Police quest for Illinois student's recorded interview is a timely Privacy Protection Act reminder



It started as a routine news item about two young business owners in Carbondale, Ill., who were having trouble getting a liquor license to operate a bar. But one stray quote in the story, which probably seemed unimportant at the time, has set up a potential confrontation between police and press rights.

The Daily Egyptian of Southern Illinois University reports that police told the newspaper they will be seeking a search warrant or a subpoena to obtain any tapes of reporter Tara Kulash's interview with tavern owner Kevin Kirkwood.

Police are interested in the interview because, on June 1, the newspaper quoted Kirkwood suggesting that then-mayor Brad Cole stalled the bar's liquor-license application even though the application contained everything Cole said was necessary. "I had one meeting with (Cole) that I actually recorded,” Kirkwood told the newspaper. “He told me to have regular hours, to submit him a lease, to do all the work, and then he would consider my license. He would send it to the liquor advisory board, but he didn’t even after I did all that.”

Kirkwood has since qualified that statement and said he only "mentally" recorded the conversation -- but that did not stop police from raiding Kirkwood's home June 7 and, according to Kirkwood, seizing cellphones, memory cards and other devices. Illinois law makes it a felony to record a conversation without the consent of all participants.

It is one thing for police to search a private individual's home with a warrant -- but it is quite another to search a newsroom. And that is why the Daily Egyptian's situation provides a valuable reminder about the federal Privacy Protection Act.

In 1980, Congress enacted the "anti-newsroom-search law," a/k/a the Privacy Protection Act, specifically in response to a Supreme Court ruling finding no laws were broken when police raided the newsroom of the Stanford Daily newspaper in search of unpublished photos of demonstrators.

The Act provides that, with very limited exceptions, police may never search places where journalists store their unpublished information without first obtaining a subpoena from a court after an opportunity for the journalist to respond. So if it is true that police told the Daily Egyptian that they were considering obtaining a "warrant" to search the newsroom, then they need to go back and reread federal law -- because getting this one wrong can be embarrassing and costly.

The importance of allowing a hearing before a search is that journalists' unpublished information often is protected from disclosure under state shield laws. Typically, shield laws enable journalists to refrain from disclosing confidential information in a criminal investigation unless police can make a strong showing of necessity. A pre-search hearing enables a judge to determine whether the material sought by police falls within the reporter's privilege. The Illinois reporter shield statute has been applied relatively broadly, and should undoubtedly extend to a student reporter for a well-established publication such as the Daily Egyptian.

While good citizenship may impel all of us to instinctively cooperate in police investigations, the managing editor of the Daily Egyptian explained perfectly why journalists must at times put the integrity of the news-gathering process ahead of their personal impulse to be helpful: "[N]o news organization can allow itself to become an arm of the police. Sources – confidential or not – must be able to speak freely to reporters without fear that anything they say can end up in the hands of the police."

The lesson for all student journalists is, no matter how forcefully the police demand access to your notes, photos or recordings, you should -- politely and respectfully -- cite the Privacy Protection Act and ask for time to consult with legal counsel before complying.

Tagged: confidentiality, Reporter Shield