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8 Duke J. Const. L. & Pub. Pol'y 1 (2012-2013)

handle is hein.journals/dukpup8 and id is 1 raw text is: MAKING THE MOST OF UNITED STATES V. JONES IN A SURVEILLANCE SOCIETY: A STATUTORY IMPLEMENTATION OF MOSAIC THEORY CHRISTOPHER SLOBOGIN* I. INTRODUCTION In the Supreme Court's recent decision in United States v. Jones, a majority of the Justices appeared to recognize that under some circumstances aggregation of information about an individual through governmental 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 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. In United States v. Jones,' the Supreme Court took a giant step into the modern age. Ignoring the insinuation of its own precedent, the entire Court, albeit in three separate opinions, signaled that technological tracking of a car can be a search under the Fourth Amendment. Even more importantly, all three opinions in Jones * Milton Underwood Professor of Law, Vanderbilt University Law School. The author would like to thank participants in workshops at Vanderbilt Law School and at the Privacy Law Scholars' Conference, June 8, 2012, for their feedback on drafts of this article. 1. 132 S. Ct. 945 (2012). 2. See infra text accompanying notes 31-38.

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