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Fourth Amendment debates about quantitative privacy have so far been dominated by discussion of the “mosaic” theo- ry.249 _{Under the mosaic theory, Fourth Amendment interests} would be determined on a case-by-case basis by assessing the quality and quantity of information about a suspect gathered in the course of a specific investigation.250 _{The United States} Court of Appeals for the District of Columbia adopted this ap- proach in the predecessor to Jones.251 _{The concurring opinions} in Jones also appear to endorse the mosaic theory.252 _{In the} months after Jones, prominent quantitative privacy advocates have come forward to expand, explore, and defend the mosaic approach.253 _{At the same time, the mosaic approach has been a} target for pointed criticism on both doctrinal and practical grounds.254

In our view, the threshold Fourth Amendment question raised by quantitative privacy concerns is whether an investi- gative technique or technology has the capacity to facilitate broad programs of indiscriminate surveillance that raise the specter of a surveillance state if deployment and use of that technology is left to the unfettered discretion of government.

We think that the Fourth Amendment and the pri- vacy issues at stake, as we have described them here, suggest taking a different tack.

255 There are a number of ways that the Fourth Amendment sta- tus of a surveillance technique or technology could be deter- mined. The most obvious would be for anyone who knows that he or she has been subject to surveillance by a novel technolo- gy, or dramatically improved existing technology, to file a civil suit seeking equitable relief or even damages.256

249. See, e.g., Jones, 132 S. Ct. at 953–54; Kerr, supra note

In such an ac-

33, at 330–54; Slobogin, supra note 53, at 3.

250. See, e.g., Slobogin, supra note 53, at 3.

251. See United States v. Maynard, 615 F.3d 544, 562 (D.C. Cir. 2010), aff’d United States v. Jones, 132 U.S. 945 (2012).

252. Jones, 132 S. Ct. at 954 (Sotomayor, J., concurring); id. at 964 (Alito,

J., concurring).

253. See, e.g., Slobogin, supra note 53, at 3–4, 12–23.

254. See, e.g., Jones, 132 S. Ct. at 953–54; Kerr, supra note 33, at 330–54. 255. See Freiwald, supra note 41, at 15–18 (arguing for a Fourth Amend-

ment focus on surveillance technologies).

256. See, e.g., Clapper v. Amnesty Int’l, 133 S. Ct. 1338 (2013) (holding that

Article III requires that a party seeking to challenge the constitutionality of the Foreign Intelligence Surveillance Act (FISA) or executive conduct licensed by the Foreign Intelligence Surveillance Court (FISC) must have actual

tion, a court would first need to determine whether the tech- nology at issue should be subject to Fourth Amendment regula- tion. Among the important factors that a court would need to consider are: (1) the inherent scope of a technology’s surveil- lance capabilities, be they narrow or broad; (2) the technology’s scale and scalability; and (3) the costs associated with deploy- ing and using the technology. If a court finds that a challenged technology is capable of broad and indiscriminate surveillance by its nature, or is sufficiently inexpensive and scalable so as to present no practical barrier against its broad and indiscrimi- nate use, then granting law enforcement unfettered access to that technology would violate reasonable expectations of quan- titative privacy.257

The critical goal, of course, will be to tailor an approach that satisfies Fourth Amendment standards by reflecting a clear understanding and appreciation of both the law enforce- ment and privacy interests at stake.

258

Once a surveillance technology has been identified as im- plicating the Fourth Amendment, and a reasonable approach to limiting law enforcement’s access and discretion has been de- vised, subsequent litigants would have the option of challeng- ing law enforcement’s conformance with the regulatory scheme (be it a warrant regime or some other means), the constitution- ality of law enforcement’s conduct regardless of the scheme, or both. For students of criminal procedure, there is no surprise here. After all, defendants subject to physical searches of their homes are at liberty to challenge the constitutionality of local warrant procedures,

259 _{the constitutionality of a warrant,}260

knowledge that he, she, or it is subject to surveillance under FISA, an order of the FISC, or both, in order to establish standing). Although it is not necessary to our argument here, we see no reason why any citizen could not bring a Fourth Amendment claim challenging law enforcement’s unfettered access to a surveillance technology or the Fourth Amendment sufficiency of a legislative or executive regulatory scheme governing law enforcement’s access to a sur- veillance technology. After all, each of us has an equal share in the right of the people to be secure from the vagaries of a surveillance state.

and

257. See supra Parts I‒II.

258. In other work, we have described in detail and at length some of the law enforcement interests served by many emerging surveillance and data ag- gregation technologies. See generally Gray, Citron & Rinehart, supra note 25.

259. See, e.g., Connally v. Georgia, 429 U.S. 245, 246 (1977) (challenging

constitutionality of local procedure whereby magistrates were only paid if they issued a warrant); Coolidge v. New Hampshire, 403 U.S. 443, 449 (1971) (chal- lenging local practice of allowing law enforcement officials to issue warrants).

260. See, e.g., Winston v. Lee, 470 U.S. 753, 755 (1985) (challenging war-

even the constitutionality of law enforcement’s conduct during a warranted search.261

In this Part, we elaborate further how this technology- centered approach would work in practice by considering how it would apply to emerging surveillance technologies, such as aer- ial drones, GPS-enabled tracking, the NSA’s telephonic and da- ta surveillance programs, and the NYPD’s Domain Awareness System, and how it would apply to traditional investigative methods like human surveillance. We begin by explaining the Fourth Amendment pedigree of our technology-centered ap- proach.

Thus, although the technology-centered approach to conceptualizing and defending Fourth Amendment rights to quantitative privacy proposed here is novel, its appli- cation would not require straying from well-traveled litigation pathways.