WaPo reporter search warrant: The government failed to even acknowledge the Privacy Protection Act of 1980 in its warrant application. “The government’s conduct has disturbed that baseline posture of deference” that it always gets. In re Search of the Real Prop., 2026 U.S. Dist. LEXIS 38139 (E.D. Va. Feb. 24, 2026):
Before reaching the merits, the Court addresses a matter of significant concern: the government’s failure to identify and analyze the Privacy Protection Act of 1980, 42 U.S.C. §§ 2000aa et seq. (“PPA”), in its search warrant application. As the judge who found probable cause and approved the search warrant, the Court acknowledges that it did not independently identify the PPA when reviewing the warrant application. As far as this Court knows, courts have approved search warrants directed at members of the press in only a handful of instances. This Court had never received such an application and, at the time it approved the warrant, was unaware of the PPA. This Court’s review was limited to probable cause, and the Court accepts that gap in its own analysis. But the government’s failure to identify the PPA as applicable to a request for a search warrant on a member of the press—and to analyze it in its warrant application—is another matter. This omission has seriously undermined the Court’s confidence in the government’s disclosures in this proceeding.
The PPA is directed at government lawyers, and its terms require the Attorney General to issue regulations outlining the procedures the government must employ when seeking information from the press. See 42 U.S.C. §2000aa-11. These DOJ regulations, found in 28 C.F.R. Part 50, confirm that subpoenas and search warrants targeting the press are “extraordinary measures, not standard investigatory practices.” 28 C.F.R. § 50.10(a)(3). Recognizing the extraordinary nature of these devices, the regulations require approval at all levels up to the Attorney General when the government seeks a search warrant targeting the press. So does DOJ’s Justice Manual, which is issued to every AUSA throughout the country. See U.S. Dep’t of Just., Just. Manual § 9-13.400. The Court’s communications with the government over two days were not limited to the local AUSA. Counsel from the highest levels of the DOJ participated in at least one of those calls. Many government lawyers had multiple opportunities to identify the PPA as controlling authority and to include an analysis of it in the warrant application. None of them did.
Among other responsibilities, magistrate judges serve as probable cause gatekeepers for search warrants. We communicate with government attorneys multiple times a day during our criminal duty weeks, assessing probable cause for search warrant applications. These requests come in a fast-paced environment. The search warrant the Court approved in this case was one of 46 the government requested that week.
In its day-to-day workings, this Court affords government attorneys a presumption of regularity, including by assuming that federal prosecutors have satisfied their obligation to disclose controlling and relevant authority. The Court extends this latitude to prosecutors because:
[T]hey are designated by statute as the President’s delegates to help him discharge his constitutional responsibility to “take Care that the Laws be faithfully executed.” As a result, the presumption of regularity supports their prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.
United States v. Venable, 769 F. Supp. 2d 976, 984-85 (E.D. Va. 2011) (quoting United States v. Armstrong, 517 U.S. 456, 464 (1996) and U.S. CONST., art. II, § 3)), aff’d, 666 F.3d 893 (4th Cir. 2012).
The government’s conduct has disturbed that baseline posture of deference.
B.
The PPA is far from a model of clarity. Congress enacted it in response to Zurcher v. Stanford Daily, 436 U.S. 547 (1978), and it contains prohibitions, exceptions, and counter-exceptions. Within the same statute, the PPA defines the press differently depending on whether work product materials or documentary materials are at issue. Compare 42 U.S.C. § 2000aa(a) (“a person reasonably believed to have a purpose to disseminate to the public a newspaper” (emphasis added)) with id. § 2000aa(b) (“a person in connection with a purpose to disseminate to the public a newspaper” (emphasis added)). The subsection addressing documentary materials also contains the stray clause “other than work product materials,” id., which read literally, might seem to give the government broader access to work product—a reading that is presumably mistaken. In short, the statute’s structure is complex and its drafting leaves interpretive questions unresolved.
At its core, however, the PPA prohibits any government officer from searching for or seizing “work product materials” or “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.” 42 U.S.C. § 2000aa(a)-(b). The PPA’s coverage extends to anyone engaged in First Amendment-protected communication activities, not just professional journalists. Id.
The PPA creates two categories of protected materials. “Work product materials,” defined in § 2000aa-7(b), include materials created, prepared, or possessed for the purpose of communicating to the public, such as notes, drafts, photographs, and recorded impressions. These receive the PPA’s strongest protection. “Documentary materials,” defined in § 2000aa-7(a), encompass all other materials possessed in connection with a public communication purpose and receive somewhat lesser, though still significant, protection.
The PPA embeds a structural preference for subpoenas over search warrants. See 42 U.S.C. §§ 2000aa-11, 2000aa-12 (requiring “the least intrusive method or means of obtaining such materials”). A subpoena provides the recipient advance notice and the opportunity to challenge or negotiate production before any materials are seized. A search warrant is unannounced, coercive, and disruptive, potentially exposing confidential sources and chilling newsgathering even where the search yields nothing relevant.
Exceptions permitting a search warrant over a subpoena are narrow. …
