Much Ado about Mosaics: How Original Principles Apply to Evolving Technology in United States v. Jones

Abstract

This paper argues that supporters and detractors of the concurring opinions in United States v. Jones have overemphasized the role of the “mosaic” or “aggregation” theory in the concurrences. This has led to a misreading of those opinions, an overly narrow view of the Justices’ privacy concerns, and has obscured two limiting principles that are vital to their analysis. This paper provides a path forward by revealing the analysis of reasonable expectation of privacy concerns that is common to both concurrences. The endpoint is a rule both more limited and broader than a simple application of a “mosaic theory.” It is more limited in the sense that the rule applies only to surveillance using technology that operates outside of individual human control and is thus susceptible to overuse and abuse. It is broader in the sense that it finds surveillance intrusive not just where the technology will collect a mosaic of information that reveals more than each one tile of information itself, but where the technology will chill expression of constitutionally protected behavior, behavior that can take place “in public,” with other people, but is shared with a limited group.