December 2006]
9-19.210
Procedures Where Materials Sought Are in Possession of a
Disinterested Third Party Other than a Person Possessing the Materials for
Purposes of Public Communication
Normally a search warrant should not be used to obtain
documentary materials held by a disinterested third party. A search
warrant may be sought, however, if the use of a subpoena or other
less intrusive means would substantially jeopardize the
availability or usefulness of the materials sought. Except as
provided in USAM 9-19.220, the
application for such a warrant must be authorized by an attorney
for the government. "Attorney for the government" is defined in the
regulations as having the same meaning as found in Rule 54(c) of
the Federal Rules of Criminal Procedure and includes all United
States Attorneys and Assistant United States Attorneys. In
addition, the Department takes the position that the phrase "an
authorized assistant of the Attorney General" set forth in Rule
54(c) as part of the definition of the term "attorney for the
government" is broad enough to include all Department of Justice
attorneys assigned to investigate or prosecute cases and their
supervisors.
An exception to the authorization requirement may be made in
emergency situations, where the immediacy of the need to seize the
materials does not permit an opportunity to secure authorization
from the attorney for the government. In such situations the
application may be authorized by a supervisory law enforcement
officer in the applicant's department or agency. However, the
United States Attorney or supervising Department of Justice
attorney (in a case in which a division of the Department is
directly handling the investigation or prosecution) must be
notified of the authorization and its justifying basis within 24
hours of the authorization. 28 C.F.R. § 59.4(a).
[updated December 2006]
[cited in
USAM 9-19.200;
USAM 9-19.230]
9-19.220
Procedures Where Privileged Materials Sought Are in Possession of a
Disinterested Third Party Physician, Lawyer, or Clergyman
A similar but somewhat different procedure is followed when the
disinterested third party is a physician, lawyer, or clergyman and
the materials sought or other materials likely to be reviewed
during the execution of the search warrant contain confidential
information concerning patients, clients, or parishioners that was
furnished or developed for the purposes of professional counseling
or treatment. As with other disinterested third parties, a search
warrant should normally not be used to obtain such confidential
materials. A warrant should be used only if the use of a subpoena,
or other less intrusive means of obtaining the materials, such as
a request, (1) would substantially jeopardize the availability or
usefulness of the materials sought; (2) access to the materials is
of substantial importance to the investigation or prosecution for
which they are sought; and (3) the application of the warrant has
been approved by the appropriate Deputy Assistant Attorney General
(DAAG) upon the recommendation of the United States Attorney or
supervising Department of Justice attorney (in a case in which a
division of the Department is directly handling the investigation
or prosecution). The appropriate DAAG would be a DAAG for the
division which supervises the underlying offense being investigated
or prosecuted.
If the documentary materials were created or compiled by a
physician but, as a matter of practice, the physician's files are
maintained at a hospital or clinic, the files, for purposes of
these regulations, are to be deemed in the private possession of
the physician; therefore, the regulations would apply if the
physician is a disinterested third party. Such records would,
however, not be deemed in the private possession of the physician
if the hospital or clinic itself were a suspect.
Again, an exception to the authorization requirement may be
made in emergency situations where there is an immediate need to
seize the materials and not enough time to secure DAAG approval. In
such situations, the application may be authorized by the United
States Attorney or the supervising Department of Justice attorney.
However, the appropriate DAAG must be notified of the authorization
and its justifying basis within 72 hours of the authorization.
However, in these cases (physician, lawyer, or clergyman), there is
no provision for an emergency authorization by a supervisory law
enforcement officer in the applicant's department or agency (as is
the case where the materials sought are held by other disinterested
third parties). 28 C.F.R. § 59.4(b)(1) and (2).
[cited in
USAM 9-19.200;
USAM 9-19.210;
USAM 9-19.221;
USAM 9-19.230]
9-19.221
Request for Authorization to a Deputy Assistant Attorney General
Where the materials sought are in the possession of a
disinterested third party physician, lawyer, or clergyman,
application for a warrant must be approved by the appropriate
Deputy Assistant Attorney General as described in
9-19.220. The request for
authorization from the Deputy Assistant Attorney General should be
made in writing and include a copy of the warrant application as
well as a brief description of the facts and circumstances that
form the basis for the recommendation of the authorization. In
addition, the request must include a statement that it is
authorized by the United States Attorney or the supervising
Department of Justice attorney. If the request for authorization is
made orally, or if, in an emergency situation, the application is
authorized by the United States Attorney or the supervising
Department of Justice attorney, a written record, as described
above, must be sent to the Deputy Assistant Attorney General within
seven days. 28 C.F.R. § 59.4(b)(3).
[updated December 2006]
[cited in
USAM 9-13.420]
9-19.230
Procedures Where Materials Sought Are in Possession of a
Disinterested Third Party Professional Involved in a Doctor-Like Therapeutic
Relationship
There may be additional third-party professionals (e.g.,
psychologists, psychiatric social workers, or nurses) who possess
materials containing private information similar to that held by
doctors. The regulations are intended to cover these relationships
as well. In such cases, the United States Attorney (or supervising
Department of Justice attorney) should determine whether a search
for such materials would involve review of extremely confidential
information furnished or developed for purposes of professional
counseling or treatment, and if it would, the provisions described
in USAM 9-19.220 for obtaining
materials from physicians, lawyers, or clergymen must be followed.
At a minimum, the requirements for third party search warrants
described in USAM 9-19.210 must
be observed in all cases. 28 C.F.R. § 59.4(b)(5).
9-19.240
Procedures Where Materials Sought Are in Possession of a Person
Holding Them in Relation to Some Form of Public Communication
Search warrants directed at seizure of any
work product materials or other documentary materials possessed by a person
reasonably believed to have a purpose to disseminate to the public a
newspaper, book, broadcast, or other similar form of public communication
are governed by Title I of the Privacy Act of 1980 ("PPA"),
42 U.S.C. §§ 2000aa, et seq. See
Criminal Resource Manual 661 for the text of
42 U.S.C. § 2000aa et seq.
The PPA prohibits the use of search warrants to obtain any work
product materials or other documentary materials possessed by a
person reasonably believed to have a purpose to disseminate to the
public a newspaper, book, broadcast, or other similar form of
public communication, except under the following limited
circumstances: (1) when there is probable cause to believe that the
person possessing the materials has committed a criminal act to
which the materials relate, unless the alleged offense is the
receipt, possession, communication, or withholding of the materials
or the information contained within, in which case a search warrant
may not be sought unless the alleged offense involves classified
materials or child pornography; or (2) when there is reason to
believe that the immediate seizure of such materials is necessary
to prevent the death of, or serious bodily injury to, a human
being.
If the pertinent documents do not involve work product
materials, the Government may also seek a search warrant under the
following additional circumstances: (1) when there is reason to
believe that giving notice pursuant to a subpoena duces tecum would
result in the destruction, alteration, or concealment of such
materials; or (2) when the materials have not been produced in
response to a court order directing compliance with a subpoena and
either all appellate remedies have been exhausted or there is
reason to believe that the delay caused by further proceedings
relating to the subpoena would threaten the interests of justice.
Considerations pertinent to the determination as to whether giving
advance notice of the Government's interest in obtaining the
materials would be likely to result in the destruction, alteration,
concealment, or transfer of the materials may be found at 28 C.F.R.
§ 59.4(c).
The PPA provides that violations of the Act may result in the
imposition of civil penalties against the Government. Government
attorneys should be particularly aware of the potential for
triggering the protections of the PPA in executing computer
searches, since computers that may contain non-protected evidence
of a crime, such as child pornography, often also contain
legitimate, PPA-protected materials, such as draft newsletters on
topics of public interest.
All applications for warrants issued under the PPA must be
authorized by a Deputy Assistant Attorney General of the Criminal
Division. Questions and requests for approval regarding
computer-related search warrants should be directed to the Computer
Crime and Intellectual Property Section (CCIPS) of the Criminal
Division. Whenever proposed computer-related searches involve the
traditional media, CCIPS will coordinate its review with the Policy
and Statutory Enforcement Unit, of the Criminal Division's Office
of Enforcement Operations. Questions and requests for approval
regarding all non-computer media-related searches should be
directed to the PSEU at (202) 305-4023.
[updated December 2006]
[cited in
USAM 9-19.200]
9-19.400
Non-Applicability in Certain Situations
The guidelines applicable to obtaining documentary materials
held by disinterested third parties (other than those held in
relation to some form of public communication) do not apply to
certain types of investigatory activities and searches. These
include audits; examinations; regulatory, compliance, or
administrative inspections; foreign intelligence or
counterintelligence activities by a government authority pursuant
to otherwise applicable law; border and customs searches; access to
documentary materials for which valid consent has been obtained;
and access to documentary materials that have been abandoned at a
known location or that cannot be obtained by a subpoena because
they are in the possession of a person whose identity is not known
and cannot be determined with reasonable effort.
The guidelines do not supersede any other statutory,
regulatory, or policy limitations on access to or the use or
disclosure of particular types of documentary materials.
9-19.500
Sanctions
Any Federal officer or employee who violates the guidelines set
forth in 28 C.F.R. § 59 is subject to appropriate
disciplinary action by the agency or department by which he/she is
employed. See 28 C.F.R. § 59.6.
9-19.700
Contact Points for Advice and Approval
In cases involving offenses supervised by the Criminal
Division, questions as to the provisions governing methods of
obtaining documentary materials held by disinterested third
parties, as well as inquiries concerning the Deputy Assistant
Attorney General's authorization, should be directed to the Policy
and Statutory Enforcement Unit of the Office of Enforcement
Operations (OEO), at (202) 305-4023, except when the materials at
issue are held by an attorney, in which case inquiries should be
directed to the OEO's Immunity Unit, at (202) 514-5541.
For offenses under the jurisdiction of the Tax Division,
contact the Chief of the appropriate regional Criminal Enforcement
Section of the Tax Division.
For offenses under the jurisdiction of the Civil Rights
Division, contact the Chief of the Criminal Section of the Civil
Rights Division at (202) 514-3204.
For offenses under the jurisdiction of any other division
contact the office of the Assistant Attorney General or Deputy
Assistant Attorney General for the appropriate division.
[updated December 2006]
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