9-19.000 - Documentary Material Held By Third Parties

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 JM 9-19.210); (2) a disinterested third party who is a physician, lawyer, or clergyman (see JM 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 JM 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.

[updated January 2020]

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 JM 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 1(b) 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 "Attorney General or an authorized assistant" set forth in Rule 1(b) 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 October 2012] [cited in JM 9-19.200; JM 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 JM 9-19.200; JM 9-19.210; JM 9-19.221; JM 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 JM 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 JM 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 JM 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.

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 January 2020] [cited in JM 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.

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 October 2010]