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 to respond to, and so on) 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.
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.
Overview, briefing, Katz test
September 05 Tue, 07 Thu
Please read the following chapters from Delaney and the cases before class. Olmstead will be discussed on September 5, but the brief is not due until September 7. 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)
- Smith v. Maryland, 442 U.S. 735 (1979)
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).
Computer misuse crimes
September 12 Tue
(Sections, like §2C, refer to sections from Kerr. You should generally read the entire section, including the any opinions and end-of-chapter Notes, though you need only brief the cases as listed in the Moodle assignments.)
- §2C Unauthorized Access Statutes
- §2C1 Statutes (18 U.S.C. § 1030)
- §2C2 What is “Access”? (State v. Riley)
- §2C3 (you needn’t read US v. Morris, but feel free to do so to get the legal perspective on a legendary bit of malware – one of the first Internet worms)
- §2C4 Breaking contract-based restricted access (just the two introductory paragraphs; we’ll do Nosal next class)
- US v. Drew
- §2C5 Breaking community norms-based restricted access
Optional/Related:
- More about the Moulton case mentioned in Note 4
September 14 Thu
- 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)
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]
4th amendment
September 19 Tue
- §5A The Requirement of Government Action (US v. Jarrett)
- §5B Defining Searches and Seizures (US v. David, US. v. Jefferson)
September 21 Thu
- §5C Exceptions to the Warrant Requirement
- §5C1 Exigent Circumstances (US v. Trowbridge)
- §5C2 Consent (US v. Al-Marri, US v Buckner, US v. Andrus)
September 26 Tue
- §5C Exceptions to the Warrant Requirement, continued
- §5C3 Search Incident to Arrest (You needn’t read Schlossberg v. Solesbee, as Riley v. California is better case law for our purposes)
- Riley v. California is not in the text. Here is a shortened version of the opinion that you can use to brief it; if you have the 2017 supplement it is there as well.
- §5C4 Border Searches (Arnold is further clarified by US v. Cotterman, so you don’t have to brief Arnold (but you should probably still read it))
- US v Cotterman 709 F.3d 952 (an excerpted version is in the 2017 supplement).
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] in which a challenge to suspicionless border searches was dismissed
- The EFF’s latest complaint about warrantless border searches of laptops and other electronics
September 28 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 Subpoena Duces Tecum, 11th Circuit, 670 F.3d 1335)
Optional/Related:
- §5D2 The Physical Search Stage (US v Hill 2006)
- US v. Apple Macpro Computer, in which the foregone conclusion doctrine is applied and a defendant (a former police officer!) is being held in contempt apparently indefinitely
-
Kerr’s three posts on the Apple iPhone compelled decryption case (the San Bernadino terrorism case) involving the All Writs Act:
The case was dropped after the government contracted a private (third party) to decrypt the phone. But it’s likely to come up again soon.
October 03 Tue
- §5E The Fourth Amendment and Computer Networks
- Analogies to Speech, Letters, and Telephone Calls
- 4th Amend. protection for non-content Information (US v Forrester, 9th Circuit 2007)
- 4th Amend. protection for content information (US v. Warshak, 6th Circuit 2010)
Optional/Related: - No need to read Forrester’s more recent Supreme Court decision, but here it is: No. 09-50029 2009
Quiz in class today! The last 30 minutes of class will be set aside for a short written quiz. You may use your notes from class and your homeworks (briefs / responses), but not the textbook.
Sample quiz questions are available to peruse.
October 04 Wed (special announcement)
(This is a special announcement. We have class as usual on Tuesday and Thursday of this week.)
Becky Richards, the NSA Civil Liberties and Privacy Director, will be speaking this Wednesday from 5:30–6:30pm at the Old Chapel. Please consider attending!
- More details on her talk: “Dual Imperatives of Protecting Privacy & National Security”
TOR, NITs
October 05 Thu
Becky Richards will be sitting in on class today.
(and, it turns out, we’ll spend the entire class talking with her)
- “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.
See also:
October 12 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:
- Dice Problems may come in handy when computing probabilities (for the homework)
- US v. Ulbricht, Ulbricht’s unsuccessful appeal, which contains a long and pertinent discussion of, among other things, his appeal on 4A grounds
- “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.
October 17 Tue
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]
Midterm
October 19 Thu
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.
Statutory privacy protections
October 24 Tue
- §6, §6.A Statutory Privacy Protections, and The Wiretap Act
- §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.
- §6.A.2. The Consent Exception (Griggs-Ryan v. Smith)
Optional/Related:
- MA Wiretap Law overview by Dan Warner on Mass Live
October 26 Thu
- §6.A.3. The Provider Exception (United States v. Auler, McClelland v. McGrath)
Optional/Related:
October 31 Tue
- §6.A.4. Monitoring for a Cybersecurity Purpose (NOTE: This is in the 2017 supplement! If you don’t have it, read instead “How does the Cybersecurity Act of 2015 change the Internet surveillance laws?”.)
- §6.B. The Pen Register Statute (In Re Application)
- §6.C., 6.C.1. The Stored Communications Act, Basic Structure
Optional/Related:
- 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 02 Thu
- §6.C.2. Compelled Disclosure Under §2703 (US v. Weaver, “In The Matter Of The Search Of Information Associated With [Redacted]@Mac.Com That Is Stored At Premises Controlled By Apple, Inc.”)
Cellular network
November 07 Tue
- 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)
- 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”.
Optional/Related:
- 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 09 Thu
- “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]
GPS, remote monitoring, Mosaic theory
November 14 Tue
Optional/Related:
November 16 Thu
- The Mosaic Theory of the Fourth Amendment by Orin Kerr
- United States v. Carpenter (this is the Sixth Circuit opinion; this case is currently on appeal to the Supreme Court, with oral arguments scheduled for November 29th: http://www.scotusblog.com/case-files/cases/carpenter-v-united-states-2/)
Optional/Related:
- Kerr’s Amicus Brief for US v. Carpenter
- EFF’s Amicus Brief for US v. Carpenter
- 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))
FISA and national security
November 28 Tue
- §8.A. and the Fourth Amendment including (US v US District Court)
- EFF’s primer on Executive Order 12333
- EFF’s information on Section 702 of the Foreign Intelligence Surveillance Act (read all sections linked on left); and CDT’s information on Section 702 (see also their nice PDF summary)
- EFF’s information on Section 215 of the Patriot Act; this is historical, as 215 has expired and been replaced by the USA Freedom Act.
- USA Freedom Act Turns 2
Optional/Related:
- Lawfare podcasts on Section 702: a podcast with Matt Olson, former Director of National Counterterrorism; another with FBI General Counsel Jim Baker and the Bureau’s Executive Assistant Director of the National Security Branch Carl Ghattas
- ACLU v. Clapper, where the Second Circuit found that the scope of the bulk metadata collection program violated what was authorized in Section 215.
- 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 of a somewhat infamous member of the second Bush administration, and not a ruling.]
November 30 Thu
- 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:
- Warrant Canary
- Klayman v Obama decision (Dec 13, 2013), and the Appeal decision on standing (August 28, 2015)
- 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
Review and wrap-up
December 05 Tue
We’ll cover the U.S. v. Carpenter oral arguments (hot off the presses from last Wednesday: [audio and transcript at Oyez], [PDF of transcript]) in lecture today.
Quiz in class today! The last half of class will be set aside for a short written quiz. You may use your notes from class and your homeworks (briefs / responses), but not the textbook.
Sample quiz questions are available to peruse.
December 07 Thu
We’ll review the Snowden leaks in class, covering the surveillance programs that revealed by these leaks. This material will be a review and roundup of much of the FISA / National Security material from last week and also touch on things our visitor described earlier in the semester.
December 12 Tue
We’ll review the entire course, have a brief-wrap up discussion, and go over possible final exam questions. I’ll also harangue you to fill out the end-of-semester SRTIs, which are once again online this semester.
Final Exam
Our exam is scheduled for:
12/14/2017
Thursday
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.