Mosaic theory of the Fourth Amendment
"[1] Although the doctrine was first used in cases about national security, five justices of the US Supreme Court authored concurring opinions supporting a new Fourth Amendment framework for judging whether or not an individual has been subjected to an unlawful search, in United States v. Jones.
It requires that police action is considered "over time as a collective 'mosaic' of surveillance,"[1] and allows that cumulative mosaic to qualify as a protected Fourth Amendment search, even if the individual steps that contribute to the full picture do not reach that constitutional threshold in isolation.
Proponents, on the other hand, argue that mosaic theory is a much-needed development in light of new technologies that allow law enforcement officers to collect large volumes of personal data with little effort.
[10]: 643 With that ruling, mosaic theory became an established, precedented legal doctrine that gave intelligence agencies like the CIA "carte blanche" to deny FOIA requests.
In one case where the mosaic theory was used against intelligence agents, US officials called for recently returned Canadian Abdullah Khadr's extradition to the US to face charges related to terrorism in December 2005.
[2][4] This version of the theory asserts that the comprehensive collection of discrete data over time, if analyzed in the aggregate, exposes information about the lives, habits, and relationships of those surveilled that would have previously been impossible to gather and evaluate.
[2][15][16][17] As the US Supreme Court later articulated in Carpenter v. United States, the judiciary is "obligated, as subtler and more far-reaching means of invading privacy have become available to the government, to ensure that the progress of science does not erode Fourth Amendment protections.
Circuit court was the first to apply mosaic theory to a Fourth Amendment issue in United States v. Maynard, a case involving GPS surveillance of a car over a period of twenty-eight days.
[29] Justice Sotomayor offered a different formulation of mosaic theory, one in which courts should instead consider the quantity and quality of the data obtained through surveillance when determining whether it constitutes a search.
[30] The majority cited Justice Sotomayor’s concurrence in Jones to support the idea that the information carried on a device like a cell phone is both quantitatively and qualitatively different from that which can be obtained through other searches.
[35] Unlike other information obtained from third parties, in Carpenter v. United States, the CSLI was protected by the Fourth Amendment because it could be used to create a "detailed chronicle of a person’s physical presence" that "implicate[d] privacy concerns far beyond those considered" by the Court in other third-party cases.
"[10]: 679 Monica Eppinger noted, in intelligence gathering, mosaic theory arguments could allow an individual to be held and interrogated indefinitely, even if they were not a suspect: With this "mosaic theory" of intelligence, where the goal of those conducting the inquiry and investigation is to amass enough small bits of information to piece together a broader picture of the threats ahead or the perpetrators behind, a detainee might not even be aware that he or she knows something useful, or know what to divulge were he or she inclined to facilitate the process.
[49][50] One criticism of mosaic theory is that it creates a significant "line drawing" problem: it is difficult to determine just how much data needs to be gathered before actions by law enforcement officers become a search.
[51] Another criticism is that mosaic theory is inconsistent with other Fourth Amendment doctrines under which data gathered through public observation or by receipt from third-parties is not the product of a search.
"[54] Proponents of mosaic theory argue that current Fourth Amendment doctrine used to assess whether or not government action constitutes a search "potentially undervalue[s] privacy rights.
"[55] The "large-scale and long term aggregations of data" at issue in cases like Carpenter merit protection under the Fourth Amendment because they are fundamentally different from that which might be gathered in "single event" or "small-scale" acts of surveillance.
