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Will GPS monitoring decision impact employers?

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Will GPS monitoring decision impact employers?

WASHINGTON—The Supreme Court's ruling that long-term police GPS monitoring of a suspected drug dealer constituted trespassing is expected to be influential as lower courts tackle such privacy issues in the workplace.

The high court's unanimous ruling last week in United States vs. Antoine Jones also indicates how the court is likely to rule when it confronts privacy in the workplace head-on, they say.

Employers that decide to use GPS devices on their fleet vehicles or smartphones to track workers' activities could avoid potential problems by telling workers of the tracking (see story, page 20).

Meanwhile, New York's highest court will consider the use of GPS tracking in a case that involves the workplace (see story, page 20).

According to last week's ruling by the U.S. Supreme Court, authorities obtained a search warrant in 2005 permitting installation of GPS on a vehicle registered to Mr. Jones' wife. The warrant authorized the GPS installation in the District of Columbia within 10 days; instead, agents installed it 11 days later in Maryland and tracked the vehicle for 28 days. Mr. Jones and others were subsequently indicted for drug trafficking.

A lower court suppressed GPS data obtained while the vehicle was parked at Mr. Jones' residence, but admitted the rest, stating Mr. Jones had no reasonable expectation of privacy. The District of Columbia Circuit Court of Appeals reversed that ruling, holding that the GPS tracking violated his Fourth Amendment right against unreasonable searches and seizures.

Five Supreme Court justices, led by Justice Antonin Scalia, raised the trespassing issue in ruling in Mr. Jones' favor.

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“It is important to be clear about what occurred in this case: The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a "search' within the meaning of the Fourth Amendment when it was adopted,” Justice Scalia wrote.

“The present case does not require us to answer” the question of whether achieving the same result through electronic means without an accompanying trespass is an unconstitutional invasion of privacy, he wrote in the ruling joined by Justices John G. Roberts Jr., Anthony M. Kennedy, Clarence Thomas and Sonya Sotomayor.

However, a concurring opinion raising the issue of privacy was written by Justice Samuel A. Alito Jr., who was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan. “I would analyze the question presented in this case by asking whether respondents' reasonable expectations of privacy were violated by the longtime monitoring of the movements of the vehicle he drove,” Justice Alito wrote.

While relatively short-term monitoring “accords with expectations of privacy,” longer-term monitoring “impinges on expectations of privacy,” the court said.

Although she joined the majority, Justice Sotomayor wrote a separate concurring opinion that also addressed privacy.

“The government usurped Jones' property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and undoubtedly entitled to Fourth Amendment protection,” Justice Sotomayor wrote.

While many observers say the ruling's Fourth Amendment focus has no direct relevance to the workplace, Randy Gainer, a partner with law firm Davis Wright Tremaine L.L.P. in Seattle, said there are “tort claims in most states for invasion of privacy, and the majority opinion and the concurrences could be used by an employee who was tracked by a private employer to buttress his or her claim that the employer had violated the employee's privacy rights by installing a tracking device on a private vehicle.”

Scott L. Vernick, a partner with Fox Rothschild L.L.P. in Philadelphia, said the decision raises the issue of the extent to which the private sector can use digital devices, such as smartphones, to track employees' whereabouts.

“You certainly have nine judges who are determined to preserve privacy, and I could see some application to the workplace—particularly if you did not tell the employees that that's what you were doing,” Mr. Vernick said.

“Other courts will start looking at this and taking guidance from it,” said Michael Overly, a partner with Foley & Lardner L.L.P. in Los Angeles.

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Pointing to the opinions of Justices Alito and Sotomayor, Philip C. Gordon, a shareholder with Littler Mendelson P.C. in Denver, said, “The judges in the state court system and in the federal court system below the Supreme Court will look to this opinion and understand that the majority of Supreme Court justices expressly recognize the potential invasiveness of long-term GPS tracking.”

“The courts are going to look at this when they are interpreting invasion of privacy claims by employees,” said Mark B. Wiletsky, of counsel at Holland & Hart L.L.P. in Boulder, Colo. “And I think that employees and their attorneys will likely try to expand this case beyond the Fourth Amendment law enforcement context to make a claim for invasion of privacy, or some other claim, if they feel that their clients' rights have been violated.”

Gerald L. Maatman Jr., a partner with Seyfarth Shaw L.L.P. in Chicago, said the ruling's impact will depend on whether the employer is public or private. Public sector employees “have additional protections, unlike private company employees, in that constitutional protections can apply,” he said.

“I suspect you're going to see use of this precedent in a public sector workplace arena in terms of the limits that might be imposed on public employers in using location information in the context of workplace investigations or personnel decisions based on location information,” Mr. Maatman said.

With respect to private employers, the ruling will become a “tool used by plaintiff lawyers” to allege abuse or illegitimate use of location information as an invasion of privacy. That would raise issues such as whether there was a valid need to use it, whether it tracked locations during working hours vs. nonworking hours, and how long the monitoring continued, he said.

Eventually, said Tyler G. Newby, of counsel at Fenwick & West L.L.P. in San Francisco and a former federal prosecutor in the area of computer crime, the Supreme Court will take a case that deals with “what they expressly declined to consider here, which is, "What are the Fourth Amendment and privacy implications of tracking a person's movement using GPS technology or other types of technology when there's not a trespass?'”

Mr. Newby said, “That's the case that's eventually going to come before the Supreme Court, and until that happens, there's a fair amount of uncertainty as to the law of privacy in this area.”

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