It’s easy to be cynical about government surveillance. In recent years, a parade of Orwellian disclosures have been making headlines. The FBI, for example, is hacking into computers that run anonymizing software. The NSA is vacuuming up domestic phone records. Even local police departments are getting in on the act, tracking cellphone location history and intercepting signals in realtime.
Perhaps 2014 is not quite 1984, though. This course explores how American law facilitates electronic surveillance—but also substantially constrains it. You will learn the legal procedures that police and intelligence agencies have at their disposal, as well as the security and privacy safeguards built into those procedures. The material also provides brief, not-too-geeky technical explanations of some common surveillance methods.
We will begin with a brief overview of how surveillance fits into the American legal system. We will also discuss how surveillance issues can be litigated.
II. The Basics of Surveillance Law
Next, we will review established police surveillance procedures. Using telephone technology as a simple starting point, we will work through various sorts of data that investigators might seek to access—and the constitutional and statutory safeguards on that data.
III. Applying Surveillance Law to Information Technology
Having learned the basics, we will turn to more modern technologies. We will discuss snooping on email, web browsing, and mobile phone location, as well as hacking into devices.
IV. Compelled Assistance to Law Enforcement
What happens when data is technically protected? In this section, we will talk about the government’s (limited) ability to mandate backdoors and to require decryption.
V. The Structure of Foreign Intelligence Surveillance Law
The law that applies to foreign intelligence activities runs parallel to the law that applies to police activities. We will compare the two systems of law and review key distinctions. The section places particular emphasis on Section 215 of the USA PATRIOT Act, Section 702 of the FISA Amendments Act, and Executive Order 12333.
VI. Controversial NSA Programs
In the final section, we will review the conduct and legality of controversial National Security Agency programs. We will discuss in detail the domestic phone metadata program, PRISM, and “upstream” Internet monitoring.
There is no required textbook for the course. All readings will be provided online.
Several tomes discuss electronic surveillance in detail. For further reading, you might consider Dragnet Nation and No Place to Hide. If you'd like a more lawyerly take, we highly recommend the (free and public) Department of Justice manual on electronic evidence. A number of casebooks also touch on government surveillance, including Computer Crime Law, Criminal Procedure: Investigation, Information Privacy Law, and Internet Law.
Much of the best legal writing on electronic surveillance is posted to blogs. You might also take a look at The Volokh Conspiracy, Lawfare, and Just Security.
Keep in mind that this area of law is evolving rapidly. If you encounter an explanation that seems outdated, it probably is. When this material was last offered at Stanford, for example, the law changed multiple times during the course.
The class will consist primarily of lectures, each about 5-10 minutes long. There will be occasional assigned quizzes; they are intended to make sure you understand the material and should not be too tricky. You will also be expected to participate in forum discussions.