Social Networks, Government Surveillance, and the Fourth Amendment Mosaic Theory

Abstract

The mosaic theory — first articulated by the Supreme Court in United States v. Jones two years ago — has turned out to be an empty promise of Fourth Amendment protection. However, this may have less to do with the theory itself and more to do with the context in which it has been applied. Introduced as a mechanism to combat long-term GPS police surveillance, scholars have widely criticized the theory as untenable and too costly. Its application jeopardizes long-standing police investigative tactics, including the use of undercover informants and even short-term human surveillance.

This Article provides the first application of the mosaic theory to social networking communications over the Internet. The refrain of “the sum is greater than the parts” remains. Only this time it is a group of communications, not a person’s movements, that informs the relevant analysis. This Article employs the principle of associational rights — referenced by Justice Sotomayor in Jones — as a key ingredient to explaining why these social networking communications, in the aggregate, merit privacy protection. This is not simply an academic exercise. In light of the news that the NSA has been collecting messages over sites such as Facebook, courts need a Fourth Amendment framework to protect these communications where one currently does not exist. This narrow use of the theory also has the benefit of preserving the current Fourth Amendment landscape and the police’s ability to use a wide range of investigative tactics.