District of Columbia Jones and the Mosaic Theory-in Search of a Public Right of Privacy: the Equilibrium Effect of the Mosaic Theory

• Publication year: 2021

92 Nebraska L. Rev. 504. District of Columbia Jones and the Mosaic Theory-In Search of a Public Right of Privacy: The Equilibrium Effect of the Mosaic Theory

District of Columbia Jones and the Mosaic Theory-In Search of a Public Right of Privacy: The Equilibrium Effect of the Mosaic Theory

Jace C. Gatewood(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 505

II. Technology and the Fourth Amendment ............... 510
A. Original Intent of the Fourth Amendment and Its Practical Limitations .............................. 510
B. The Fourth Amendment and the Pressures Exerted by Advanced Technology ........................... 514
1. Wiretapping ................................... 514
2. Pen Registers .................................. 517
3. Beepers ....................................... 519
4. Thermal Imaging .............................. 520
5. GPS Devices ................................... 521

III. The Mosaic Theory and the Fourth Amendment ....... 523
A. The Origins of the Mosaic Theory .................. 523
B. Maynard, Jones, and the Mosaic Theory ........... 524
1. The Maynard Decision ......................... 524
2. The Jones Decision ............................ 527
C. Issues Regarding the Implementation of the Mosaic Theory ............................................ 528

IV. Equilibrium Effect of the Mosaic Theory ............... 530
A. The Mosaic Concept ............................... 530
B. Application of the Mosaic Theory .................. 531
C. Equilibrium Effect of the Mosaic Theory ........... 533

V. Conclusion ............................................ 535

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I. INTRODUCTION

If you are a diehard fan, as I am, of the famed Indiana Jones movie franchise,(fn1) you will undoubtedly remember Indiana Jones and the Last Crusade. (fn2) In this third installment of the Indiana Jones franchise, Indiana Jones, the renowned adventurer and archaeologist, receives a diary from his father, Dr. Henry Jones Sr., that holds several innocuous clues and a map with no monikers that supposedly reveals the location of the wondrous Holy Grail.(fn3) By piecing together seemingly innocuous clues, one after another, clue by clue, using only the diary and the map as a guide, Indiana Jones is able to determine the exact location and whereabouts of the Holy Grail, which had been mysteriously lost for hundreds of years, and, in doing so, he managed to stop Adolf Hitler and the Nazis from world domination. Imagine, taking ostensibly independent, innocuous clues that hold very little probative value in and of themselves but, when amassed together, hold the secret to the greatest discovery of mankind: a secret that for several hundred years the Knights of the First Crusade defended, died for, and tried to keep hidden from public eye. Well, while only a fictional movie, this is exactly what Indiana Jones was able to do in 1938 using only a diary and a map with no names. Imagine the movie today, but only this time, Indiana Jones has a GPS device.(fn4)

Essentially, but in less dramatic form, this is the argument raised by District of Columbia Jones(fn5) in United States v. Maynard .(fn6) Antoine Jones, who was the owner of a nightclub in the District of Columbia called "Levels," was convicted of conspiracy to distribute and possession with the intent to distribute cocaine and cocaine base.(fn7) Jones's

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conviction was based in part on the use of a GPS tracking device attached to a Jeep driven by Jones. The GPS tracking device was used by law enforcement to track Jones's movements twenty-four hours a day over a twenty-eight day period.(fn8) Jones argued that his conviction should be overturned because the police violated his Fourth Amendment rights by tracking him without a warrant.(fn9) Specifically, Jones argued that the use of the GPS tracking device violated his "reasonable expectation

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of privacy"(fn10) and was therefore a search under the Fourth Amendment. The D.C. Circuit Court, in an opinion written by Judge Douglas Ginsburg and joined by Judges Tatel and Griffith, decided that the government's warrantless use of a GPS tracking device to track Jones's every movement for a four-week period violated his Fourth Amendment protection against unreasonable searches and introduced a new theory of Fourth Amendment jurisprudence-the "mosaic theory."(fn11)

The mosaic theory refers to a concept borrowed from a series of cases involving challenges by the government to requests under the Freedom of Information Act (FOIA),(fn12) which was adapted by the May-nard court for Fourth Amendment use.(fn13) The theory is based on the concepts that the whole is greater than the sum of its individual parts and that the aggregation of information takes on greater significance when combined with other information.(fn14) "Combining the items illuminates their interrelationships and breeds analytic synergies, so that the resulting mosaic of information is worth more than the sum of its parts."(fn15) Applying this theory in Maynard, the D.C. Circuit Court found that isolated and discrete actions of the government that are not deemed searches individually may become searches when aggregated together en masse,(fn16) thus violating a person's reasonable expectation of privacy.(fn17) Aided by this newly formulated theory, the Maynard court found that the government's warrantless use of a GPS tracking device to track the defendant's public movements for four weeks violated the defendant's reasonable expectation of privacy and constituted a search under the Fourth Amendment.(fn18)

The Maynard decision marked a dramatic shift in Fourth Amendment jurisprudence and, at the time of its decision in 2010, was contrary to holdings of several other circuit courts.(fn19) When the Supreme Court reviewed the Maynard decision in 2012 in the retitled action United States v. Jones,(fn20) even though the Supreme Court did not resolve the case using the mosaic theory, Justice Sotomayor's concurring opinion and Justice Alito's concurring opinion, which was signed or joined by three other justices, endorsed some form of the mosaictheory.(fn21)

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In the aftermath of Maynard, many articles were written on the mosaic theory and its viability for Fourth Amendment application.(fn22) Some of the articles argued against the wisdom of the mosaic theory and its use in Fourth Amendment jurisprudence because of its imprac-ticability.(fn23) According to those commentators, implementing the mosaic theory would be difficult if not impossible to administer.(fn24) Without a doubt, the mosaic theory raises several challenging issues for the future of Fourth Amendment jurisprudence. Notwithstanding, however, and despite the wide-ranging criticism, the application of the mosaic theory may help establish and restore a balance between our public and private lives.

Prior to the dawn of modern technology, "the greatest protections of privacy were neither constitutional nor statutory, but practical."(fn25) In the pre-computer age, we could go about our daily public lives without the fear or even conscious thought that our day-to-day movements and our comings and goings were monitored or even taken note of, precisely because the effort and cost required to undertake such a task was impractical.(fn26) Today, amid new technologies capable of constant twenty-hour, seven-day-a-week monitoring, the boundary between our public and private life is no longer defined by practical considerations and, as a result, our privacy (and our reasonable expectation of privacy) is being eroded with each new technological advance. With to

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day's technology, the government is no longer constrained by investigatory methods that require massive amounts of time, manpower, or resources.(fn27) New technology has enabled law enforcement officials to become more cost-effective and efficient, without concern with the practical considerations that existed prior to wiretaps,(fn28) penregistries,(fn29) thermal scanners,(fn30) beepers,(fn31) and GPS technology.(fn32)

Notwithstanding the many issues raised with respect to the use of the mosaic theory as a new Fourth Amendment theory for protection of privacy rights,(fn33) the application of the mosaic theory in Fourth Amendment jurisprudence may help resolve issues that neither Katz nor Jones resolve(fn34) and may help strike a balance between the government's interest in investigating crime and society's interest in maintaining privacy in and out of the public eye. In short, the mosaic theory will ensure the degree of public privacy, particularly with respect to our public movements, that society has come to expect, despite the erosion of practical considerations that once limited the extent to which law enforcement could invade individual privacy rights without violating the Fourth Amendment.(fn35)

In this regard, this Article will discuss the mosaic theory and the issues raised regarding its viability in resolving Fourth Amendment privacy concerns, particularly concerns raised over one's public movements from place to place in the wake of advanced surveillance and monitoring technology. Additionally, this Article will discuss how application of the mosaic theory, despite its flaws, may provide a balanc

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ing effect between the protections afforded by the Fourth Amendment and technological advances that continually blur the line between what is private and what...