{"id":1644,"date":"2013-04-22T13:51:08","date_gmt":"2013-04-22T13:51:08","guid":{"rendered":"http:\/\/ncjolt.org\/?p=1644"},"modified":"2020-06-04T20:54:01","modified_gmt":"2020-06-04T20:54:01","slug":"beyond-united-states-v-jones-the-absolute-mosaic-the-inverted-fourth-amendment","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/beyond-united-states-v-jones-the-absolute-mosaic-the-inverted-fourth-amendment\/","title":{"rendered":"Beyond United States v. Jones: The Absolute Mosaic & The Inverted Fourth Amendment"},"content":{"rendered":"

Sunday, April 21, 2013, by Ken Jennings
\nThe Mosaic Theory of the Fourth Amendment<\/a> has featured front-and-center in the continuing debate over the impact of the Supreme Court\u2019s decision in United States v. Jones<\/a>.\u00a0 In Jones<\/i>, law enforcement officials tracked the location of the defendant\u2019s (borrowed) vehicle for 28 days via a GPS device installed outside the scope of a valid warrant.\u00a0 The D.C. Circuit leaned heavily on a reasonable expectation of privacy rationale to find in favor the defendant, planting the seeds of the Mosaic Theory.\u00a0 They stated that prolonged GPS surveillance, \u201creveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.\u201d
\nA Scalia-led majority upheld the D.C. Circuit based on a rediscovered theory of invasion-by-trespass, largely avoiding discussion of mosaics.\u00a0 Alternatively, some scholars have emphasized the Mosaic Theory in the Jones<\/i> concurrences<\/span><\/a>.\u00a0 In a soon-to-be-published paper (NC Journal of Law and Technology<\/a>, Volume 14 Issue 2) Priscilla Smith<\/a> argues that the concurring Justices\u2019 approach is more subtle.\u00a0 Rather than being concerned with the effects of aggregation, Smith reads the concurrences as describing concern for the ease with which new technologies capture information that has previously been too expensive for law enforcement to obtain.\u00a0 In either reading, it is clear that at least four members of the Supreme Court are worried about Fourth Amendment protections in this brave new world.\u00a0 This article considers one extreme hypothetical, in the hopes of testing the Mosaic Theory and perhaps divining a better understanding of the Fourth Amendment.
\n 
\nThe Absolute Mosaic<\/i>
\n 
\nSuppose that the technology of today could instantly be advanced by roughly 25 years.\u00a0 Imagine a world where all the data that people so haphazardly share on social networks, including demographics, personal interests, relationship status, and location, are passively collected.\u00a0 Furthermore, practically everything you interact with on a daily basis now includes an embedded computer: books, magazines, movies, smart surfaces (tables\/walls); your eyeglasses, your refrigerator, your car.\u00a0 The computer science concept of ubiquitous computing<\/a> lends some credibility to this fiction.\u00a0 The sum total of all this information processing power is a perfect record of your activities.\u00a0 This absolute mosaic<\/i> has no holes; the spacing between tiles<\/i> is practically nonexistent.
\nNow imagine that law enforcement has the means to access that record.\u00a0 Assume, for simplicity, that accessing the data does not constitute a trespass in any traditional sense of the word.\u00a0 Would the Fourth Amendment, as we know it, prohibit warrantless access to some\/all\/none of this information?\u00a0 Records of activities taking place in the home would clearly fall under Fourth Amendment protection.\u00a0 Likewise, records of activities in overtly public places (reading a book in a coffee shop), where no reasonable expectation of privacy exists, would not be protected.\u00a0 Thus the answer is arguably that some <\/i>of the information stored in such a system should be openly accessible to law enforcement.
\nIt is interesting that, in such a world, the Fourth Amendment is inverted.\u00a0 Rather than pro-actively preventing the collection of protected information, it becomes a filter<\/i>.\u00a0 For example, when a police officer queries the system for an individual\u2019s information without a warrant, it would need to remove from its report any records collected at that individual\u2019s home or other \u201cconstitutionally protected areas.\u201d\u00a0 The result could be visualized as a set of more-or-less arbitrarily defined circles on a map, within which records of your activities are protected by the warrant requirement.\u00a0 That protection might provide meager comfort.\u00a0 For many individuals, a large majority of their daily activities would occur outside of those circles.\u00a0 Where law enforcement has uninhibited access to 99% of your reading habits, for example, it becomes trivial to deduce what you are reading in the privacy of your home.
\nIt seems clear that such pervasive collection of personal information would have a chilling effect on personal activity, which Ms. Smith points out as a principle concern of the concurring Justices.\u00a0 Even if societal attitudes towards privacy shift drastically to acceptance of pervasive collection, however, the Mosaic Theory would offer pause.\u00a0 At least where the Mosaic is sufficiently complete, the aggregate effect of information collected in non-protected areas threatens individual privacy even in locations where the Fourth Amendment unequivocally applies.<\/p>\n","protected":false},"excerpt":{"rendered":"

Sunday, April 21, 2013, by Ken Jennings The Mosaic Theory of the Fourth Amendment has featured front-and-center in the continuing debate over the impact of the Supreme Court\u2019s decision in United States v. Jones.\u00a0 In Jones, law enforcement officials tracked the location of the defendant\u2019s (borrowed) vehicle for 28 days via a GPS device installed …<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1644"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=1644"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1644\/revisions"}],"predecessor-version":[{"id":7594,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1644\/revisions\/7594"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=1644"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=1644"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=1644"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}