Updated Version of The Mosaic Theory of the Fourth Amendment

I recently posted a substantially re-written version of my forthcoming article, The Mosaic Theory of the Fourth Amendment. The new version is much tighter; it says more about the purpose of the theory; and it takes a stronger view on whether it should be adopted. Here’s the new abstract:

In the Supreme Court’s recent decision on GPS surveillance, United States v. Jones (2012), five Justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions have always evaluated each step of an investigation individually. Jones introduced what we might call a “mosaic theory” of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.

This article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that a mosaic theory would raise, and it analyzes the merits of the proposed new method of Fourth Amendment analysis. The article makes three major points. First, the mosaic theory represents a dramatic departure from the basic building block of existing Fourth Amendment doctrine. Second, adopting the mosaic theory would require courts to answer a long list of novel and challenging questions. Third, courts should reject the theory and retain the traditional sequential approach to Fourth Amendment analysis. The mosaic approach reflects legitimate concerns, but implementing it would be exceedingly difficult in light of rapid technological change. Courts can better respond to the concerns animating the mosaic theory within the traditional parameters of the sequential approach to Fourth Amendment analysis.

Thanks to the VC commentariat for their many suggestions in a previous thread on a better phrase to use to describe the traditional method of analysis. I ended up replacing the “discrete-steps approach” with the “sequential approach,” which I hope is clearer and more accurate.

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