to receive it -Gov't got orders from FISC, under FISA, authorizing physical searches and electronic surveillance Significant purpose test: -FISA did not require SURVEILLANCE In Re Sealed (FISC Is gov't entertaining a government to Cases 2002) realistic option of demonstrate that its dealing with an agent of primary purpose in a FP other than through conducting electronic criminal prosecution? surveillance was not If yes, foreign criminal prosecution intelligence collection -Patriot Act's does not need to be amendment to FISA, primary purpose of permitting government investigation to conduct surveillance of agent of foreign power if foreign intelligence is of “significant purpose” such surveillance, did not violate Fourth Amendment. US Persons Army gathering -Is there standing? on the SURVEILLANCE Laird “Chilling” effect (SCOTUS domestically intelligence on civilian Injury in fact (concrete 1st Amendment rights (HUMINT AND 1972) activities that and imminent), causal by the mere existence OSINT) “could relationship between of the Army's cause public disorder” (HUMINT and OSINT) injury and challenged intelligence-gathering, STANDING conduct, AND where plaintiffs likelihood that injury complained of no will be redressed by a specific action against favorable decision them, and where
to receive it -Gov't got orders from FISC, under FISA, authorizing physical searches and electronic surveillance In Re Sealed Cases (FISC 2002) Significant purpose test: Is gov't entertaining a realistic option of dealing with an agent of a FP other than through criminal prosecution? If yes, foreign intelligence collection does not need to be primary purpose of investigation -FISA did not require government to demonstrate that its primary purpose in conducting electronic surveillance was not criminal prosecution -Patriot Act's amendment to FISA, permitting government to conduct surveillance of agent of foreign power if foreign intelligence is “significant purpose” of such surveillance, did not violate Fourth Amendment. SURVEILLANCE Laird (SCOTUS 1972) US Persons domestically Army gathering intelligence on civilian activities that “could cause public disorder” (HUMINT and OSINT) -Is there standing? Injury in fact (concrete and imminent), causal relationship between injury and challenged conduct, AND likelihood that injury will be redressed by a favorable decision “Chilling” effect on the 1st Amendment rights by the mere existence of the Army's intelligence-gathering, where plaintiffs complained of no specific action against them, and where SURVEILLANCE (HUMINT AND OSINT) STANDING
ICTL_Rascoff_Fall_2011_Case_Chart.docx