In the Supreme Court’s recent decision in Jones v. United States a majority of the justices appeared to recognize that under some circumstances aggregation of information about an individual through government surveillance can amount to a Fourth Amendment search. If adopted by the Court, this notion - sometimes called “mosaic theory” - could bring about a radical change to Fourth Amendment jurisprudence, not just in connection with surveillance of public movements - the issue raised in Jones - but also with respect to the government’s increasingly pervasive record-mining efforts. One reason the Court might avoid the mosaic theory is the perceived difficulty of implementing it. This solicited article provides, in the guise of a model statute, a means of doing so. More specifically, this article explains how proportionality reasoning and political process theory can provide concrete guidance for the courts and police in connection with physical and data surveillance.Slobogin concludes -
The statute proposed in this article attempts to implement mosaic theory through application of two frames for thinking about the Fourth Amendment: the proportionality principle and political process theory. It answers the four questions left open after Jones as follows:
1. Differentiating between short-term and long-term physical surveillance can be justified under proportionality analysis, and clear, if somewhat arbitrary, distinctions based on the duration of the surveillance can be established.
2. Physical surveillance (including, but not limited to, tracking) should not always require probable cause or a warrant. Proportionality analysis suggests that reasonable suspicion or an even lower standard is an adequate justification for government actions that are only moderately or minimally intrusive.
3. The nature of the offense should normally not affect the justification required by proportionality reasoning. The one exception occurs when a search is necessary to prevent a serious, specific threat.
4. Proportionality reasoning should also apply when government engages in institutional data searches. The third party doctrine should be discarded in this situation; instead, justification should be required for data access, but should vary depending upon the length of time over which the sought-after transactions occurred. The statute also addresses a number of questions not raised in Jones. It redefines search for Fourth Amendment purposes to conform to its lay meaning. It defines probable cause and reasonable suspicion more definitively than the caselaw does, by providing that probable cause searches must be likely to obtain significant evidence of crime, while permitting reasonable suspicion searches that are likely to discover leads to such evidence. It also introduces the idea that general searches - searches of groups in the absence of suspicion - should be regulated differently than targeted searches, through reliance on political process theory.
As important as the content of these proposals is the method of explicating them. Construction of statutes regulating government investigation is crucial, for a number of reasons. First, implementation of Fourth Amendment theory through statutory provisions requires confrontation with the implications of that theory. Until theoreticians are forced to put their prescriptions into action, the logic and feasibility of their proposals cannot be fully evaluated. Second, by providing a template for legislatures, a statutory proposal increases the probability that legislatures will get involved in the process of regulating searches, which itself has several advantages. As Justice Alito suggested in Jones, legislatures are better equipped than courts bound by the case and controversy requirement and judicial restraint to provide detailed and comprehensive regulations. And courts can do a better job evaluating the constitutionality of a given practice if a statute provides them with the framework in which it occurs. For instance, courts might think quite differently about justification requirements if they know that the government is constrained by rules governing notice, disclosure and accountability.
Another advantage legislation is said to have over judicial analysis, also raised by Justice Alito, is that legislatures can be more responsive than courts to changes in the technology used to carry out searches. If the proposed statute is adopted, however, this advantage would be muted, because regulation would not be driven by the method of investigation. A search would occur whenever government is looking for evidence of wrongdoing, regardless of how it does so, and justification levels would be set according to the duration of the search, not the type of technology used or the type of information sought. This approach is not only consistent with the Fourth Amendment’s language and history, but should be able to accommodate even significant changes in the way government chooses to investigate its citizens.The US Federal Communications Commission has meanwhile, in its 43 page Location-Based Services: An Overview of Opportunities and Other Considerations [PDF], apparently heeded telco industry calls for self regulation.
The Overview comments that -
Technological innovations, notably over the past decade, facilitate the collection of substantial amounts of personally identifiable data about virtually anyone who accesses information online. The rapid pace of change in both technology and business models is fueling an active and growing debate in the United States and around the world about the appropriate use of that data. The following report focuses on one part of the discussion: Location-based services (“LBS”), mobile services that combine information about a user’s physical location with online connectivity and are transforming the way Americans work and play.
Among other things, LBS let users access relevant and up-to-date information about their surroundings, inform others of their whereabouts, and get instant access to maps and traffic information for their current location. Whether used for fleet tracking or inventory management, for machine-to-machine communications, or for social networking or entertainment, LBS can create a more dynamic user experience that adds value and convenience and changes the way people transact business and organize their activities and free time.
Not surprisingly, Americans are quickly adopting LBS. As of May 2011, 28% of adult Americans used mobile LBS of some type. LBS are expected to deliver $700 billion in value to consumers and business users over the next decade.
The promise of LBS, however, comes with challenges and concerns. Because mobile devices have the ability — and often the technical requirement — to regularly transmit their location to a network, they also enable the creation of a precise record of a user’s locations over time. This can result in the creation of a very accurate and highly personal user profile, which raises questions of how, when and by whom this information can and should be used.
In light of these developments, the staff of the Federal Communications Commission has prepared this report on LBS. As discussed in greater detail below, drawing upon its experience in protecting consumer privacy, Commission staff believes:
- LBS have tremendous potential to provide value and foster innovation to benefit the economy and consumers;
- LBS industry players face challenges as they attempt to provide consumers with appropriate notice and choice with respect to the use of the data generated by LBS and the devices and networks that host them;
- Industry is taking steps to respond to these challenges but the degree of responsiveness varies among companies and industry segments; and
- New issues continue to emerge that need to be addressed, timely and responsively.
Consequently, in collaboration with federal partners and industry representatives, Commission staff will continue to monitor industry compliance with applicable statutory requirements and evolving industry best practices to ensure LBS evolves to meet its fullest potential while protecting the legitimate interests of consumers in safeguarding their personally identifiable information.The Federal Trade Commission, just down the road, may have a somewhat less permissive view.