Summary
Justice Sotomayor's concurrence in United States v. Jones recognized that aggregating individually innocuous data can itself be a constitutional harm, and Carpenter partly vindicated the insight. Yet mosaic theory has remained largely aspirational. Professor David Gray's work explains why and proposes a technology-centered, collective-rights alternative that correctly calls for structural regulation.
This article accepts Gray's diagnosis and offers a prescription. His framework leaves three problems unresolved: threshold indeterminacy as technologies converge, remedial incompleteness, and no specification of what compliance requires. All three share a root: like every existing doctrine, the framework evaluates governmental acts rather than ongoing governmental relationships. The fiduciary framework supplies a categorical relational test grounded in Otis's characteristics, constitutionally derived duties that close the remedial gap, and a structural question courts are equipped to answer.
Key claims
- The general-warrant prohibition is about relationships, not acts.
- The Otis test removes threshold indeterminacy.
- Fiduciary duties supply the architectural mandates mosaic theory lacks.
Where it fits
Read on the site: Proposition 2: a fiduciary charter.
Cite as
Michael G. Leahy, Completing the Mosaic: How a Fiduciary Framework Grounds Aggregate Surveillance Theory in Constitutional Structure (2026), https://ssrn.com/abstract=7138819.