L. Gordon Crovitz discusses the U.S. v. Jones GPS within the context of how technology has changed expectations of privacy. You can read his article on Wall Street Journal.
One particular statement in his article gave me pause. He writes:
The Fourth Amendment is a rare part of the Constitution that explicitly requires judges to adjust standards to reflect changes in society. What was unreasonable before may be reasonable now. Most adults in the U.S. have created Facebook accounts, which disclose more information than the most avid gossip-monger could have produced in the days before social media.
I don’t think that the Fourth Amendment really makes an explicit requirement as he suggests. The Fourth Amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In the last 50 years or so, we’ve followed a course that has lead not only to some thorny problems in light of new technology but that has eroded our privacy instead of protecting it.
Whether the Supreme Court will decide Jones narrowly or offer some vision for the future remains to be seen, but punting a constitutional issue to Congress is not really a great solution if most members of Congress stand ready, willing, and able to abrogate civil liberties and human rights in response to government dire warnings about terrorism and child pornography.