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

47 Pages Posted: 20 Jun 2013

See all articles by Jace C. Gatewood

Jace C. Gatewood

Atlanta's John Marshall Law School

Date Written: June 1, 2013

Abstract

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), and adapted by the Maynard court for Fourth Amendment use. The theory is based on the concept 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 items of information. Applying this theory in Maynard, the court found that isolated and discrete actions of the government that are not deemed searches individually, may become searches when aggregated together en masse, thus violating a person’s reasonable expectation of privacy. In this regard, the Maynard court found that the government’s warrantless use of a GPS tracking device for four weeks violated the defendant’s reasonable expectation of privacy and constituted a search under the Fourth Amendment. 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. In the aftermath of Maynard, many articles were written on the mosaic theory and its viability for Fourth Amendment use. Some of the articles argued against the wisdom of the mosaic theory and its use in Fourth Amendment jurisprudence because of its impracticability. However, notwithstanding the perceived difficulty of applying the mosaic theory to Fourth Amendment violations, it is precisely the impracticality of the use of the mosaic theory that will save Fourth Amendment privacy rights and restore a balance between the government’s interest in investigating crime and society’s interest in maintaining privacy in and out of the public eye. Prior to the advent of modern technology, "the greatest protections of privacy were neither constitutional nor statutory, but practical." Today, amid new technologies capable of constant twenty-four hour, seven day-a-week, monitoring, the boundary between privacy and pragmatic considerations is non-existent, and privacy protection has been eroded in favor of law enforcement. No longer is the government constrained by investigatory methods that require massive amounts of manpower or resources. New technology has enabled law enforcement officials to become more cost-effective and more efficient, without concern to the pragmatic considerations that existed prior to wiretaps, pen registries, thermal scans, beepers and GPS technology. The mosaic theory will help establish equilibrium between privacy expectations and effective law enforcement. This Article discusses the mosaic theory and the issues raised regarding its viability in resolving Fourth Amendment privacy concerns in the wake of advanced technology, and how its application, despite its flaws, will provide a balancing effect between the protections afforded by the Fourth Amendment and technological advances that continually exert pressure on the scope and meaning of the Fourth Amendment.

Suggested Citation

Gatewood, Jace C., District of Columbia Jones and the Mosaic Theory – In Search of a Public Right of Privacy: The Equilibrium Effect of the Mosaic Theory (June 1, 2013). Nebraska Law Review, Vol. 92, No. 3, 2014, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2282019

Jace C. Gatewood (Contact Author)

Atlanta's John Marshall Law School ( email )

1422 W. Peachtree Street, N.W.
Atlanta, GA 30309
United States
(404) 872-3593 (Phone)

HOME PAGE: http://www.johnmarshall.edu

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