"Intelligence" Searches and Purpose: A Significant Mismatch Between Constitutional Criminal Procedure and the Law of Intelligence-Gathering

Abstract

This article challenges the notion that searches primarily designed to obtain evidence for criminal prosecution are constitutional as long as foreign intelligence is a significant purpose of the government action. The Foreign Intelligence Surveillance Act was amended in 2001 as part of the USA-PATRIOT Act to permit electronic surveillance and physical searches under the more permissive standards than generally allowed under the Fourth Amendment. The article concludes that where the fourth amendment is applicable (it is not applicable to searches unconnected to United States persons or territory), searches primarily undertaken to obtain evidence for criminal prosecution must satisfy the traditional criminal investigative requirements, generally probable cause and a warrant. Any lesser standard would require application of the Special Needs exception. Application of the totality of the circumstances test applicable to that exception indicates that there is no justification to apply the exception. The relevant factors, including the secretive nature of FISA investigations, the limited judicial oversight of FISA orders, the expansion of terrorism-related crimes, the highly intrusive nature of FISA searches, and the minimal hardship to the government, all support the conclusion that the foreign intelligence search of FISA need to be carefully limited in order to serve national security needs and to protect the rights of the public.