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effectively accepting this criticism on the grounds that, at least in this realm of Fourth Amendment jurisprudence, a sum may be greater than the whole of its parts. More plausibly, mosaic theory’s support- ers might claim that there is a collective Fourth Amendment interest shared by a group as large as all citizens using telecom services, one that is infringed by a program as broad as the NSA’s. That collective inter- est is not based upon privacy, but is instead derived from the ideal of tranquility woven into the structure of the Constitution and implicit in Justice Brandeis’s expression of the Fourth Amendment’s primary goal— to protect citizens’ “right to be let alone.” Olmstead v. United States , 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). The concept of tranquility explains our intuitive discomfort with big data dragnets like the NSA’s telephony metadata program better than Katz -ian notions of privacy, espe- cially in light of our reduced expectations of privacy in today’s technological environment. While minor government harassment that disturbs a single citizen’s tranquility may be

trivial and fail to reach the level of a Fourth Amendment search, it is still a greater-than- zero intrusion upon our collective tranquility interest that, when accumulated in a program as broad as the NSA’s, may be sufficient to constitute a search and trigger the Fourth Amendment’s protections. For instance, if government investiga- tors rummaged through the trash of Citi- zen Doe, even on a daily basis, it may not necessarily conduct a Fourth Amendment search, because it has not invaded any reasonable expectation of privacy under existing Supreme Court case law. But if instead government officers collected and preserved each and every article of trash discarded by all citizens who availed them- selves of public trash disposal services, it might intrude sufficiently upon the joint Fourth Amendment interest of all citizens using those services to constitute a search. Is Supreme Court Adoption of the Mosaic Theory Imminent? Would the Supreme Court ever hold that a government information collection

program that becomes so broad that it captures data about practically everyone engaged in an activity that is ubiquitous in society infringes upon those citizens’ collective tranquility interest so as to constitute a search? It has shown some openness to mosaic theories in general. Perhaps the Court would be willing to take this further step to resolve the arithmetic tension inherent in them. Challengers to data dragnets like the NSA’s should pres- ent this argument, giving courts a sounder logical footing upon which to base rulings in favor of individual liberties. Michael Gentithes is an attorney with the Office of the State Appellate Defender, focus- ing on criminal appeals in the state of Illinois. He previously practiced civil appellate and trial litigation as an Assistant Corporation Counsel for the City of Chicago.

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