It is quite possible that under federal law, the Kern County Sheriff’s Office illegally seized two cellphone videos from citizens.
The Privacy Protection Act, 42 U.S.C. 2000aa(a) (hereafter PPA), states:
Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product 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….
This law provides that if a person takes a video of police action and intends to disseminate it to the public, the police can only obtain the video by subpoena, not by a search warrant. In this case neither of the individuals who had their property seized were suspects in the crime being investigated, the death of David Silva at the hands of Kern County Sheriff’s deputies, nor were they being arrested.
The sheriff’s office was aware of the video because the individual that taped the beating called 911.
Further, that individual informed the 911 personnel that she intended to disseminate the video to the public (at 0:46 of the call), saying “I’m sending it to the news.” At this point, the Sheriff’s office was on notice that this was “work product” protected by the Privacy Protection Act, and should have been obtained by subpoena, not by a search warrant. Indeed, the law specifically provides that a warrant can only be used after a subpoena has failed to obtain the material.
This is clearly established law, first ruled on 20 years ago. In 1993, the United States Secret Service raided a computer game company under a search warrant, and seized a large amount of files. Included in these files was material that was to be published and disseminated to the public. The company immediately notified the Secret Service of this, which promptly ignored the company and refused to return the material to it. Note that the company was not a suspect in the criminal investigation. The court held that the United States was liable to the company for damages for each and every day that they held the material after having been notified of its character under the PPA. Steve Jackson Games v. United States Secret Serv., 816 F. Supp. 432 (W.D. Tex. 1994), aff’d 36 F.3d 457 (5th Cir. 1994). Steve Jackson Games were awarded over $ 50,000 in damages, plus $ 195,000 in attorney fees at the trial court level.
This has continued to hold true in other cases. See generally Morse v. Regents of the Univ. of Cal., 821 F. Supp. 2d 1112 (N.D. Cal. 2011) (holding that officers and chief of police were not entitled to immunity for PPA violation); Citicasters v. McCaskill, 89 F.3d 1350 (8th Cir. 1996) (PPA requires use of a subpoena unless a listed exception is met); Minneapolis Star & Tribune Co. v. United States, 713 F. Supp. 1308 (D. Minn. 1989) (comments in dicta, case is on attorney fees following summary judgment for violating PPA by police seizure).
Note that every day the video is held by the sheriff’s office without returning it to the owner increases the damages, as the video could easily be sold to any number of news providers.
I’m surprised that the attorneys representing the videographers have not mentioned this at all.
Related articles
- Kern County man dies after alleged beating by deputies (latimes.com)
- Kern County sheriff defends seizure of video of deadly encounter (mercurynews.com)
- Sheriff’s Deputies Seize Eye-Witness Video After Beating Man to Death (disinfo.com)
- Bakersfield cops and CHP beat man to death while he begs for his life (bakersfieldcalifornian.com)
- Nothing To Salvage in Kern County (simplejustice.us)
- California Deputies Seize Phones from Witnesses After Beating Man to Death (photographyisnotacrime.com)
- Kern County sheriff asks FBI to investigate man’s beating death (democraticunderground.com)
ExCop-Lawyer 
May 17, 2013 @ 20:40:59
Steve Jackson Games isn’t a computer game company (at least not primarily). They’re a pencil & paper roleplaying game company. A book publisher, in other words.
The documents the Secret Service walked out the door with and refused to return included the completed manuscript of their latest book, just a few days before it would have gone to the printer. This prior restraint nearly drove the company out of business.
The Secret Service was so poorly educated on computers that they mistook a work of fiction that described imaginary people hacking computers that did not exist then (and still don’t exist now) using techniques that also do not exist (then or now). In the words of one Secret Service agent, the book was a “handbook for computer crime.”
May 18, 2013 @ 15:23:04
From Kurt Schultz, posted as a comment on another post:
Take a look at 42 USC 2000aa
If your cell phone contains any recoding for subsequent publication, the LEO is in criminal violation of federal law by searching it (unless you allow them to).
In order for the provisions of 42 USC 2000aa to apply, your recording equipment must carry a warning label that it contains “work product material” as intended in 42 USC 2000aa-7(b). Without such a label, ignorance of the law IS an excuse for LEOs.
May 18, 2013 @ 15:37:30
Actually Kurt, your information is completely wrong. The statute (42 USC 2000aa § 1 et seq.) says nothing about any criminal violations, and does not provide for criminal penalties. It provides for civil actions only.
In addition, the statute does not provide for a “warning label” anywhere. Furthermore, § 7(b) does not have the word “warning” or “label” anywhere in it, nor have any court decisions added that requirement.
Nor does 28 CFR § 59.1 et seq. have any language of the sort that you claim.
Thanks for playing though.
May 18, 2013 @ 16:09:55
EC-LS:
You are correct in that the cited section does not require a warning label.
That requirement was established in case law, when Steve Jackson Games tried to prosecute the US Secret Service for their violations under the section.
The judge threw out SJG’s claim, stating that the SS hadn’t been adequately warned that they were violating the law.
For the background material, read Bruce Stirling’s “The Hacker Crackdown”. This subsequent requirement for warning labels is not mentioned there, but is referenced in some of the follow-up material. The attempted prosecution of the SS happened after the book was written.
I’m not playing – this effects me professionally. I publish, usually five days a week.
Thank you for establishing this forum.
Difdi:
The Secret Service wasn’t looking for a manual on hacking, they were looking for the results of an illicit raid against a telcom operator. That they got SJG’s about-to-be-released game was incidental.
May 18, 2013 @ 17:55:50
Again, you are not correct. SJG won over $ 50K in damages and over $ 195K in attorney fees at the trial court level, as noted in the opinion. See Steve Jackson Games v. United States Secret Serv., 816 F. Supp. 432 (W.D. Tex. 1994), aff’d 36 F.3d 457 (5th Cir. 1994).
I read the actual opinion, not a self-published e-book about the case, which clearly found the U.S. Secret Service liable after they were notified of the fact the material was intended for publication.
May 18, 2013 @ 19:25:21
Yes, SJG was awarded damages via civil action.
Why were the US Secret Service agents involved not prosecuted for the criminal violation:? The judge said it was because they had not been warned that it was a violation, therefore they didn’t know they were committing a crime. The US Secret Service wasn’t notified by SJC that it was a crime until weeks or months after the event (partly SJG’s fault, in that they didn’t know it was a crime either, at least until after the event).
This decision isn’t shown in the e-book, or in the opinion about the civil action. IIRC, this is shown in the opinion that rejected the claims in the criminal case. What I don’t remember is whether the civil and criminal actions were initiated simultaneously, or if the Civil action had to wait for a decision in the Criminal trial before getting underway.
Warning an LEO that your equipment contains “work product material” when you are not physically present at the time they want to seize your equipment presents some problems. Using a warning label is a presumptive solution, but one that should be adequate (especially if the label has to be moved out of the way to initiate operation of the equuipment). Using a verbal warning (if you are actually present at the time of attempted search or seizure) may or may not be sufficient warning. I’m not sure I could remember “42 USC section 2000aa et sequalia” if I was in a stressful encounter.
If I used my cell phone or my cameras for publishing, I’d have a warning labels on all of them. Since I don’t do that, there’s no point to try to protect the equipment against search and seizure (except, perhaps, for the typical inconvenience such a search would cause).
“The Hacker Crackdown” isn’t the authority to cite in this matter — but the book does present (as I said) the background material that’s important in this case.
May 18, 2013 @ 21:06:36
Exactly where is it a crime? Cite the statute and language that makes it a crime. Let me give you a tip. Look for words like “a person commits an offense when…” to clue you in on where the crime is.
There were no criminal charges because there was no crime committed. Secondly, a judge in a civil action has no authority to bar criminal charges prior to an indictment or information. Since there was no criminal case, there are no records of it.
Finally, while a warning label may be a good idea, it is not required by law, nor is the presence or absence of the label dispositive.
May 19, 2013 @ 16:14:15
Damn I love this blog. Even the comments section is interesting and informative.
Kern County Videos Released from One Cellphone | ExCop-LawStudent
May 21, 2013 @ 21:29:42
May 25, 2013 @ 10:49:18
About 2-3 weeks ago my own nephew was nearly beaten unconscious by these deputies. His family called the Sheriff’s office for assistance in transporting him to the hospital. Instead, they threw him in the back of a cruiser and halfway to Bakersfield took him out of the car and beat the everloving crap out of him….in front of witnesses. They threatened to kill him and did it again at the jail. There was at least one other prisoner who was also beaten nearly unconscious. My nephew is a grandfather who has NO criminal record, doesn’t drink or do drugs. He has brittle bone disease and the Sheriff and his deputies beat him anyway. They held him for 3 days at the jail and then turned him loose with no charges filed. My nephew has 8-9 broken ribs, a broken back, shoulder and arm. He also has a head injury. Charges have been filed with the State AGs office and the FBI. A lawsuit has been filed and criminal charges have been requested.
THIS is the monster you call the Kern County Sheriff. He and his deputies are committing murder and getting away with it, until now. If you know of anyone who has had similar treatment, NOW is the time for them to come forward.
Enough is enough.
Linda Hansen
Palm Coast, FL