by Michael Gentithes

In the Fourth Amendment struggle to balance liberty and security, the third-party doctrine in Smith v. Maryland, as applied to telephonic communications, has long held sway. For more than thirty years, government investigators have relied on Smith when accessing, without a warrant, information citizens have voluntarily disclosed to third parties. The government has also assumed that Smith controls the analysis of far-reaching “data dragnets,” like the National Security Agency’s (“NSA”) recently revealed program for the collection of telephony metadata. This assumption goes too far. While Smith’s thirty-six-year-old reasoning remains applicable to the facts of that case, the decision does not resolve modern constitutional quandaries presented by the government’s capability to collect and aggregate massive amounts of civilian information.

In this article, I consider alternatives to the Smith analysis that might explain why the NSA’s program, and others like it, rise to the level of a search, implicating Fourth Amendment interests. I begin with a discussion of the strengths—and one especially glaring weakness—of the so-called “mosaic theory” of the Fourth Amendment. The theory suggests that the government’s use of modern data dragnets might constitute a search, even if no citizen has a privacy interest in the individual data points collected, because, at some level, constant and ubiquitous monitoring paints such a detailed “mosaic” of one’s life that it triggers Fourth Amendment protection. The quantitative whole of all the data collected provides too clear a picture of the subject’s existence to be called a non-search. The mosaic theory, while promising, includes a logical inconsistency with no apparent solution; it claims that some undefined quantity of non-searches amount to a search, and thus commits quantitative error for which no effective rejoinder has yet been proposed.

But another interest is implicated by data dragnets as broad as the NSA’s, one which explains why those programs should meet the strictures of the Fourth Amendment—a collective Fourth Amendment interest is shared by all citizens utilizing telecom services, one that is infringed upon by the NSA’s data collection program. But such a group interest cannot be based on notions of personal privacy alone. Instead, millions of Americans share a joint Fourth Amendment interest in constitutional tranquility, an interest woven throughout the Constitution, that is implied in 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 entirely covert. While the accumulation of millions of non-invasions of privacy cannot amount to one large invasion of privacy, each individual government action does constitute a greater-than-zero infringement upon constitutional tranquility, and the aggregate of those actions may constitute a search.

In the final portions of the article, I suggest that opponents of data dragnets should rely on the collective interest in constitutional tranquility to distinguish Smith, rather than argue for its direct overrule. In light of the Supreme Court’s most elaborate statements on the stare decisis doctrine, Smith is a precedent that should be maintained. Although Smith’s age might give the Court pause in applying it to data dragnets, the opening it provides should be utilized to argue for a mosaic theory enhanced by constitutional tranquility interests, not a reversal of one of the pillars of Fourth Amendment jurisprudence.

In short, Part I provides a brief history of the third-party doctrine in Fourth Amendment jurisprudence, demonstrating how it evolved into a mainstay of the Supreme Court’s interpretation of a search. Part II provides an example of a data dragnet that government agents justified using the third-party doctrine—the NSA’s telephony metadata program. Next, Part III considers the strength of the mosaic theory for distinguishing the government’s actions in Smith from its actions in modern data dragnets. Finding that theory wanting, Part IV details citizens’ shared interest in constitutional tranquility, explaining how that interest can provide the intellectual support needed for its integration into modern Fourth Amendment jurisprudence. Finally, Part V suggests that opponents of data dragnets should favor the mosaic theory augmented by constitutional tranquility over efforts to overturn the Smith decision.

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