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Constitutional Searches from Space – Part III: Mosaic Theory and Tracking from Space

by Tyler Pittman

This post is part of the student blogger project from the summer session of Space Security Law.

Tyler Pittman is a 2L at the University of Mississippi School of Law. He is fascinated by American criminal law, by space law, and by international law. He is pursuing certificates in Space Law and Criminal law at Ole Miss.

In Part V of his concurrence in U.S. v. Jones, Justice Alito discusses the implications technology has on modern searches. In essence, he talks about what is commonly called the Mosaic Theory.1 The Mosaic Theory suggests “prolonged surveillance reveals types of information not revealed by short-term surveillance.”2 The idea is that anyone can see the activities of an individual over a short period of time, i.e. a tile of the mosaic, but no one can see an individual’s entire course of activity over an extended period of time, i.e. the entire mosaic. Justice Alito and the three justices joining in the concurrence suggest that a reasonable expectation of privacy exists from being observed over an extended period.

With the progression of technology, the Mosaic Theory has become a sound basis for argument against warrantless searches using tracking technology, and it is highly relevant to remote sensing space technology. Satellite observation, in whatever manner, is almost limitless. Satellite constellations can be set up to view the entire earth at almost any time, and this means that for a person under government surveillance escape is impossible.3 If the government is allowed to observe citizens using satellite technology without a warrant requirement, it necessarily leads to an outcome where a person has no subjective expectation of privacy outside the home. This eliminates the first prong of the Katz analysis, supra, and as a result eliminates the analysis altogether. Having that happen would be catastrophic in Fourth Amendment jurisprudence, “for the Fourth Amendment protects people”, and thus their privacy.4 Society certainly would not approve of anyone following an individual for extended periods while observing that individual’s every move. Katz rightly recognizes society’s interest in individual privacy, and allowing warrantless observation from space would undermine the very basis of Fourth Amendment jurisprudence.

While the Mosaic Theory offers argument against warrantless searches from space, it also inherently supports a modified Kyllo analysis for these searches.5 The basis of the theory is that one cannot see another’s every move without some extra effort. Kyllo focuses on a person’s inability to obtain information without sense-enhancing devices. In effect, extending Kyllo beyond the home would offer constitutional protection that is already in consideration among the courts.6 Sense-enhancing devices allow the government to see the entire picture. Whether there is a wall, roof, or 200 miles of atmosphere between the place being searched and the official, sense-enhancing technologies, like remote sensing, endanger subjective expectations of privacy that the Fourth Amendment has long protected. It seems from support of the Mosaic Theory that courts would be apt to apply Kyllo-like reasoning to situations involving searches from space and thus would not allow privacy protection to collapse.
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1 U.S. v. Jones, 132 S.Ct. 945, 963-964 (2012)
2 U.S. v. Maynard, 315 F.3d 544, 562 (D.C. Cir. 2010)
3 Cf. Wright, Grego & Gronlund, THE PHYSICS OF SPACE SECURITY 33-34 (Cambridge, American Acadamy of Arts and Sciences 2005)
4 Katz v. U.S., 389 U.S. 347, 351, 88 S.Ct. 507, 511 (1967)
5 Kyllo v. U.S., 533 U.S. 27, 40, 121 S.Ct. 2038, 2046 (2001); See Part II of this post – Constitutional Searches From Space – Part II: Kyllo v. United States, California v. Ciraolo, and Satellites as Sense-Enhancing Devices
6 See Maynard, supra; See also Jones at 963-964