This two-hour class is essential for any student intending to practice criminal law. In the 21st century, the vast majority of requests for criminal investigative warrants or subpoenas seek to obtain digital data. The law governing these requests stems from the Fourth Amendment, written before digital data was even imaginable. As a result, caselaw examining how the Fourth Amendment applies to digital data is in its infancy. Indeed, at the end of its last term, the Supreme Court decided United States v. Chatrie, which, depending on how you count, is only its second or third case applying the Fourth Amendment to digital data. This class will provide students with an understanding of the constitutional, legal, and technological issues that judges and practitioners face when submitting, reviewing and challenging these search and surveillance requests. The seminar will include lectures and class discussion with the professor, guest lectures by legal and technical experts (such as FBI forensic specialists, in-house counsel at the large tech firms that hold the sought-after data, and attorney representatives from main Justice and the Electronic Frontier Foundation), as well as visits by sitting federal judges discussing how they handle warrants raising these issues. The course will explore how courts have applied the Fourth Amendment to a wide range of investigative techniques, including cell site location information, cell tower “dumps”, automated license plate readers, cell site simulators, pole cameras, real-time cell phone tracking, geofences, drone deployment, search engine keyword searches, facial recognition technology, and law enforcement purchases of aggregated data. Assessment Method. Student assessment will have two components: (1) class participation throughout the course and (2) a final exam.
Austin, Andrew W.