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Thread: Justices Thomas and Gorsuch Just Hinted They Would End Privacy as We Know It

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    Justices Thomas and Gorsuch Just Hinted They Would End Privacy as We Know It

    Justices Thomas and Gorsuch Just Hinted They Would End Privacy as We Know It is written by a liberal whose argument hinges on precedent over originalism.

    This week, in the case of Byrd v. United States, the Supreme Court ruled unanimously that a person driving a rental car has the right to privacy—that is, not to have the car searched without probable cause—even if he’s not listed on the rental contract....

    But the short concurring opinion by Justice Thomas, which Justice Gorsuch joined, is a terrifying warning to anyone who cares about privacy in the age of digital surveillance.

    “I have serious doubts about the ‘reasonable expectation of privacy’ test,” Justice Thomas began....

    For more than half a century, the “reasonable expectation of privacy” has been a bedrock of Fourth Amendment law in the United States....

    To be sure, the words “reasonable expectation of privacy” do not appear in the Constitution, which is what irks “originalists” like Gorsuch and Thomas....

    But Justice Thomas’ alternative is far more problematic. Returning to the text of the Fourth Amendment, he writes, “The issue, then, is whether Byrd can prove that the rental car was his effect. That issue seems to turn on at least three threshold questions. First, what kind of property interest do individuals need before something can be considered “their... effec[t]” under the original meaning of the Fourth Amendment? Second, what body of law determines whether that property interest is present—modern state law, the common law of 1791, or something else? Third, is the unauthorized use of a rental car illegal or otherwise wrongful under the relevant law [and does it] affect the Fourth Amendment analysis?”

    This half century of judicial time travel would erase privacy rights as we know them today....

    Recall, privacy is a penumbral right.
    Edmund Burke: "In vain you tell me that Artificial Government is good, but that I fall out only with the Abuse. The Thing! the Thing itself is the Abuse!"

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