December 2012 Vol. 111 No. 3 THE REVIEW
ARTICLES

The Mosaic Theory of the Fourth Amendment

Orin S. Kerr

In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.

This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that a mosaic theory would raise, and it analyzes the merits of the proposed new method of Fourth Amendment analysis. The Article makes three major points. First, the mosaic theory represents a dramatic departure from the basic building block of existing Fourth Amendment doctrine. Second, adopting the mosaic theory would require courts to answer a long list of novel and challenging questions. Third, courts should reject the theory and retain the traditional sequential approach to Fourth Amendment analysis. The mosaic approach reflects legitimate concerns, but implementing it would be exceedingly difficult in light of rapid technological change. Courts can better respond to the concerns animating the mosaic theory within the traditional parameters of the sequential approach to Fourth Amendment analysis.

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Interpreting Regulations

Kevin M. Stack
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NOTES

Cyberattacks and the Covert Action Statute: Toward a Domestic Legal Framework for Offensive Cyberoperations

Aaron P. Brecher

 

Cyberattacks are capable of penetrating and disabling vital national infrastructure, causing catastrophic economic harms, and approximating the effects of war, all from remote locations and without the use of conventional weapons. They can be nearly impossible to attribute definitively to their sources and require relatively few resources to launch. The United States is vulnerable to cyberattacks but also uniquely capable of carrying out cyberattacks of its own. To do so effectively, the United States requires a legal regime that is well suited to cyberattacks' unique attributes and that preserves executive discretion while inducing the executive branch to coordinate with Congress. The trouble is that it is unclear which domestic legal framework should govern these attacks. The military and intelligence communities have disputed which of their respective legal regimes should control. The choice between these frameworks raises important issues about the policy benefits of the executive branch keeping Congress informed regarding cyberattacks that it conducts. It also raises constitutional questions about the branches' respective roles in warmaking when the chosen course of conduct blurs the line between an intelligence operation and an act of war. This Note argues that, in the absence of an independent congressional authorization to use force against a target, the covert action statute, which demands written reports from the president to the congressional intelligence committees in advance of operations, should presumptively govern, and that the president should issue an executive order to that effect.

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The Basel III Liquidity Coverage Ratio and Financial Stability

Andrew W. Hartlage
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