In re: Sealed Case Nos. 02-001, 02-002
Foreign Intelligence Surveillance Court of Review
310 F.3d 717 (2002)
After courts interpreted FISA's original "purpose" language to require surveillance be conducted primarily for foreign intelligence purposes (rather than criminal prosecution), the DOJ and Attorney General built procedural walls preventing FBI intelligence officers from communicating with law enforcement agents; the 2001 Patriot Act amended FISA's language to "significant purpose" and expressly allowed intelligence officers to consult and coordinate with law enforcement. When the government submitted a 2002 surveillance application, the FISA court granted it but imposed restrictions barring law enforcement officials from making recommendations to intelligence officials, despite the Patriot Act's express allowance of such coordination; the government appealed, arguing the underlying "primary purpose" test was never a legitimate construction of FISA and, in any event, the Patriot Act had superseded it.
Whether alternative procedures replacing the traditional warrant requirement are more likely to be found constitutional when they incorporate safeguards comparable to those the Fourth Amendment would otherwise require.