CBA Record

Y O U N G L A W Y E R S J O U R N A L

In Defense of the Mosaic Theory Civil libertarians should expect opposition to the mosaic theory, however. There are obvious practical concerns with any such ill-defined statement of constitutional law. Although the courts are experienced at drawing new and somewhat arbitrary constitutional lines, they may hesitate to adopt the mosaic theory because of the many questions it raises about the quantum of data the government can collect without a warrant. Critics might also point out a glaring logical inconsistency in the mosaic theory. It seems impossible that some quantity of non-searches can somehow equal a search. One might respond that the theory is not reducible to a mathematical equation,

judge that has subsequently reviewed it in litigation, is based upon Supreme Court precedent that has narrowed the definition of a constitutional “search.” Following the Court’s decision in Katz v. United States , 389 U.S. 347, 360 (1967) (Harlan, J., con- curring), a “search” has been understood to mean an activity that intrudes upon a citizen’s “constitutionally protected reason- able expectation of privacy.” In the late 1970’s the Court significantly narrowed the scope of that definition, and by extension the Fourth Amendment’s protection, when it developed the third- party doctrine. Under the third-party doctrine, a citizen relinquishes any such privacy expectation in information that she discloses to a third party, be it a personal confidant or a business entity, even if he or she assumed that the information would be held confidentially. Thus, the govern- ment can collect information a citizen has disclosed voluntarily to a third party, including the numbers dialed, without conducting a constitutional search that might require prior judicial review. Smith v. Maryland , 442 U.S. 735 (1979). Thus far, federal courts have been split as to whether the rule announced in Smith applies to the NSA’s program. While Judge William H. Pauley III endorsed the government’s logic, holding that the case was controlled entirely by Smith ’s “clear precedent” which he was honor-bound to follow, Judge Richard J. Leon contended that Smith failed to address the precise factual scenario presented by the NSA’s program, which concerns “evolutions in the Government’s surveillance capabilities” unimaginable to the Smith court. Compare ACLU v. Clapper , No. 13-Civ-3994, at *43-44 (S.D.N.Y. Dec. 27, 2013), with Klayman v. Obama, No. 13-0851, at *45 (D. D.C. Dec. 16, 2013). An Open Question It is thus an open question whether govern- ment uses of big data to collect informa- tion about private citizens will constitute a search. It does seem clear, though, that those arguing that it does should find a way to avert the direct application of Smith and its progeny. They should avoid suggest-

ing the direct overrule of the third-party doctrine, which might evoke nonplussed responses similar to Judge Pauley’s. Instead, those arguing in favor of the Constitution’s application to such govern- ment programs should focus on arguments that distinguish present uses of big data from the much simpler technology at issue in Smith and its progeny, which could only collect a limited amount of data about a single tele- phone user for a short period of time. In order to distinguish Smith , attor- neys might make an argument pre- mised upon the “mosaic theory” of the Fourth Amendment proposed by some scholars. That theory would distinguish non-searches, like the single phone tap in Smith , from broad data mining like the NSA’s program by suggesting that, at some level, constant and ubiqui- tous monitoring paints such a detailed “mosaic” of a citizen’s life that it triggers the Fourth Amendment’s requirements. While, under Smith , the NSA does not conduct a search when it obtains each piece of telephony metadata, mosaic theorists argue that the aggregated data concern- ing the phone numbers a user dials over a five-year period creates an incredibly clear picture of that user’s life, one that the user does expect will remain private and be shielded from peering government eyes. A majority of Supreme Court Justices offered some support for this position in United States v. Jones , 132 S. Ct. 945, 963-64 (2012). In that case, which con- cerned the warrantless, month-long use of a GPS device on a suspect’s car, the Court resolved the question by holding that the police searched the defendant, because physically installing the GPS device con- stituted a trespass on the defendant’s effects (his car). However, there appeared to be strong support among the Justices for the idea that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy” and constitutes a search. At some unknown point, the Court seemed to acknowledge, constant and ubiquitous monitoring infringes upon privacy in a way that individual instances of the same monitoring do not.

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