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That's one possible explanation. A more charitable, and frankly, reasonable explanation would be that Gorsuch places high priority on limiting government power

That's one possible explanation. A more charitable, and frankly, reasonable explanation would be that Gorsuch places high priority on limiting government power through to take private property and thinks of many problems through that lens. That's a view he expressed at oral argument in this case[0], in other privacy-related cases [1][2], and in cases in other contexts[3][4]. Virtually all non-unanimous supreme court decisions are ultimately trade-offs between conflicting rights and values. Congress's power to regulate drugs vs a citizen's right to use drugs in religious ceremonies (Smith). The documentary-maker's right to free speech vs the population's right to ensure free and fair elections by limiting corporate spending on elections (Citizens United). A citizen's right not to be searched for incriminating evidence without a warrant vs. a police officer's need to prevent destruction of evidence and ensure their own safety (Robinson). Different justices place different weight on different rights. Kennedy is a famously protective of free speech, so whenever Free Speech is implicated, he tends to side on the defense of it. Alito places a lot of value in ensuring police have workable rules that can be applied in the field. Those priorities determine where they land on tough issues and how they think issues should be resolved. I think there's a lot of evidence to suggest Gorsuch cares about protecting property rights and that idea is entirely consistent with his reasoning here (without his harboring a secret anti-Roe agenda). [0]https://www.oyez.org/cases/2017/16-402 https://www.oyez.org/cases/2017/16-402 [1] http://www.scotusblog.com/2018/01/argument-analysis-rental-cars-reasonable-expectations-privacy-property-rights/ http://www.scotusblog.com/2018/01/argument-analysis-rental-c... [2] https://www.ca10.uscourts.gov/opinions/13/13-7082.pdf https://www.ca10.uscourts.gov/opinions/13/13-7082.pdf [3] https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf [4] https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/28/neil-gorsuch-opposes-the-kelo-decision-a-terrible-supreme-court-property-rights-ruling-that-trump-supports/?utm_term=.f98377f16a06 https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

bmelton 8y ago
Agreed, and in a hypothetical universe where Gorsuch wrote the majority opinion and 4 justices signed on to his take, we would have even better protections against _Smith_ type privacy infringements than what this current decision might offer. There's still a lot of gray area though -- it's easy to say that the money in my bank is my property, even where it is in the care and custody of a third party, so by that argument, Gorsuch's property argument gives me more privacy protections for non-warranted searches to my banking data, but on the other hand, it's not clear that my Google Map data is 'mine', since Google provides it as a service to me for free, and uses that data for other purposes.
- perpetualpatzer 8y ago
  >It's easy to say that the money in my bank is my property, even where it is in the care and custody of a third party, so by that argument, Gorsuch's property argument gives me more privacy protections for non-warranted searches to my banking data I didn't understand him to be quite saying that. I understood him to be saying, "information about oneself is property. The government may not take your property without cause even someone else is holding it for you. Ergo, they cannot take the information here." As you note--there's a debate that would need to be had whether this is your information that you've given them, or their information that they've created about you and the analogy breaks down a bit for me where that isn't perfectly clear. Roberts seemed during oral arguments like he might have been trying on the information-is-property argument, "This [data] is not simply created by the company, though. It's a joint venture with the individual carrying the phone. That person helps the company create the record by being there and sending out the pings or whatever." That he writes against it here suggests he either didn't like where it led, or possibly couldn't get a majority to sign on to an approach that would uproot Katz when neither party was asking for it.
- toadworrier 8y ago
  > it's not clear that my Google Map data is 'mine' Yep, definitately not clear. But that's why it's a good for courts to start thinking about such things so that principles can emerge out of real-world cases. My guess is that data-ownership is mostly bunk ("information wants to be free"). But privacy advocates who think in those terms are on to something and "ownership" is just the nearest model we can think of. Over time we can evolve a clearer idea of of what that something is.

bmelton 8y ago

Agreed, and in a hypothetical universe where Gorsuch wrote the majority opinion and 4 justices signed on to his take, we would have even better protections against _Smith_ type privacy infringements than what this current decision might offer. There's still a lot of gray area though -- it's easy to say that the money in my bank is my property, even where it is in the care and custody of a third party, so by that argument, Gorsuch's property argument gives me more privacy protections for non-warranted searches to my banking data, but on the other hand, it's not clear that my Google Map data is 'mine', since Google provides it as a service to me for free, and uses that data for other purposes.

perpetualpatzer 8y ago
>It's easy to say that the money in my bank is my property, even where it is in the care and custody of a third party, so by that argument, Gorsuch's property argument gives me more privacy protections for non-warranted searches to my banking data I didn't understand him to be quite saying that. I understood him to be saying, "information about oneself is property. The government may not take your property without cause even someone else is holding it for you. Ergo, they cannot take the information here." As you note--there's a debate that would need to be had whether this is your information that you've given them, or their information that they've created about you and the analogy breaks down a bit for me where that isn't perfectly clear. Roberts seemed during oral arguments like he might have been trying on the information-is-property argument, "This [data] is not simply created by the company, though. It's a joint venture with the individual carrying the phone. That person helps the company create the record by being there and sending out the pings or whatever." That he writes against it here suggests he either didn't like where it led, or possibly couldn't get a majority to sign on to an approach that would uproot Katz when neither party was asking for it.
toadworrier 8y ago
> it's not clear that my Google Map data is 'mine' Yep, definitately not clear. But that's why it's a good for courts to start thinking about such things so that principles can emerge out of real-world cases. My guess is that data-ownership is mostly bunk ("information wants to be free"). But privacy advocates who think in those terms are on to something and "ownership" is just the nearest model we can think of. Over time we can evolve a clearer idea of of what that something is.