Orin Kerr: “Applying the Mosaic Theory of the Fourth Amendment to Disclosure of Stored Records”

Orin Kerr on the Volokh Conspiracy: Applying the Mosaic Theory of the Fourth Amendment to Disclosure of Stored Records, posted April 5th:

I’ve blogged a few times about United States v. Maynard, the controversial D.C. Circuit case holding that over time, GPS surveillance begins to be a search that requires a warrant. Maynard introduced a novel mosaic theory of the Fourth Amendment: Although individual moments of surveillance were not searches, when you added up the surveillance over time, all the non-searches taken together amounted to a search. The obvious question is, just how much is enough to trigger a search? At what point does the Constitution require the police to get a warrant?

This issue recently came up in a court order application before Magistrate Judge James Orenstein in Brooklyn seeking historical cell-site location for two cell phones used by a particular suspect. Regular readers will be familiar with Judge Orenstein: He is a very civil libertarian judge who has a strong sense of his own role, and he has concluded that Maynard is correct. In the most recent case, In the Matter of an Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, 2011 WL 679925 (Feb 16, 2011), Judge Orenstein tries to apply Maynard to determine if a particular discosure of information is protected by the Fourth Amendment under the Maynard mosaic theory. In the case, the government sought a court order under 18 U.S.C. 2703(d) for the cell-site records of two phones used by the same person. For one phone, the records were sought for one three-day period and a separate six-day period weeks later, and for the second phone, the records were sought for a twelve-day period several months later. The question was, did these records, viewed collectively, create a mosaic that triggers the Fourth Amendment?