Case Who and Facts Test Holding Type Where Domestic -US Citizen -Is it domestic - 4th Amendment SURVEILLANCE Keith (SCOTUS -Evidence at trial: tape surveillance for national governs domestic (electronic) 1972) obtained without a security? intelligence warrant If so, prior judicial -Congress did not approval required create an exception to (something like a Title III for national warrant) security for domestic surveillance (simply did not want to legislate) (4th Domestic -Non-US citizen passing -Primary Purpose Test: The law of intelligence SURVEILLANCE Truong Cir. App. info to informant Intelligence gathering: gathering should be (electronic) 1980) overseas. 4th amendment warrant shaped by what the -Surveilled electronically not necessary government is without a warrant. Criminal Prosecution: attempting to do with -Original goal: once purpose shifts, 4th the knowledge it is intelligence; switches to amendment warrant trying to obtain. criminal investigation at necessary a certain point. Domestic - Executive officers -Is it domestic physical -Unclear if 4th SURVEILLANCE Ehrlichman (D.C. App. surveillance for national amendment exception (physical) broke into US citizen’s 1976) office to obtain records security? to physical searches for of a patient who leaked If so, presidential national security, but if docs to media authorization required there is, President needs to specifically authorize International -US telecoms directed by -Warrant requirement: Foreign intelligence SURVEILLANCE In re and domestic executive to give them Significant Purpose exception exists when (electronic) Directives (FISC 2008) access to their Test: Purpose that goes surveillance is information without beyond typical criminal conducted to obtain consulting lawyers investigation = foreign intelligence for -For wholesale exception to the national security
Case Who and Where Facts Test Holding Type Keith (SCOTUS 1972) Domestic -US Citizen -Evidence at trial: tape obtained without a warrant -Is it domestic surveillance for national security? If so, prior judicial approval required (something like a warrant) - 4th Amendment governs domestic intelligence -Congress did not create an exception to Title III for national security for domestic surveillance (simply did not want to legislate) SURVEILLANCE (electronic) Truong (4th Cir. App. 1980) Domestic -Non-US citizen passing info to informant overseas. -Surveilled electronically without a warrant. -Original goal: intelligence; switches to criminal investigation at a certain point. -Primary Purpose Test: Intelligence gathering: 4th amendment warrant not necessary Criminal Prosecution: once purpose shifts, 4th amendment warrant necessary The law of intelligence gathering should be shaped by what the government is attempting to do with the knowledge it is trying to obtain. SURVEILLANCE (electronic) Ehrlichman (D.C. App. 1976) Domestic - Executive officers broke into US citizen’s office to obtain records of a patient who leaked docs to media -Is it domestic physical surveillance for national security? If so, presidential authorization required -Unclear if 4th amendment exception to physical searches for national security, but if there is, President needs to specifically authorize SURVEILLANCE (physical) In re Directives (FISC 2008) International and domestic -US telecoms directed by executive to give them access to their information without consulting lawyers -For wholesale -Warrant requirement: Significant Purpose Test: Purpose that goes beyond typical criminal investigation = exception to the Foreign intelligence exception exists when surveillance is conducted to obtain foreign intelligence for national security SURVEILLANCE (electronic)
ICTL_Rascoff_Fall_2011_Case_Chart.docx