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Y O U N G L A W Y E R S J O U R N A L
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
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.
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
38 JANUARY 2015
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