Schedule

This page is a master list of all topics, lectures, and readings for the course. Some important notes:

• The schedule may change at my discretion.
• The assignments themselves (which cases to briefs, notes, and otherwise) are on Moodle.
• For your convenience, I have linked some opinions here that are also in the book. Generally, use the book’s version, as Kerr shortens the opinions to just the relevant parts. I have provided some shortened/excerpted opinions that are not in Kerr; these are marked as such in the list below.
• 591L-only material will be clearly marked as such.

Submitting assignments. You are expected to complete all assigned assignments and readings (including the numbered end-of-section notes) before each class meeting. You are responsible for submitting assignments by the course meeting in which they are discussed.

Assignments can be turned in only via Moodle and only in PDF format. Do not hand in a printout or email the course staff your submissions, as we won’t accept them or give you credit. Assignments are technically due at 9:00am, but as a grace period, Moodle will accept submissions until 1:00pm (the start of class). You can re-submit an assignment at any point until then. Assignments will not be accepted after this time. If you’re running close to the deadline, it’s a a good idea to submit some version of your assignment as you finish parts before 1:00pm, and then keep resubmitting to avoid any trouble with the server. Do not email the course staff after 9:00am with questions about the assignment or to notify us of trouble with Moodle, as we will not reply.

Grading. Each case you brief will be graded according to the briefing rubric. Each note you brief will be graded according to the note rubric. Other items will be graded as marked.

Course overview, Briefing, and the Katz test

September 6 Tue, 8 Thu

Please read the following chapters from Delaney and the cases before class. Olmstead will be discussed on September 6, but the brief is not due until September 8. After the first class meeting, you must read and brief cases before lecture — the first meeting is the only exception to this rule!

• Delaney, Learning Legal Reasoning.
  • Read pages 1–5 of Chapter 1, which is offered free on the author’s web site.
  • Read all of Chapter 2.
• Olmstead v. US, 277 U.S. 438 (1928)
• Katz v. US, 389 U.S. 347 (1967)

Optional/Related:

• Oyez has a case summary and the oral arguments for Katz; if you have about forty minutes, most of the arguments are fascinating. Highlights include a prescient discussion that will be revisited in Kyllo (around 11:30), and the attorney for Katz bringing up the idea of a new test for 4A applicability (starting around 21:00).

Chapter 2: Computer Misuse crimes

September 13 Tue

(Sections, like §2C, refer to sections from Kerr.)

• §2C Unauthorized Access Statutes
  • §2C1 Statutes (18 U.S.C. § 1030)
  • §2C2 What is “Access”? (State v. Riley and Notes 1, 3, 4, and 6)
  • Read intro to §2C3; but skip Morris; then read Note 2
  • §2C4 Breaking contract-based restricted access (but skip US v. Nosal until next class)
  • US v. Drew
  • §2C5 Breaking community norms-based restricted access (EF Cultural Travel BV v. Zefer Corp.)

Optional/Related:

• More about the Moulton case mentioned in Note 4

September 15 Thu

• If you have Kerr 3e, read the US v. Nosal version from §2C4. If you have Kerr 2e, read this excerpted version, which has been shortened. (Here’s the full opinion if you are interested.)
• US v. Swartz (no case to read, but the following are required readings)
  • Kerr’s opinion part 1 and part 2
  • Jennifer Granick’s response to Kerr: part 1 and part 2

Optional/Related:

• Happy 30th Birthday to the Computer Fraud and Abuse Act: Perhaps the Worst Law in Technology, panel discussion
• The law used to prosecute Aaron Swartz remains unchanged a year after his death by Andrea Peterson, WaPo [2014-01-11]
• Aaron’s Law Is Doomed Leaving US Hacking Law ‘Broken’ by Thomas Brewster Forbes [2014-08-06]
• Does the federal computer hacking law apply to a laptop not connected to the Internet? by Orin Kerr (blog post) [2014-08-25]
• White house declines to act on petitions to fire Aaron Swartz prosecutors by Grant Gross [2015-01-08]

Chapter 5: 4th Amendment

September 20 Tue

• §5A The Requirement of Government Action (US v. Jarrett)
• §5B Defining Searches and Seizures (US v. David, US v. Gorshkov)

September 22 Thu

• §5C Exceptions to the Warrant Requirement, continued
  • §5C1 Exigent Circumstances (US v. Trowbridge)
  • §5C2 Consent (US v. Al-Marri, US v Buckner, US v. Andrus)

September 27 Tue

• §5C Exceptions to the Warrant Requirement, continued
  • §5C3 Search Incident to Arrest (US v Murphy 2009). Murphy is overturned by Riley, and so you don’t have to brief it.
  • Riley v. California is not in the text. Here is a shortened version of the opinion that you can use to brief it.
  • §5C4 Border Searches (US v Arnold)

Optional/Related:

• Meisler v Nevada
• Waiting for the dogs during police traffic stops by Orin Kerr (blog post) [2014-02-01] See also Crist discussed on page 317 in Kerr’s text.
• Abidor v. Napolitano [2013-12-13] upholding suspicionless laptop searches

September 29 Thu

• §5D Searching and Seizing a Computer With a Warrant
  • §5D1 Probable Cause (US v Adjani)
  • §5D3 Electronic Search Stage (US v Williams 2010)
  • §5D5 Encryption (In re Boucher 2007, Brenner’s blog)

Optional/Related:

• §5D2 The Physical Search Stage (US v Hill 2006)
• Judge Rebukes Justice Dept. for Requesting Overly Broad Email Searches by Matt Apuzzo NYT [2014-03-14]
• Judge Rules That Microsoft Must Turn Over Data Stored in Ireland by Nick Wingfield, NYT [2014-07-31]
• US v Kirschner, 2010, where it was held requiring a password to be divulged violates the 5A
• US v Fricosu, 2012, where it was held a password could be compelled under the All Writs Act; Fricosu claimed she could not remember password, but ex-husband later provided the password

October 4 Tue

• §5E The Fourth Amendment and Computer Networks
  • Analogies to Speech, Letters, and Telephone Calls
    • 4th Amend. protection for non-content Information (9th Circuit US v Forrester 2007)
    • No need to read Forrester’s more recent Supreme Court decision, but here it is: No. 09-50029 2009
  • 4th Amend. protection for content information (shortened version of Ontario v Quon)

Tor and “NIT” Warrants, Privacy

October 6 Thu

IN CLASS QUIZ! This should help you prepare for the midterm on October 18. Like the midterm, the quiz will be open notes but not open text. Read more details on the quiz.

Before the quiz, we’ll do a brief overview of Tor, and we’ll continue with Tor next week.

• “Tor: The Second-Generation Onion Router” by Roger Dingledine, Nick Mathewson, and Paul Syverson. In the Proceedings of the 13th USENIX Security Symposium, August 2004.
• Hidden Services.

October 11 Tue

No class, Monday schedule.

October 13 Thu

We will continue our explanation of Tor.

• Government ‘hacking’ and the Playpen search warrant, by Orin Kerr, Washington Post (and followup)
• “Visit the Wrong Website, and the FBI Could End Up in Your Computer”, by Kevin Poulson, Wired [2014-08-04]
• “U.S. directs agents to cover up program used to investigate Americans” by by John Shiffman and Kristina Cooke, Reuters, [2013-08-05] (parallel construction used by DEA)
• “NIT” warrant to release malware (excerpt) for Tor-based servers
• Example of data seized by the NIT malware
• Description of code used for “Freedom Hosting”/Marques case malware; and the actual code
• Declaration by C. Tarbell in the Ulbricht/SilkRoad case
• The opinion on whether to suppress evidence in the Ulbricht/Silk Road case.

Optional/Related:

• “FBI demands new powers to hack into computers and carry out surveillance” by Ed Pilkington, Guardian newspaper Oct 29, 2014
• “The FBI says to be wary of hackers … and to let the FBI hack what it wants” by Trevor Trim (opinion piece) Guardian newspaper Oct 29 2014
• “NSA reportedly tracking any internet users who research privacy software online” by James Vincent, The Independent [2014-07-04]
• Tech Dirt blog/opinion post regarding Tarbell/SilkRoad
• “FBI Admits It Controlled Tor Servers Behind Mass Malware Attack” by Kevin Poulsen, Wired [2013-09-13]
• “FBI’s search for ‘Mo,’ suspect in bomb threats, highlights use of malware for surveillance” by By Craig Timberg and Ellen Nakashima, Washington Post [2013-12-06]; the warrant
• A 2013 magistrate’s rejection for a warrant to deploy malware that included camera capture.
• College student emails a bomb threat during finals; was one of only a few students using Tor that day and easily found by police.

Midterm

October 18 Tue

There will be an in-class midterm exam on this date. Any material (Delaney, Kerr, other assigned readings, class discussion, notes) covered before the date of the exam may appear on the exam.

This exam is closed-book, but you are permitted to use your notes and graded briefs as reference during the exam. You may not include wholesale excerpts from the text in these briefs and notes. Expect us to audit the notes you are using during the exam. This should take less than five minutes per student. No collaboration between students is permitted. Violating these rules or any portion of the University’s Academic Honesty Policy will be considered academic dishonesty, and we will pursue the maximum possible sanction.

Tor, etc., continued

October 20 Thu

We will finish our overview of Tor, and discuss some of the readings from last week. Please also read:

• “Relationship between Free Speech and Privacy” by Tracy Mitrano.
• Behind the European Privacy Ruling That’s Confounding Silicon Valley by Richard Levine, NYT [2015-10-11]

Chapter 6: Statutory Privacy Protections

October 25 Tue

• §6, §6.A, §6.A.1. The Wiretap Act: The Basic Structure, O’Brien v. O’Brien. As usual, and especially here, don’t skip the notes in Kerr; they are particularly important in this chapter.

October 27 Thu

• §6.A.2. The Consent Exception (Griggs-Ryan v. Smith)
• §6.A.3. The Provider Exception (United States v. Auler); related: CISA

Optional/Related:

• MA Wiretap Law overview by Dan Warner on Mass Live

November 1 Tue

• §6.A.4. The Computer Trespasser Exception
• §6.C.2. Compelled Disclosure Under §2703 (United States v. Kennedy)

November 3 Thu

• §6.B. The Pen Register Statue (In Re Application of the United States of America)
• §6.C.1. The Stored Communications Act: The Basic Structure; also read:
  • Should the Third-Party Records Doctrine Be Revisited? by Orin Kerr and Greg Nojeim (2012-08-01)
  • The Case for the Third-Party Doctrine by Orin Kerr (Michigan Law Review, Vol. 107, 2009)

November 8 Tue: Election Day

Remember to vote!

• §6.C.3. Voluntary Disclosure Under §2702 (Andersen Consulting LLP v. UOP, Jayne vs. Sprint PCS)
• §6.D. Problems
• “In The Matter Of The Search Of Information Associated With [Redacted]@Mac.Com That Is Stored At Premises Controlled By Apple, Inc.“

Optional/Related:

• Kerr’s posts about the @mac.com warrant above:
  • A remarkable new opinion on search warrants for online accounts — and why I think it’s wrong by Orin Kerr (blog post) [2014-03-27]
  • Reversal in e-mail warrant case follow up from Kerr [2014-08-10]

Cellular Networks

November 10 Thu

• How cellular networks operate
• How Law Enforcement Tracks Cellular Phones by Matt Blaze (blog post)
• A Lot More than a Pen Register, and Less than a Wiretap by Stephanie Pell, Christopher Soghoian (16 Yale J.L. & Tech. 134)

Optional/Related:

• In re Cell Tower Records Under 18 U.S.C. § 2703(d) “I concur that the SCA authorizes law enforcement access to cell tower logs and associated account information”.
• More info on Rigmaiden: “How an obsessive recluse blew the lid off the secret technology authorities use to spy on people’s cell phones”, Business Insider 2015

November 15 Tue

• “Federal agents will no longer use ‘Stingray’ cellphone trackers without warrants”, USA Today (Oct 21, 2015)
• EFF’s The Problem with Mobile Phones
• “Your Secret Stingray’s No Secret Anymore: The Vanishing Government Monopoly Over Cell Phone Surveillance and Its Impact on National Security and Consumer Privacy” by Stephanie Pell, Christopher Soghoian (May 15, 2014). Harvard Journal of Law and Technology

Optional/Related:

• IMSI Catcher, by Daehyun Strobel [2007-07-13]
• Electronic Surveillance Manual
• Verint product brochure
• Ciphering Indicator approaches and user awareness by Androulidakis, Pylarinos, and Kandus (Maejo Int. J. Sci. Technol. 2012, 6(03), 514-527)
• Riley v. California is of no help to the defendants because sprint’s records of cell tower usage are not created by the user or stored on his cell phone (supplemental from DOJ for US v Graham)
• Graham’s reply
• Rep. Alan Grayson’s Letter to FCC (and response) [2014-07-02]
• “State high court says warrants are needed for law enforcement to obtain cellphone location data” By Martin Finucane and Hiawatha Bray, Boston Globe [2014-02-18]
• “For sale: Systems that can secretly track where cellphone users go around the globe” by Craig Timberg Washington Post[2014-08-24]
• “Agencies collected data on Americans’ cellphone use in thousands of ‘tower dumps’” by Ellen Nakashima WashPo [December 9, 2013]

Chapter 8: FISA / National-Security-Related Activities

November 17 Thu

• §8.A. and the Fourth Amendment including (US v US District Court)
• EFF’s information on Section 702 of the Patriot Act
• EFF’s information on Section 215 of the Patriot Act
• EFF’s information on Executive Order 1233

Optional/Related:

• The Legality of the National Security Agency’s Bulk Data Surveillance Programs by John Yoo (Harvard Journal of Law and Public Policy) [This is an opinion and not a ruling!]

November 29 Tue

• Warrant Canary
• The oral arguments of the Klayman v. Obama case [audio]; focus on:
  • 0m:00s–18m:22s (Main argument of the Gov’t)
  • 40m:33s–59m:35s (Main argument of the EFF)
• background from Wikipedia

Optional/Related:

• Klayman v Obama decision (Dec 13, 2013)
• Appeal decision on standing (August 28, 2015)
• ACLU v. Clapper – Challenge to NSA Mass Call-Tracking Program
• What’s the “first amendment activities” rule about in FISA? See Granick’s blog post from August 2014.
• Amicus Curiae from AT&T Mobile (in support of neither party) re: US v Davis
• Memorandum opinion from FISA court on NSA Pen Register/Trap and Trace
• U.S. confirms warrantless searches of Americans (AP) [2014-04-02]
• Der Spiegel: NSA Put Merkel on List of 122 Targeted Leaders by Ryan Gallagher (First Look) 2014-03-29
• Spy Copters, Lasers, and Break-In Teams: How the FBI keeps watch on foreign diplomats by Matthew Aid, Foreign Policy [2013-11-19].
• Transparency Reports: Virtru

GPS and Remote Monitoring

December 1 Thu

IN CLASS QUIZ! This should help you prepare for the final. Read more details on the quiz.

• US v Knotts
• US v Jones

December 6 Tue

We will do catchup on FISA and related in-class topics today. If time permits, also read:

• Edward Snowden: Leaks that exposed US spy programme (BBC News; Jan 2014)
• Decoded: the main stories from the Snowden files explained (The Guardian; Dec 2013)
• Documents released by Glenn Greenwald (from Snowden)

Optional/Related:

• Teaching Criminal Procedure in a changing world by Miriam Baer (blog post) [Dec 28, 2013]
• Judge Leon Tosses Aside an Old Government Standby by Joe Palazzolo (blog post) [Dec 16, 2013]

December 8 Thu

• The Mosaic Theory on the Fourth Amendment by Orin Kerr
• Making The Most of United States V. Jones in a Surveillance Society: A Statutory Implementation of Mosaic Theory by Christopher Slobogin (Duke Journal of Constitutional Law & Public Policy Special Issue; Volume 8, Special Issue (2012))

December 13 Tue

Course wrap-up and review for final (primarily topics since midterm, but final is cumulative)

Final Exam

Our exam is scheduled for:

12/21/2016
Wednesday
10:30–12:30
Engineering Laboratory room 304

Please note (from the Academic Rules and Regulations):

…it is University policy not to require students to take more than two final examinations in one day of the final examination period. If any student is scheduled to take three examinations on the same day, the faculty member running the chronologically middle examination is required to offer a make-up examination if the student notifies the instructor of the conflict at least two weeks prior to the time the examination is scheduled. The student must provide proof of the conflict. This may be obtained from the Registrar’s Office, 213 Whitmore.