Tranquility & Mosaics in the Fourth Amendment: How Our Collective Interest in Constitutional Tranquility Renders Data Dragnets Like the NSA's Telephony Metadata Program a Search

Abstract

For nearly 40 years, law enforcement officials have relied upon the third party doctrine, a tenet of Supreme Court jurisprudence holding that citizens have no privacy interests in information they voluntarily disclose to third parties, to legally monitor individual’s phone calls, bank accounts, and even private conversations without meeting the Fourth Amendment’s warrant or probable cause requirements. But recent revelations about the ability of government agents to utilize massive dragnets to mine “big data” have startled the public and led the judiciary to re-evaluate the soundness of the third party doctrine. Some have championed a “mosaic theory” of the Fourth Amendment, arguing that data dragnets constitute a search because, at some level, constant and ubiquitous monitoring paints such a detailed mosaic of one’s life that it triggers the Fourth Amendment’s requirements. But to become canonical, that theory must overcome a glaring arithmetic flaw–its claim that somehow, a massive quantity of non-searches can be tallied together to create a singular search. This flaw threatens to derail an otherwise promising retort to the third party doctrine that could limit government use of data dragnets.

This Article uses the concept of constitutional tranquility to present a solution to that flaw in the mosaic theory. Rather than suggest judges can mystically divine what quantum of data is simply too much to be collected without a warrant, I propose augmenting the mosaic theory by relying upon a distinct constitutional interest shared by the subjects of such broad data dragnets. There is a joint Fourth Amendment interest in constitutional tranquility, an interest woven throughout the Constitution that is also an implied precondition of Justice Brandeis’s expression of the Fourth Amendment’s primary aim — to protect citizens’ “right to be let alone.” Constitutional tranquility implies citizens’ freedom from undue government harassment even if, in intruding upon it, the government never accesses anything truly “private” and keeps its activities wholly covert. While data dragnets simply accumulate millions of non-invasions of privacy, each time the government captures a data point it commits a greater-than-zero infringement upon constitutional tranquility. Those actions in the aggregate can be a search.