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
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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