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Christopher Slobogin, Making the Most of United States v. Jones in a Surveillance Society: A Statutory Implementation of Mosaic Theory

By privacylaw | Posted on

Christopher Slobogin, Making the Most of United States v. Jones in a Surveillance Society: A Statutory Implementation of Mosaic Theory

Comment by: Susan Freiwald

PLSC 2013

Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2098002

Workshop draft abstract:

In the Supreme Court’s recent decision in United States v. Jones, a majority of the Justices appeared to recognize that under some circumstances aggregation of information about an individual through governmental surveillance can amount to a Fourth Amendment search. If adopted by the Court, this notion—sometimes called “mosaic theory”—could bring about a radical change to Fourth Amendment jurisprudence, not just in connection with surveillance of public movements—the issue raised in Jones—but also with respect to the government’s increasingly pervasive record-mining efforts. One reason the Court might avoid the mosaic theory is the perceived difficulty of implementing it. This article provides, in the guise of a model statute, a means of doing so. More specifically, this article explains how proportionality reasoning and political process theory can provide concrete guidance for the courts and police in connection with physical and data surveillance.

Christopher Slobogin, The Future of the Fourth Amendment in a Technological Age

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Christopher Slobogin, The Future of the Fourth Amendment in a Technological Age

Comment by: Dorothy Glancy

PLSC 2011

Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1734755

Workshop draft abstract:

The Fourth Amendment is becoming increasingly irrelevant as technology expands police capacity to intrude.   Supreme Court jurisprudence defining “search” for Fourth Amendment purposes—the public exposure doctrine, the general public use doctrine, the contraband-specific doctrine and the assumption of risk doctrine—leaves a vast number of technologically-enhanced search techniques unregulated.  Special needs doctrine leaves many other technological searches, especially those of groups, essentially unregulated. Yet the damage to privacy and related interests caused by these “virtual searches” can be just as significant as the harm associated with physical searches.  Two reforms are proposed.  Where police target a particular individual, innuendo in Supreme Court decisions that “search” might eventually be defined as a layperson would and that the justification for searches should be proportionate to the degree of invasion can form the basis for a regulatory regime that provides meaningful privacy protection without handcuffing the police.  When, instead, government uses technology to conduct mass searches, political process theory—less deferential to law enforcement than special needs doctrine, but more deferential than strict scrutiny analysis—may provide the optimal method of cabining government power.

Stephen Henderson, Government Access to Private Records

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Stephen Henderson, Government Access to Private Records

Comment by: Chris Slobogin

PLSC 2009

Workshop draft abstract:

Although there is room for debate regarding whether the rule is truly monolithic, so far as the provider of information is concerned, there is little to no Fourth Amendment protection for information provided to a third party.  But of course there remain significant legal protections for certain types of third-party information.  A good number of states have constitutionally rejected the federal doctrine, and are working out a more protective constitutional jurisprudence.  And all fifty states and the federal government provide statutory restrictions on government access to certain information in the hands of third parties.  So, the question is not whether the law should provide such restriction, but instead when and how it should do so.  These Standards seek to bring needed uniformity and clarity to the law by providing aspirational “best practices” standards regulating government access to private information in the hands of institutional third parties.  Although very significant decisions are still being made, this includes creating a “privacy hierarchy” of third party information, including articulating how to populate that hierarchy, and then assigning restraints to the various types of information.  While “more private” information is obviously generally deserving of greater restriction upon access, there are difficult decisions to be made regarding how best to enable effective investigations: if there is no way to differentiate different stages of law enforcement activity in an administrable manner, then only relatively light restrictions will be possible.  Moreover, given that law enforcement is increasingly creating databases of information it obtains, it is necessary to craft restrictions on the dissemination and use of third party information previously gathered.  The Standards will address these, and possibly other, concerns.