Charlie Kennedy, Senior Adjunct Fellow

Last week's unanimous decision of the Supreme Court in U.S. v. Jones (PDF) marks a major victory for constitutional rights.

While the justices split in their rationale, they agreed that protecting Americans' privacy in the digital age will require the Court to do a great deal more to untangle its confusing Fourth Amendment jurisprudence. That will likely take several more decisions -- and many years. Meanwhile, Congress should heed Justice Samuel Alito's call for legislation limiting government's ability to track us and snoop through our private communications.

First, the good news: Law enforcement can no longer plant GPS tracking devices on our vehicles without satisfying the Fourth Amendment. Even better: the majority of justices -- including conservative Justices Antonin Scalia, John Roberts, Anthony Kennedy, and Clarence Thomas, joined by Obama appointee Sonia Sotomayor -- agreed that Jones is only the beginning of the long-overdue inquiry into constitutional protections against location-based surveillance.

In a way, Jones was an easy case: By recognizing that law enforcement's physical trespass on private property to plant a surveillance device constituted a search, the Court ensured that the Fourth Amendment provides at least as much privacy protection today as when it was adopted. (Whether the Constitution required a probable cause warrant or would have been satisfied by some lesser standard, such as reasonable suspicion, the Jones majority did not decide.) Just as the Fourth Amendment would have been triggered if an 18th century constable hid himself in a suspect's stagecoach to track him or record his conversations, so too must modern police satisfy the Fourth Amendment before using satellites to track devices hidden on cars. (Whether the Constitution required a probable cause warrant or would have been satisfied by some lesser standard, such as reasonable suspicion, the Jones majority did not decide.) But what about purely electronic surveillance?

As four recent lawsuits show, the class actions bar has developed quick reflexes where possible Telephone Consumer Protection Act ("TCPA", 47 USC Sec. 227) violations are concerned. The new complaints were filed in April and May and appear to involve text messages sent in April. Besides demonstrating the efficiency of the plaintiffs' lawyers, the new actions reflect the legal perils of communicating with customers through text messaging or offering services that facilitate text messaging. They also underscore how poorly some of the TCPA's provisions serve the interests of consumers and legitimate businesses.