Applying the Mosaic Theory of the Fourth Amendment to Disclosure of Stored Records

I’ve blogged a few times about United States v. Maynard, the controversial D.C. Circuit case holding that over time, GPS surveillance begins to be a search that requires a warrant. Maynard introduced a novel mosaic theory of the Fourth Amendment: Although individual moments of surveillance were not searches, when you added up the surveillance over time, all the non-searches taken together amounted to a search. The obvious question is, just how much is enough to trigger a search? At what does point the Constitution require the police to get a warrant?

This issue recently came up in a court order application before Magistrate Judge James Orenstein in Brooklyn seeking historical cell-site location for two cell phones used by a particular suspect. Regular readers will be familiar with Judge Orenstein: He is a very civil libertarian judge who has a strong sense of his own role, and he has concluded that Maynard is correct. In the most recent case, In the Matter of an Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, 2011 WL 679925 (Feb 16, 2011), Judge Orenstein tries to apply Maynard to determine if a particular discosure of information is protected by the Fourth Amendment under the Maynard mosaic theory. In the case, the government sought a court order under 18 U.S.C. 2703(d) for the cell-site records of two phones used by the same person. For one phone, the records were sought for one three-day period and a separate six-day period weeks later, and for the second phone, the records were sought for a twelve-day period several months later. The question was, did these records, viewed collectively, create a mosaic that triggers the Fourth Amendment?

In an earlier case, Judge Orenstein had concluded that the records of a 58-day period of a single cell phone did create a sufficient mosiac as to create a reasonable expectation of privacy under Maynard, such that a warrant was required to release that information. But in this case, Judge Orenstein concludes that the records sought are not protected by a reasonable expectation of privacy — and no warrant is required — because the records if released would not amount to enough of a mosaic to trigger Maynard. As a result, Orenstein agrees to issue the order without first finding probable cause. According to the opinion, here’s the reason why the Fourth Amendment doesn’t apply:

The instant application requires me to consider the point at which a request for location tracking information is extensive enough to trigger the warrant requirement.. . . The rationale in Maynard, in essence, was that a month’s worth of location tracking provides an intimate picture of the subject’s life, and one that he does not meaningfully subject to public exposure, in part because sustained physical surveillance over such a period is effectively impossible.

The Maynard court took pains to distinguish the case before it from the circumstances of United States v. Knotts, 460 U.S. 276 (1983), in which the Supreme Court decided that the use of a beeper to track a single trip on public roads did not implicate the warrant requirement of the Fourth Amendment. Maynard, 615 F.3d at 556. It did not attempt to define the length of time over which location tracking technology must be sustained to trigger the warrant requirement. I recognize that any such line-drawing is, at least to some extent, arbitrary. . . .

I do not mean to suggest that I can or should define the minimum duration that transforms the kind of discrete surveillance effort at issue in Knotts into the sustained location tracking that triggers the warrant requirement under Maynard. I venture no further than the appellate court that decided Maynard. In that case, the government sustained its GPS-based surveillance for one month. . . .

And while the period at issue here — a total of 21 days — is not necessarily so much shorter than the month at issue in Maynard to compel the conclusion that the same reasoning does not apply, there is a further complicating factor here. The government does not seek location tracking records for a single mobile phone over a continuous period of 21 days; instead, it seeks records for one telephone for a three-day period and a separate six-day period weeks later, and also the records of a different telephone (albeit one allegedly used by the same investigative subject) for a twelve-day period several months later. Even if it would be just as impractical for the government to conduct physical surveillance in lieu of electronic tracking for such shorter periods, I cannot assume that the information gleaned over such shorter periods, separated by breaks of weeks or months, would necessarily be as revealing as the sustained month-long monitoring at issue in Maynard.

Because I conclude that the Fourth Amendment does not bar application of the SCA in the circumstances of this case, I grant the government’s application

To my mind, this opinion reveals the absurdity of Maynard’s mosaic theory. The analysis is all “look ma, no hands.” No one knows where the line is, or even what the line is. Sure, you could just count days of surveillance: perhaps 30 days triggers a warrant but 29 days doesn’t. But there is no reason the access to records has to be continuous. The government can skip around days, or get records from a few days here and a few days there. Who can tell how much is enough? No one knows what is revealing, because what is revealing depends on what the records actually say — and no one but the phone companies know what they say. So Judge Orenstein has to wing it, announcing that “he cannot assume” that the information would be revealing because it has breaks in time. But it’s not clear to me why the break in time matters: It’s the same net amount of data collected, so I don’t know why it matters if it was collected all at once or over several discrete periods. And how much of a break matters? If 21 days is too long, is 21 days with a one-day break enough? How about a 3-day break? One week? No one knows, it seems, not even the judge himself.

And of course, as soon as courts are clear as to where the line may be, the police just have to go right up to it to avoid the warrant requirement: They’ll do just shy of what the courts say requires a warrant. And presumably the poilice will then try to get multiple orders over time, meaning that judges will have to develop a jurisprudence of how multiple order applications (perhaps from different law enforcement groups) accumulate pieces of the mosaic. For example, if 30 days is too long, but 15 days with a one-week break is okay, the police can try to get the equivalent of 30 days of records in two parts — 15 days at a time, each with a one-week break. Imagine that there is a different magistrate on duty when the second order is obtained. Does the second judge need to know of the prior order, so he can properly accumulate the days of surveillance and realize that the break in time of one order is filled by the second order so that the collection of the two orders amounts to a search? If so, are the contents of the first order supressible, even though it alone didn’t amount to a search, on the theory that the collection of the first and second order together amounted to a search, and that they should be viewed together even though the orders were obtained at different times?

There are some readers who will say that the cause of justice sometimes requires hard decisions, and that if judges need to make arbitrary calls like that, then that is what we pay them to do in order to enforce the Constitution. But as I see it, the oddity of the inquiries called for by the Maynard mosaic theory shows why it is not part of the Constitution at all. In Fourth Amendment law, the lawfulness of governent conduct has always been viewed discretely: Each government act is either a search or it is not a search. Under Maynard, conduct can be a non-search if viewed in isolation but a search if viewed in context — but there is no guide to tell how much context is proper. If you want to say that certain conduct is a search, then just be direct and say it’s a search. That’s fine. But a mosaic theory, in which non-searches become searches if grouped a particular way, has no proper place in Fourth Amendment law.