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Surveillance Law
About the Course
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.
Course Syllabus
I. Introduction
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.
Suggested Readings
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, includingComputer Crime Law, Criminal Procedure: Investigation, Information Privacy Law, andInternet 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.
Course Format
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.
Instructors
- Why are you offering this course?
Understanding government surveillance requires a blend of arcane law and computer science; even senior policymakers routinely botch specifics. We want to provide a comprehensive, accurate, and accessible explanation of current practices. Our aim is to raise the level of discourse on government surveillance. - What background is expected for enrolling in this course?
None! Just be willing to learn some law. And a little computer science. - Is the course technically robust against surveillance?
It can be! If you’d prefer to follow along without creating an account, you can access the “preview” version of the course. For even greater protection, you can load the preview using the Tor anonymizing network. - Can I suggest material for the course?
Absolutely, feedback is very welcome. Please reach out to @jonathanmayer. - What areas of law does this course cover?
Most of the material draws on the Fourth Amendment to the United States Constitution, the Electronic Communications Privacy Act (ECPA), theCommunications Assistance for Law Enforcement Act (CALEA), and the Foreign Intelligence Surveillance Act (FISA). We will also briefly discuss the Federal Rules of Criminal Procedure and the Fifth Amendment. - Does the course advocate for or against government surveillance?
Neither. Course staff have worked with law enforcement agencies and civil liberties groups. Our aim is to present the law as it stands, with the best articulation of competing views. We expect there will be vibrant accompanying discussion. - Why is the best (i.e. the NSA) saved for last?
The course begins with police surveillance for several reasons. First, the surrounding law is much better developed—it’s much older, much more transparent, and much more frequently litigated. Second, foreign intelligence law builds upon the framework of police surveillance law; understanding the latter is essential to understanding the former. - Is Continuing Legal Education (CLE) credit available to attorneys?
We're working on it, stay tuned! - Will the course include discussion of current events?
Definitely. Surveillance practices frequently make headlines; we will share our thoughts throughout the course. - What if the law changes during the course?
We will post an update. There is a good chance that it will happen. - Can I repurpose the course materials?
Absolutely. The entire course is offered under a Creative Commons Attribution 4.0 International License. - Does the course remix work by others?
Yes. We have compiled a table of remixed content, with sources and licenses. - Can you help me with a legal problem?
Course staff are not acting as your lawyers and do not provide legal advice. If you need legal assistance, you should retain an attorney.
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