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
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.