If the consensus in Washington, DC, were to have government limited by the Constitution’s design and respect for individual rights, I would immediately go communist. That joke is about my contrarian habits, but mostly it’s a lament. I don’t expect to change my stripes any time soon. But there is a notable sense in which the government shares a position I took in a recent Supreme Court filing in Chatrie v. United States. The case is coming up for oral argument later this month.

Chatrie investigates “geofence warrants” in Fourth Amendment terms. Can a warrant permit the government access to information about everyone who was in a given area at a given time? Or is that an over-broad general warrant? The availability of location-based services—through Google, especially—makes the availability of comprehensive location data a new, important constitutional problem.

It might be resolved best at a higher level of abstraction. As I wrote recently, “The case is about a law enforcement technique that could grow dramatically: requiring online service providers to search customer data for information to use against those same customers.”

In my amicus brief, I pressed one theme I’ve seen in no other brief and another that I’m heartened to see in a few.

First, I argued that the Court should turn to textualism in Fourth Amendment cases. That rising (or dominant) mode of constitutional interpretation situates the Court where it belongs in our system of government: interpreting legal texts, not writing or revising them. That is the only mode of interpretation consistent with democratic theory. Textualism would help insulate the Court from partisan attacks. Keeping old interpretations around is not supported by stare decisis principles, I also argued.

On a second point, I’m glad to see bright lights such as leading industry group NetChoice and leading public-interest litigation firm Pacific Legal Foundation (for its client, X) making arguments consistent with textualism. They urge recognition of personal-information bailments.

Bailment is a property law concept, meaning that when someone else comes into possession of your things, the possessor has to take care of them, and they’re still yours. Bailment of personal information squares with people’s intuitions. The email you send using Gmail is still your email, not Google’s The text you send is your text, not Verizon’s.

Recognition of bailments would help people to establish if and when personal information stored with a service provider is “their” information—their papers and effects—or the papers of the service provider or abandoned. The question of ownership (or sufficient relation to a person) comes from the possessive pronoun their in the text.

In the Fourth Circuit Court of Appeals, Chatrie’s bailment argument was pretty solidly blanked. That court basically refused to recognize that the argument had been made. The Fourth now joins the First Circuit, in a case I brought, refusing to recognize words like property or contract as referring to a source of law.

Think on that for a moment. Property and contract, widely understood common law doctrines adopted by each of the United States at the founding, may not exist in Fourth Amendment cases, according to two federal circuit courts of appeals. We are in cloud-cuckoo land, or someplace worse: Europe. There, all law comes from statutes (give or take), and rights come from earthly, human “declarations.”

With the bailment argument getting no treatment in the court below, I concluded that it is not ready for the Supreme Court’s treatment either. I suggested remanding the case for lower courts to assess in terms of the Fourth Amendment’s text.

That is where the government and I somewhat align.

“BALDERDASH” was an option for the government in its brief. “BALDERDASH TO PROPERTY INTERESTS HERE, OR ‘BAILMENT.’ NOBODY KNOWS WHAT THAT IS.”

But the government’s brief is far more subtle. Adopting property principles, it says, “would push the Court far out ahead of legislatures and common-law courts, where complex issues—such as questions about ownership of personal data, contract law on the Internet, and the proper boundary lines of online privacy—are still being debated and developed.”

Tongue in cheek, I take this as an endorsement of my position! The government also believes that the case should be remanded for further consideration! More centered, I see it as accepting that there is room in our law for recognition of property rights in data and for personal-information bailments. The government shows care for the development of our law in its Chatrie argument. Good stuff.

I’m a contrarian, though. If we have much more accord, I will go radically in favor of all-source dragnet digital surveillance and an activist judiciary that rewrites the Constitution at whim.