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 may provide 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 due at 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.

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

Overview, briefing, Katz test

September 04 Tue, 06 Thu

Please read the following chapters from Delaney and the cases before class. Olmstead will be discussed on September 4, but the brief is not due until September 6. 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 11 Tue

You should at least skim Chapter 1 – it is only six pages long! Like your reading of Delaney, this will give you some background information and introduce you to terminology that will come up repeatedly throughout the course.

Then read the following.

• Ch 2. Computer Misuse Crimes (don’t skip the intro paragraph, then read the following sections:)
• §2.A. Why Punish Computer Misuse?
• §2.C.1 Introduction to Unauthorized Access Statutes
• §2.C.2 What is Access?
• §2.C.3 What is Authorization? The Case of Code-Based Restrictions

Here and elsewhere, otherwise unidentified chapters/sections refer to Kerr 4e. You should read not just the text by Kerr, but any opinions or hypotheticals, as well as all of the end-of-section “Notes.” These notes are not optional, and in fact are where much of the interesting content in the text resides – I will expect you to have read them.

The assignments (exactly which opinions you must brief, as well as any other questions I may ask) are on Moodle.

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]
• White house declines to act on petitions to fire Aaron Swartz prosecutors by Grant Gross [2015-01-08]
• More about the Moulton case mentioned in Note 4 in §2.C.2

September 13 Thu

• §2.C.4 What is Authorization? The Case of Contract-Based Restrictions
• §2.C.5 What is Authorization? The Case of Norms-Based Restrictions

September 18 Tue

• §2.D. 18 USC §1030(a)(2) and its Felony Enhancements
• §2.E. 18 USC §1030(a)(4) and Computer Fraud Statutes

September 20 Thu

• §2.F. 18 USC §1030(a)(5) and Computer Damage Statutes
• §2.G. Hacking Back

4th amendment

September 25 Tue

• §5.A. The Requirement of Government Action
• §5.B.1. Defining Searches and Seizures: Searches
  • a) Introduction to 4A “Searches”
  • b) Searches of Stand-Alone Computers
  • c) Searches in the Network Context

September 27 Thu

• §5.B.1. Defining Searches and Seizures: Searches (continued)
  • c) Searches in the Network Context
• §5.B.2. Seizures

Midterm 1

October 02 Tue

The first midterm will be in class. More details and some sample questions are now available.

4th amendment, continued

October 04 Thu

• §5.C Exceptions to the Warrant Requirement
  • §5.C.1. Search Incident to Arrest
  • §5.C.2. Exigent Circumstances

October 11 Thu

• §5.C.3. Consent

October 16 Tue

• §5.C.4. Border Searches
• §5.C.5. Government Workplace Searches
• §5.D Searching and Seizing Computers with a Warrant
• §5.D.1. Probable Cause

Optional/Related:

• Am I Free To Go? an example of a genre of YouTube videos related to border checkpoints not at the border.
• The EFF’s latest complaint about warrantless border searches of laptops and other electronics
• Abidor v. Napolitano [2013-12-13] in which a challenge to suspicionless border searches was dismissed

A Brief Detour to TOR

October 18 Thu

• “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.
• An Overview of Tor
• Hidden Services.

See also:

• Top changes in Tor since the 2004 design paper (Part 1) (Part 2) ; part 2 described guard nodes

October 23 Tue

• §5.D.2 Particularity (be sure to read the notes, especially note 5)
• Government ‘hacking’ and the Playpen search warrant, by Orin Kerr, Washington Post (and followup)
• “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)
• Declaration by C. Tarbell in the Ulbricht/SilkRoad case

Optional/Related:

• Dice Problems may come in handy when computing probabilities (for the homework)
• “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
• US v. Ulbricht, the full text of Ulbricht’s unsuccessful appeal, which contains a long and pertinent discussion of, among other things, his appeal on 4A grounds
• “Visit the Wrong Website, and the FBI Could End Up in Your Computer”, by Kevin Poulson, Wired [2014-08-04]
• “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.

4th amendment, continued

October 25 Thu

• §5.D.3. The Physical Search Stage
• §5.D.4. The Electronic Search Stage

October 30 Tue

• §5.D.5. Ex Ante Restrictions on Computer Warrants

November 01 Thu

• §5.D.6. Encryption

Optional / Related:

• Kerr’s Amicus Brief on Burdens of Proof for Compelled Decryption

Midterm 2

November 06 Tue

(Also Election Day! Don’t forget to vote!)

The second midterm will be in class; it will focus primarily on material since the first exam, though there will necessarily be some cumulative material. You can expect questions covering primarily 4A law and Tor. It will be of the same style and about the same length as the first midterm.

Statutory privacy protections

November 08 Thu

• §6, §6.A Statutory Privacy Protections, and The Wiretap Act
• §6.A.1. The Wiretap Act: The Basic Structure. 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

Optional/Related:

• MA Wiretap Law overview by Dan Warner on Mass Live

November 13 Tue

• §6.A.3. The Provider Exception
• §6.B. The Cybersecurity Act of 2015
• §6.C. The Pen Register Statute

Optional/Related:

• CISA

November 15 Thu

• §6.D. The Stored Communications Act

• 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)

Cellular networks

November 27 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)
• “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:

• 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”. (Overturned by Carpenter)
• 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
• IMSI Catcher, by Daehyun Strobel [2007-07-13]
• With $20 of Gear from Amazon, Nearly Anyone Can Make This IMSI-Catcher in 30 Minutes
• 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)
• • “Federal agents will no longer use ‘Stingray’ cellphone trackers without warrants”, USA Today (Oct 21, 2015)
• EFF’s The Problem with Mobile Phones
• MA ahead of the curve: “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]
• “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 29 Thu

• United States v Jones
• Carpenter v United States
• The Mosaic Theory of the Fourth Amendment by Orin Kerr

Optional/Related:

• United States v Karo
• United States v Knotts
• 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

December 04 Tue

• §8.A. National Security and the Fourth Amendment
• §8.B. FISA
• 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
• 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)

Optional/Related:

• background from Wikipedia on Klayman; note the case was eventually dismissed for lack of standing
• 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.]
• 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

December 06 Thu

(still draft status from here down…)

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 material from last class.

Review and wrap-up

December 11 Thu

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.

Final Exam

Our exam is scheduled for:

12/20/2018
Thursday
10:30–12:30
LGRC A203

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.