Archive | Mosaic Theory of the Fourth Amendment

Will the Supreme Court Review the NSA’s Telephony Metadata Program?

In the wake of the dueling opinions by Judges Leon and Pauley about the NSA’s Section 215 telephony metadata program, a lot of commentators are assuming that the issue is heading to the Supreme Court. If a federal circuit court rules that the program is unconstitutional and survives en banc review, then I agree that Supreme Court review is likely.  Invalidating a major federal program will usually get the Justices’ attention. But let’s assume that the Second Circuit upholds Judge Pauley’s decision, and the DC Circuit reverses Judge Leon. Will the Supreme Court intervene if the Second and DC Circuits uphold the program?

We don’t know, of course, as it all depends on what might get four votes to grant cert. It’s a discretionary call, so it’s hard to predict. At the same time, I think a lot of commentators overestimate the chances that the Supreme Court would step in. It’s certainly possible, but it’s not at all  a sure thing. Here are five reasons why the Supreme Court might not review the Section 215 cases:

1) Section 215 sunsets on June 1, 2015. On that date, the statutory authority for the bulk telephony program will end. If the White House wants to continue the program beyond that date, it will have to convince Congress to expressly approve bulk collection. Alternatively, Congress might not be willing to go along, and will only be willing to approve a modified program or no program at all. Either way, the sunsetting of Section 215 will trigger a major Congressional debate on the desirability of bulk collection that will either reject it or accept it in modified form.

A cert petition in the Section 215 cases from Judges Pauley and/or Leon would reach the Supreme Court as this debate was either ongoing or recently [...]

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Can the DC Circuit Use the Mosaic Theory to Invalidate the NSA Telephony Metadata Program?

Here’s a thought experiment. Let’s assume that when DOJ appeals Judge Leon’s opinion in Klayman v. Obama, the DC Circuit does not reverse on the procedural issues. Instead, on appeal the DC Circuit takes precedent seriously and tries to square the NSA surveillance program with United States v. Maynard and its mosaic theory on the merits of the Fourth Amendment. If that happens, how should the court rule? That is, how should the NSA program fare under the Maynard mosaic theory?

In some sense, there is no real answer to the question. Maynard‘s mosaic theory is novel, strange, and yet also strikingly vague. Still, I thought it would be useful to imagine what issues the DC Circuit might encounter if it tries to fairly apply the Maynard precedent on appeal. There are two key issues. First, does the mosaic theory apply to the kind of data collection at issue in the NSA program? And second, if the theory applies generally, how does it apply specifically to the facts of the Klayman case?

(1) Does the Mosaic Theory Apply to the Data at Issue in the NSA Program?

The mosaic theory developed by the DC Circuit in Maynard reasoned that long-term surveillance can allow the government to collect and analyze so much information about a person that eventually the government can develop a complete picture of their lives. When that happens, a Fourth Amendment “search” is deemed to have occurred. In Maynard, the government installed a GPS device on the car that the defendant drove and monitored it for 28 days. The GPS recorded the location of the car every few seconds. On those facts, the DC Circuit concluded that a search had occurred because the GPS surveillance “reveal[ed] an intimate picture of the subject’s life that [...]

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District Judges Divide on Long-Term Cell Phone Tracking Under the Fourth Amendment

I haven’t blogged recently on judicial decisions considering the mosaic theory of the Fourth Amendment. As regular readers will recall, the “mosaic theory” is a term for the idea that long-term monitoring of a suspect can be a Fourth Amendment search even if short-term monitoring is not. Under this approach, which was suggested by the concurring opinions in United States v. Jones, surveillance and analysis of a suspect is outside the Fourth Amendment until it reaches some point when it has gone on for too long, has created a full picture of a person’s life (the mosaic), and therefore becomes a search that must be justified under the Fourth Amendment. I think the mosaic approach is a misstep for reasons I elaborated on in this article. And the handful of lower courts to have considered the theory since Jones mostly have not adopted it, either because they found it unpersuasive, because they distinguished Jones on the facts, or because they avoided the question under the good-faith exception to the exclusionary rule. See, e.g., United States v. Graham, 846 F.Supp.2d 384 (D.Md. 2012).

In the last week, two district courts have divided on the question: United States v. Rigmaiden (D. Ariz. May 8, 2013), and United States v. Powell, — F.Supp.2d –, 2013 WL 1876761 (E.D. Mich May 3, 2013) In this post, I want to discuss the two rulings, and then offer some critical commentary on Powell at the end.

First, today in United States v. Rigmaiden (D. Ariz. May 8, 2013), Judge Campbell held that the third-party doctrine applies to both cell-site information collected over 38 days and websurfing destination IP address information that collected 1.8 million destination IP addresses. Judge Campbell held that the mosaic theory did not apply when the [...]

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Responding to the Massachusetts Supreme Judicial Court on Probable Cause and Standing to Challenge GPS Searches

The Massachusetts Supreme Judicial Court has asked for amici help in two pending cases about the Fourth Amendment and GPS surveillance:

In these cases involving co-defendants, the issue presented, among others, is whether an affidavit demonstrated sufficient probable cause in support of an application for a warrant secretly to attach a GPS device to a motor vehicle and to monitor tracking information; whether a passenger has standing to challenge the evidence seized as a result of such monitoring; whether a passenger in a vehicle to which a GPS device is attached is either “seized” or “searched” to the same extent as the driver or the vehicle itself.

On the first question, probable cause, I gather there is a preliminary issue of whether a warrant or probable cause is required to install the GPS device. There is litigation pending on that issue in the federal courts — it’s a difficult issue, in my view — although I don’t know if the issue is also being litigated in the Massachusetts case. Assuming that already has been answered in the affirmative or (unfortunately) has been conceded away, the question becomes what kind of probable cause is deemed sufficient. In the case of a Fourth Amendment search, the ordinary kind of probable cause is probable cause to believe that there is particularly described evidence to be seized inside the particularly described place to be searched. I don’t know how this is supposed to work with a GPS warrant, though. In the case of a GPS search, the government isn’t actually looking to search inside the car for evidence. The car is the place where the GPS is installed, and under Jones it is the “place” where the search occurs. But the information sought is outside of that place, not inside it: The government [...]

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Final Version of “The Mosaic Theory of the Fourth Amendment”

The Michigan Law Review has posted the final version of my latest article, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311 (2012), on its website. Here’s the abstract:

In the Supreme Court’s recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a “mosaic theory” of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.

This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that a mosaic theory would raise, and it analyzes the merits of the proposed new method of Fourth Amendment analysis. The Article makes three major points. First, the mosaic theory represents a dramatic departure from the basic building block of existing Fourth Amendment doctrine. Second, adopting the mosaic theory would require courts to answer a long list of novel and challenging questions. Third, courts should reject the theory and retain the traditional sequential approach to Fourth Amendment analysis. The mosaic approach reflects legitimate concerns, but implementing it would be exceedingly difficult in light of rapid technological change. Courts can better respond to the concerns animating the mosaic theory within the traditional parameters of the sequential approach to Fourth Amendment analysis.

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Updated Version of The Mosaic Theory of the Fourth Amendment

I recently posted a substantially re-written version of my forthcoming article, The Mosaic Theory of the Fourth Amendment. The new version is much tighter; it says more about the purpose of the theory; and it takes a stronger view on whether it should be adopted. Here’s the new abstract:

In the Supreme Court’s recent decision on GPS surveillance, United States v. Jones (2012), five Justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions have always evaluated each step of an investigation individually. Jones introduced what we might call a “mosaic theory” of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.

This article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that a mosaic theory would raise, and it analyzes the merits of the proposed new method of Fourth Amendment analysis. The article makes three major points. First, the mosaic theory represents a dramatic departure from the basic building block of existing Fourth Amendment doctrine. Second, adopting the mosaic theory would require courts to answer a long list of novel and challenging questions. Third, courts should reject the theory and retain the traditional sequential approach to Fourth Amendment analysis. The mosaic approach reflects legitimate concerns, but implementing it would be exceedingly difficult in light of rapid technological change. Courts can better respond to the concerns animating the mosaic theory within the traditional parameters of the sequential approach to Fourth Amendment analysis.

Thanks to the VC commentariat for their many suggestions in a previous thread on a better phrase to use to describe the traditional method of analysis. I ended up replacing [...]

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Who Has Standing to Challenge Mosaic Searches? The Interesting Case of United States v. Luna–Santillanes

In my forthcoming article, The Mosaic Theory of the Fourth Amendment, I discuss why the mosaic theory of the Fourth Amendment raises puzzling questions about standing:

Fourth Amendment rights are personal, and individuals can only invoke a remedy if their own rights were violated. The Fourth Amendment standing inquiry arises as an application of the reasonable expectation of privacy test; each person must established that his or her own reasonable expectation of privacy was violated to have standing to challenge the government’s act. But who has standing to challenge a mosaic search? The question is difficult because mosaic searches occur over time, and the overall mosaic therefore may monitor different people at different times in different degrees. To appreciate this, imagine that Alan has a GPS device installed in his car, and Bob then steals Alan’s car and begins to drive it around as his own. Bob drives the car for 30 days, and during that time he often gives rides to Charles, Dave, and Elizabeth. Charles gets a ride almost every day; Dave every other day; and Elizabeth only rides in the car twice. The police remotely turn on the GPS device when the car is reported stolen, and they monitor the car for 28 days.

We know from Jones that five Justices would say that the 28 days of GPS monitoring amounts to a search. But who has standing to challenge it? Does Bob have standing on the ground that his location was monitored for the full 28 days? Or does he lack standing because the stole the car, and therefore has no rights in it?203 If Bob has standing, what about Charles, Dave, and Elizabeth? Do all three have standing because their location was monitored as part of a broader mosaic search? Or must the standing

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Seeking Feedback: What’s A Better Name Than “The Discrete-Steps Approach”?

I’ve been working on an updated draft of my forthcoming article on the mosaic theory of the Fourth Amendment, and I could use help from readers on a relatively simple labeling question. In the article, I’m trying to contrast two understandings of the Fourth Amendment. The first understanding is the traditional view that courts must analyze whether government conduct is a Fourth Amendment search by focusing just on that one act at that one moment — that is, viewing each government act as a discrete step, and analyzing that discrete step as a search or a non-search. The second understanding is the new idea that courts should analyze whether government conduct is a Fourth Amendment search by aggregating over some range of different acts over different times, and considering whether the collective set of acts considered in the aggregate amounts to a search. When the first decision on the new approach came down, I decided to call the new approach “the mosaic theory,” as it is based on the notion that the aggregate of government conduct paints a mosaic of information about a suspect. I like that label, and plan to stick with it. My question is, what should I call the traditional approach? My current draft calls it “the discrete steps approach,” as it uses each discrete law enforcement act as the basic unit of analysis. But that label seems awkward, and I wonder if any readers have better ideas. I’d like a label that is relatively short, descriptive, and intuitive. I considered calling it “the atomistic approach,” but that label has been used in Fourth Amendment scholarship for a different idea, and using it here would be too confusing. I also thought of just calling it “the traditional approach,” but I’d like something more descriptive. Any [...]

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District Court Rules That Mosaic Search Triggers Good Faith Exception Even Absent Binding Precedent

In my forthcoming article, The Mosaic Theory of the Fourth Amendment, I explain that there are lots of ways in which courts might avoid applying the exclusionary rule if they conclude that the mosaic theory of the Fourth Amendment from the concurring opinions in United States v. Jones offers a viable theory of Fourth Amendment protection. The recent case of United States v. Leon, 2012 WL 1081962 (D.Hawaii, March 28, 2012) offers a creative example that stretches the rationale of the Supreme Court’s recent good-faith decision in Davis v. United States.

In 2009, investigators installed a GPS device on Leon’s car because they suspected he was trafficking in meth. The GPS device monitored the location of Leon’s car for more than three months. In this case, Leon has moved to suppress the fruits of the GPS monitoring of his car. He argues that the installation of the GPS device was a search under the majority opinion in United States v. Jones and that the long-term use of the GPS device was a search under the concurring opinions in that case. The district court first rules that under Davis, the good faith exception applies to the installation of the device because the officers had relied on prior 9th Circuit precedent holding that it was neither a search nor seizure to install a GPS device. So far, so good — that’s what Davis requires. But the district court then rules that the good-faith exception applies to the long-term use of the device — which the court seems to assume is a viable theory of Fourth Amendment protection — even though there was no prior precedent approving that:

Unlike the placement of a GPS tracking device on the exterior of a vehicle in an area where a defendant has

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New Draft Article, “The Mosaic Theory of the Fourth Amendment”

I have just posted a new draft article, The Mosaic Theory of the Fourth Amendment, which is forthcoming in the Michigan Law Review. Here’s the abstract:

In the Supreme Court’s recent decision on GPS monitoring, United States v. Jones (2012), five Justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions have always evaluated each step of an investigation individually. Jones introduced what we might call a “mosaic theory” of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.

This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and dilemmas that a mosaic theory would raise, and it analyzes the ways in which the mosaic theory departs from prior understandings of the Fourth Amendment. It makes three major points. First, the mosaic theory offers a dramatic departure from existing law. Second, implementing the theory requires courts to answer a long list of novel and challenging questions. Third, the benefits of the mosaic theory are likely to be modest, and its challenges are likely to be great. Courts should approach the mosaic theory with caution, and may be wise to reject it entirely.

I have a few weeks to work on the article before I submit a version to editors to begin the formal editing process, so comments are very welcome. (That’s especially true because this article was written in the brief window after Jones was handed down before the March submission season, so it is less set than most articles might be at this stage.) There is no need to catch typos or anything like that, as the editors will look for [...]

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Magistrate Judge Rejects Mosaic Theory of Fourth Amendment For Cell-Site Information

I have posted the short opinion (dated March 23) from Magistrate Judge Collings of the District of Massachusetts here. It largely adopts the reasoning of United States v. Graham from the District of Maryland, which I blogged about here. In my view, Judge Collings was correct to issue the order without probable cause for a second reason: The Fourth Amendment questions are not yet ripe for review, as I argue in this amicus brief I filed recently in the Fifth Circuit. [...]

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More Cases on the Mosaic Theory and The Implications of Jones

The various opinions in United States v. Jones (aka the GPS case) raise tons of fascinating new questions for Fourth Amendment law. I explore some of those issues in a forthcoming article, The Mosaic Theory of the Fourth Amendment, which will appear in the Michigan Law Review and which I hope to post an early draft of soon. In the meantime, here are three cases just from the last week or so on the implications of Jones.

1) United States v. Anderson-Bagshaw, 2012 WL 774964 (N.D.Ohio, March 8, 2012). This case considers whether Jones applies to video surveillance. The defendant was claiming disability benefits while running an alpaca farm. The government installed a camera on a telephone pole adjacent to the defendant’s property and recorded video of the property continuously for 24 days. The video was streamed over the Internet to a federal agent, who watched the video stream 3-5 hours a day and used some of it for evidence at trial. The use of the camera did not trespass on the suspect’s property. Held by District Judge Gwin: The mosaic theory does not apply, because the majority in Jones did not adopt the mosaic theory.

If the majority [in Jones] had adopted a mosaic theory condemning uninterrupted GPS surveillance, and further extended that theory to non-trespassory surveillance, then perhaps a substantial question of law might have been presented as to the constitutionality of the continuously streamed footage. Perhaps then the constitutionality of the 24–day surveillance would be a close question, or one that could go either way. But no such theory was adopted, and the pole camera footage remains soundly within the purview of caselaw reviewed in the Court’s denial of Bagshaw’s motion to suppress and motion to reconsider, under which authority this is not a

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Concurring Opinions in Jones Lead FBI To Turn Off 3,000 GPS Devices, Considered a “Sea Change” Within the Bureau

Earlier today, I sent off to law reviews a new draft article on the implications of the mosaic theory of the Fourth Amendment introduced in the GPS case, United States v. Jones — and specifically the majority opinion for the DC Circuit (under the name United States v. Maynard ) and the concurring opinions of Justice Alito and Sotomayor. A recent speech by the general counsel of the FBI suggests that I’m not the only one who thinks that the mosaic theory is a really big deal — and a lot more complicated than many realize:

A Supreme Court decision has caused a “sea change” in law enforcement, prompting the FBI to turn off nearly 3,000 Global Positioning System (GPS) devices used to track suspects, according to the agency’s general counsel.

When the decision-U.S. v. Jones-was released at the end of January, agents were ordered to stop using GPS devices immediately and told to await guidance on retrieving the devices, FBI general counsel Andrew Weissmann said in a recent talk at a University of San Francisco conference. Weissmann said the court’s ruling lacked clarity and the agency needs new guidance or it risks having cases overturned . . .

Weissmann said it wasn’t Scalia’s majority opinion that caused such turmoil in the bureau, but a concurring opinion written by Justice Samuel Alito. Alito, whose opinion was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, agreed with the Court’s conclusion in the case but wrote separately because his legal reasoning differed from the majority.
Alito focused not on the attachment of the device, but the fact that law enforcement monitored Jones for about a month. Alito said “the use of longer-term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” . . .

In his

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