Government surveillance is hot right now. People are talking about it; newspapers are writing about it, and citizens are gunning down drones flying over their beach towels. But for all the discourse, there’s not a ton of agreement about what's appropriate and what's stepping over the line. Not from the public, not from Capitol Hill and not even from the judges making rulings on a seemingly weekly basis. Sure, that’s partly due to its highly controversial nature, but there’s something else at play, too: the incredibly technical nature of the laws on the books—and the impact that may have on those charged with interpreting them.
Jonathan Mayer is not yet 30, but he’s become kind of a privacy rock star. Forbes named Mayer, a PhD candidate in computer science at Stanford and a lawyer, one of its “30 Under 30” this year, and, as The New York Times noted in took on the Obama and Romney campaigns for leaking data about visitors to their campaign sites, for example.
Having made a bit of a name for himself, Mayer’s embarking on a new accomplishment now. He’ll teach an online law course at Stanford on government surveillance, the first privacy course to be offered by online learning platform Coursera. Perhaps fittingly, in what you might call typical Mayer fashion,
The idea for the course stemmed from a realization that an actual textbook on government surveillance didn’t really exist—at least not one that was as up-to-date as would be necessary now that we've entered the Age of Snowden. If one did exist, he theorized, it’d surely be expensive and so inaccessible to the masses.
Mayer's course aims to give any student with a web browser and an Internet connection an understanding of U.S. surveillance law—namely when such laws can be invoked, what the limits are and what kind of privacy protections are built into them.
“There’s a regrettable tendency in the context of computer security, especially within the context of the NSA, to conflate much of the law in this area,” Mayer said. “And the law matters, and it does provide some substantial protections—though it could provide more protections.”
The course is meant to attract people interested in designing new technical solutions or participating in the public debate in a more impactful way. Or even those who simply want some continuing legal education credits while learning about a hot-button topic, Mayer said.
“It’s really very much an attempt at raising the level of sophistication of the discourse in a pretty controversial area,” he said.
While it may seem intuitive to offer a course on government surveillance at a time when it’s a catch-phrase and tensions are heightened, Edward Snowden isn’t the only reason the course is being offered now.
After doing some sniffing around, it struck Mayer how inherently technical the laws on the books are.
“A lot of it relates to the use of specific technologies for surveillance, and decisions about the statutory limits of those technologies have somewhat tended to be made in … maybe not a vacuum … but not with the best understanding of the technical details,” Mayer said.
It’s also been a particularly slow-moving area of law, he added: It wasn’t until 2010 that an appellate court even required a warrant for law enforcement to get access to a users’ email account. And even still, Congress hasn’t updated the law to make a warrant required to access email, despite a bill on the table that would do so.
“I think an understanding of the technical details would influence everyone’s views of the laws,” Mayer said. “I’m certainly hoping that practicing attorneys who take the course will take away some of the technical details. I think it can really matter in practice. I think having lawyers in contact with the experts is another important step; recognizing the limits of what we don’t know.”
Some of the problems now stem from a lack of agreement, or what Mayer calls an “astonishing degree of inconsistency,” from one judge to the next on matters as important as whether police can access the entire contents of an e-mail account or all the contents of all the phones near a particular cellphone tower, for example.
“Courts don’t even have agreement on whether they can order prospective cellphone tracking,” he said. “That seems like the sort of thing where that rule should be pretty clear across the United States.”
And this is just the tip of the iceberg.
While some magistrate judges are pretty good about publishing opinions that illustrate their reasoning on surveillance orders, much of the time, an order comes down from the bench that allows law enforcement to conduct a search and seizure without much explicit legal reasoning that could be useful for groups like the American Civil Liberties Union or the Electronic Frontier Foundation, for example, to analyze.
“There’s a very large design space in which we could reform surveillance law,” Mayer said. “Whether as a political matter that will happen is less clear. There certainly hasn’t been a great amount of political will thus far for comprehensive law enforcement reform.”
So far, Mayer’s got 400 or so students on his roster, and the course is still a month out. You can sign up yourself, right here. Sessions start October 14. He’s hoping a few of his students might help redline a few bills in that Federal Register or at least get people talking about it.