Informers revisited: Government surveillance of domestic political organizations and the fourth and first amendments
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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This article uses The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Security/Terrorism Investigations (1983) as a springboard for examining the fourth and first amendment implications of government surveillance of domestic political organizations by informers, for exploring the question of whether the surveillance of such groups by informers violates those persons' legitimate expectations of privacy, and for arguing that, since such surveillance not only implicates the fourth amendment but also may have a chilling effect upon the exercise of first amendment rights, the fourth amendment must be read more strictly than usual when domestic political surveillance is in issue.The article observes that existing constitutional law doctrine -- the Supreme Court's informer cases -- is inconsistent with modern fourth amendment analysis and that the Court has not yet considered the impact of first amendment values on its fourth amendment cases. The article articulates a modern fourth amendment analysis that places expectations-of-privacy analysis in a central position in the scope-of-coverage area. It proposes that the public-interest model of fourth amendment analysis (which views the fourth amendment as a dynamic construct mediating between the collective need for protection of individual privacy and the need for effective government action for the maintenance of social order) is particularly suited to fact patterns involving government surveillance of domestic political organizations by informer. The article then surveys the old informer cases and demonstrates that, when analyzed in light of the public-interest model of modern fourth amendment law, these cases unnecessarily and inappropriately use assumption-of-risk theory which, in effect, insulates the government conduct in question from constitutional scrutiny. To account for the impact of first amendment values on underlying fourth amendment principles, the article proposes that the rule of "scrupulous exactitude," developed in fourth and first amendment prior-restraint cases, be applied where political surveillance by informer is involved. The article asserts that application of this rule to political surveillance could well create the result that an expectation of privacy as against a government undercover operation in the realm of political activity is reasonable and legitimate, whereas an analogous expectation against a government undercover operation in the realm of criminal activity is unreasonable and illegitimate.
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