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