Syllabus Law : Surveillance Law Seminar. George Mason University Law School Fall 2015 Arlington Hall, Hazel Hall. Professor Jake Phillips

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1 Brief Course Description: Syllabus Law : Surveillance Law Seminar George Mason University Law School Fall 2015 Arlington Hall, Hazel Hall Professor Jake Phillips This seminar course will expose students to laws and policies relating to surveillance, with a primary focus on U.S. government surveillance. The course will review the legal regime governing traditional criminal wiretaps and surveillance conducted for national security purposes. The course will conclude with an overview of restrictions applicable to surveillance conducted by other countries and possession and use of personal data by private companies. Topics will include the applicability of the Fourth Amendment s search and seizure caselaw to government surveillance efforts; wiretaps in drug and organized crime cases; an overview of the U.S. government s pre-fisa surveillance programs; legislative efforts to constrain surveillance; the expansion of government surveillance following the attacks of 9/11; the implications of new surveillance technologies in an increasingly cyber- and technology-oriented world; and the impact of surveillance in all its forms on individual privacy. The class will necessarily focus on the now-declassified bulk metadata and foreign content collections conducted by the National Security Agency. Class Format: Seminar of students; two credits; one two-hour class per week. Active participation in class discussions is required. Students are expected to be fully prepared for each class session. Optional materials are marked below. Grading: Substantive grades will be based on class participation (15%), 2 short (3-5 page) reaction papers to weekly reading (25%) and one longer (15-20 page) paper on surveillance law (60%). Office Hours: By appointment. Faculty Contact Information: jakep1@gmail.com Phone: (during business hours only, please) 1

2 Course Materials: The bulk of the course materials are cases or articles available on Westlaw or Lexis-Nexis or materials posted on TWEN. Materials posted on TWEN are indicated below. The only book required for purchase is James Bamford s THE PUZZLE PALACE: INSIDE AMERICA S MOST SECRET INTELLIGENCE ORGANIZATION. Please purchase this book as soon as possible as it will be discussed in the first class. The syllabus and readings for later weeks may change, as additional materials are declassified; any changes will be announced in class, but students are asked to regularly check and TWEN for updates as well. Course Assignments: Week One Introduction to Government Surveillance 1. Excerpts from James Bamford, THE PUZZLE PALACE, Olmstead v. United States, 277 U.S. 438 (1928) 3. Katz v. United States, 389 U.S. 347 (1967) 4. Remarks by the President on Review of Signals Intelligence (Jan. 17, 2014) (TWEN) HBO Series, THE WIRE, Episode 6: The Wire Week Two Introduction to Criminal Wiretaps and Bugs 1. Goldman v. United States, 316 U.S. 129 (1942) 2. On Lee v. United States, 343 U.S. 747 (1952) 3. Silverman v. United States, 365 U.S. 505 (1961) Week Three Criminal Wiretaps and Bugs Under Title III: The Wire in Practice Part I 1. Berger v. New York, 388 U.S. 41 (1967) (only read thru 118) 2. Lee v. Florida, 392 U.S. 378 (1968) 3. Scott v. United States, 436 U.S. 128 (1978) Week Four Non-Content Surveillance Under Title III: Pen Registers and Tracking Devices 1. Smith v. Maryland, 442 U.S. 735 (1979) 2. United States v. Knotts, 460 U.S. 276 (1983) 3. United States v. Karo, 468 U.S. 705 (1984) 4. United States v. Jones, 132 S. Ct. 945, 565 U.S. (2012) 2

3 Week Five Introduction to Foreign Intelligence Surveillance 1. Executive Order No , United States Intelligence Activities 2. United States v. United States District Court (Keith), 407 U.S. 297 (1972) 3. United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc) (only read thru 608) 4. United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980) (only read thru 917) Week Six National Security Surveillance Pre-FISA: COINTELPRO and SHAMROCK 1. United States Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the Church Committee, Book III, National Security Agency Surveillance Affecting Americans ( 2. Excerpts from S. Rep , Foreign Intelligence Surveillance Act of 1977 (TWEN) 3. Excerpts from James Bamford, THE PUZZLE PALACE, Excerpts from James E. Baker, IN THE COMMON DEFENSE, (TWEN) Week Seven The Foreign Intelligence Surveillance Act of 1978 (FISA) 1. The Foreign Intelligence Surveillance Act of 1978, Pub. L , 92 Stat U.S.C. ch. 36 (TWEN) 2. Excerpts from James E. Baker, IN THE COMMON DEFENSE, (TWEN) 3. Excerpts from Dycus, et al., NATIONAL SECURITY LAW 4TH, (TWEN) Week Eight Foreign Intelligence Surveillance After FISA: Information Sharing, The Wall, and the FISA Court of Review 1. David Kris, The Rise and Fall of the FISA Wall, 17 Stan. L. and Policy Rev. 487 (2006). 2. Excerpts from Report of the National Commission on Terrorist Attacks Against the United States ( The 9/11 Commission Report ), pp (2004) (TWEN) 3. Excerpts from 9/11 Commission Staff Statement No. 9 (2004) (TWEN) 4. In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002) 5. United States v. Cavanaugh, 807 F.2d 787 (9th Cir. 1987) (Kennedy, J.) 6. United States v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 2000) Week Nine Surveillance in the Post-9/11 Era: The PATRIOT Act, NSLs, and Modern NSA Surveillance 1. Unclassified Report on the President s Surveillance Program, Report of the Inspectors General of DOD, DOJ, CIA, NSA, and ODNI, July 2009 (TWEN) 2. Declassified TOP SECRET/COMINT/NOFORN Letters and Report on NSA s Bulk Collection Programs for USA PATRIOT Act Reauthorization, July 2011 (TWEN) 3. Congressional Research Service, USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis, pp (Dec. 21, 2006) (TWEN) 4. Excerpts from U.S. Department of Justice, Office of the Inspector General, A Review of 3

4 the Federal Bureau if Investigation s Use of Exigent Letters and Other Informal Requests for Telephone Records (Jan. 2010) (TWEN) NOTE: PROPOSED PAPER TOPICS DUE THIS WEEK Week Ten Post 9/11 Surveillance: The Terrorist Surveillance Program 1. U.S. Department of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President (Jan. 19, 2006) ( DOJ White Paper ) (TWEN) 2. Office of the Director of National Intelligence, Remarks by General Michael Hayden at the National Press Club (Jan. 23, 2006) (TWEN) 3. Letter from Alberto Gonzalez to Senators Leahy and Specter, Re: Terrorist Surveillance Program (Jan. 17, 2007) 4. Excerpts from James E. Baker, IN THE COMMON DEFENSE, (TWEN) Memorandum for the Attorney General from Assistant Attorney General (OLC) Jack Goldsmith, Re: Review of the Legality of the STELLAR WIND Program (May 6, 2004) (TWEN) Testimony of James Comey, Senate Judiciary Committee (May 15, 2007) (TWEN) NOTE: FINAL PAPER TOPICS DUE THIS WEEK Week Eleven Post 9/11 Surveillance: FISA Modernization and the FISA Court of Review II 1. Testimony of Ken Wainstein, Assistant Attorney General, National Security Division, before the Senate Select Committee on Intelligence, May 1, (TWEN) 2. Excerpts from S. Rep , Senate Select Committee on Intelligence, Report on S. 2248, Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007 (Oct. 26, 2007) (TWEN) 3. Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, Pub. L (July 10, 2008) (focus on sections ) 4. In re: Directives [redacted] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004 (FISA Ct. Rev. 2008) (TWEN) Week Twelve Snowden Disclosures: PRISM and Metadata Collections 1. NSA Fact Sheets on the Telephony Metadata (Section 215) and PRISM (Section 702) Programs, June 2013 (TWEN). 2. ACLU v. Clapper, No cv (2d Cir. May 7, 2015) 3. Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (July 2, 2014) 4. House Committee on the Judiciary, Report on USA FREEDOM Act of 2015, pp. 2-10, 4

5 16-29 (May 8, 2015) 5. In re Application of the Federal Bureau of Investigation For an Order Requiring the Production of Tangible Things, No. BR (U.S. For. Intel. Surv. Ct. June 29, 2015) Steven G. Bradbury, Understanding the NSA Programs: Bulk Acquisition of Telephone Metadata Under Section 215 and Foreign-Targeted Collection Under Section 702, Lawfare Research Paper Series, Vol. 1, No. 3 (Sept. 1, 2013) David Kris, On the Bulk Collection of Tangible Things, Lawfare Research Paper Series, Vol. 1, No. 4 (Sept. 29, 2013) Laura K. Donohue, Section 702 and the Collection of International Telephone and Internet Content, 38 Harv. J. Law & Pub. Pol. 1 (2015) Week Thirteen Future of Government Surveillance and Privacy 1. President s Review Group On Intelligence and Communications Technologies, Liberty and Security in a Changing World, Chapters 1-6 (Dec. 12, 2013) (TWEN) 2. Phillip Heymann, An Essay on Domestic Surveillance, Lawfare Research Paper Series, Vol. 3, No. 2 (May 10, 2015) 3. Ashley Deeks, An International Legal Framework for Surveillance, 55 Va. J. Int l L. (2015) Week Fourteen Activities of Foreign Governments and Commercial Entities 1. European Court of Human Rights, Research Division, National Security and European case-law, pp (Nov 2013) 2. Intelligence and Security Committee of Parliament [of the United Kingdom], Privacy and Security: A modern and transparent legal framework, pp (12 March 2015) 3. Theodore Moran, Cyber surveillance regulations: Is the United States asking China to accept a double standard?, American Enterprise Institute White Paper (April 2015) 4. Google Terms of Service ( 5