[author: David Munkittrick]
Earlier this year in United States v. Jones, the United State Supreme Court addressed the privacy implications of Global Positioning Systems (“GPS”), holding that placing a GPS tracking device on a suspect’s car was a “search” under the Fourth Amendment. Though a growing number of employers are using GPS systems to track employee activity on the job, the effect of the Supreme Court’s decision in the private sector remains unclear.
Jones highlights two distinct privacy concerns potentially created by GPS devices. First, Justice Scalia, in the majority opinion, focused on the trespass implicated by placing a GPS device in an individual’s vehicle. Though the holding only applies to government action, courts may find this element of privacy relevant if an employer installs GPS devices in employees’ personal vehicles.
However, just before the Jones decision, a New York court held that installing a GPS device in a public employee’s personal vehicle to investigate misconduct during working hours was reasonable, and lawful, under the circumstances. Similarly, a New Jersey state court held last year that a private investigator did not unlawfully invade the plaintiff’s privacy by placing a GPS device on the plaintiff’s personal car. The New Jersey court reasoned there was no invasion of privacy because the plaintiff did not allege travel to any secluded or private areas where there might be an expectation of privacy.
The concurring opinions in Jones discussed a second aspect of privacy implicated by GPS devices. Justice Sotomayor and Justice Alito, joined by a majority of the Court, focused on reasonable expectations of privacy. Despite an earlier holding that there is no reasonable expectation of privacy in one’s location while traveling on public roads, the concurring opinions argued GPS tracking for an extended period of time (four weeks in this case) went beyond reasonable expectations of privacy under the Fourth Amendment. Justice Sotomayor noted long-term GPS monitoring could reveal a wide range of personal information, including familial, political, professional, religious, and sexual associations.
California and Texas have statutes addressing GPS tracking devices. In those states, placing a GPS device on a vehicle is unlawful without the owner’s consent. Of course, these statutes pose no bar to installing GPS devices in employer-owned vehicles. Still, because there is little statutory law addressing the use of GPS monitoring in the workplace, judicial determinations of privacy expectations continue to define the boundaries for tracking employee activity with GPS devices.
To date, few courts have addressed the privacy implications of GPS monitoring in the workplace. Those that have generally permit the practice. In addition to the two state decisions noted above, a Missouri federal court held in 2005 that use of a GPS device on a company vehicle did not constitute an invasion of privacy. Still, the Supreme Court decision in Jones highlights privacy implications of GPS monitoring, so renewed scrutiny of GPS tracking can be expected. Watch this blog for updates as this area of the law develops.