Back in August, the Third Circuit handed down an unpublished opinion in United States v. Gomez (August 8, 2014), that appears to have rejected the mosaic theory of the Fourth Amendment, at least in the context of telephone metadata. I havent seen any coverage of the decision elsewhere, so I thought I would blog it.

In Gomez, the government obtained a pen register order to monitor the metadata for Gomezs telephone calls for about 5 weeks. Gomez argued that under the Jones concurrences, the prolonged surveillance was sufficient to constitute a Fourth Amendment search. The Third Circuit disagreed in an opinion by Judge Smith joined by Judges Vanaskie and Schwartz:

Gomez first argues that the DEAs prolonged warrantless use of a pen register and trap and trace device violated his privacy rights under the Fourth Amendment. We agree with the District Court that this argument is foreclosed by Smith [v. Maryland]. Gomez provided a third party in this case, Sprint with all the data that the DEA obtained through the use of the pen register and trap and trace device. In so doing, Gomez abandoned his privacy interest in this data because he assumed the risk that the information would be divulged to police. Smith, 442 U.S. at 745, 99 S.Ct. 2577. Although Justice Sotomayor has urged the Court to reconsider Smiths holding that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties, United States v. Jones, U.S. , 132 S.Ct. 945, 957, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring), we remain bound by Smith until a majority of the Court endorses this view.

The Third Circuit then adds the following explanatory footnote:

In the proceedings below, Gomez conceded that his position was contrary to Smith, but cited Justice Sotomayors concurrence in Jones for the proposition that Smith is antiquated and must be reconsidered. J.A. 60. Gomez presents a different argument on appeal. Instead of urging us to overrule Smiths third party doctrine, Gomez contends that this doctrine has already been cabined by five Justices of the Supreme Courta number he reaches by combining Justice Sotomayors and Justice Alitos concurrences in Jones. Appellants Br. 27, 31. As Gomez did not raise this argument before the District Court, it is waived. Holk v. Snapple Beverage Corp., 575 F.3d 329, 336 (3d Cir.2009).

In any event, we reject Gomezs contention that the concurrences in Jones cabined Smith. Justice Alitos concurrence did not explicitly seek to limit Smith, and indeed relied heavily on the fact that drivers of automobiles do not expect third parties to possess detailed, long-term data regarding their location. Jones, 132 S.Ct. at 964 (Alito, J., concurring). By contrast, cell phone users do expect service providers to possess detailed, long-term data regarding the numbers they dial because this information is necessarily conveyed in the course of connecting a call. Smith, 442 U.S. at 743, 99 S.Ct. 2577. By disclosing this data, cell phone users, unlike drivers of automobiles, assume[ ] the risk that a third party will convey it to law enforcement. Id. at 744, 99 S.Ct. 2577. Therefore, we are not persuaded that the two concurrences in Jones have limited Smith to short-term call monitoring.

Off the top of my head, I think this is the first federal court of appeals opinion to directly address the important question of whether the mosaic theory modifies Smith v. Maryland. The opinion was not published and is therefore non-precedential. But given that this is likely to be an important issue when the D.C. Circuit reviews Klayman v. Obama on November 4th, I thought the Third Circuits opinion was worth noting.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

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Volokh Conspiracy: Third Circuit on the mosaic theory and Smith v. Maryland