The Supreme Court ruled unanimously yesterday that law enforcement must obtain a search warrant before placing a Global Positioning System (GPS) device on a suspect’s vehicle for purposes of tracking the vehicle’s location. The decision effectively overturned Antoine Jones’s life sentence for drug trafficking which was obtained, in part, through the use of location tracking information generated by a GPS device secretly placed by the FBI, without a search warrant, on Jones’s wife’s Jeep Grand Cherokee. Although the Court’s analysis focuses exclusively on the Fourth Amendment to the U.S. Constitution, which applies only to government actors, the decision has potentially important implications for private employers who are turning increasingly to location-tracking capabilities in vehicles, smartphones, and even laptops to track employees for management and investigative purposes.
To begin with, the Court’s decision highlights the dearth of legislation in the area. None of the Court’s three opinions — the lead opinion by Justice Scalia, a concurrence in that opinion by Justice Sotomayor, and an opinion by Justice Alito concurring in the result but not with Justice Scalia’s reasoning — cited a single federal or state law which regulates location tracking. California’s statute prohibiting the installation of a tracking device on a vehicle without the consent of the vehicle’s owner or lessor appears to be only one of two laws (the other is Texas) on the subject with a significant impact on private employers. In the wake of the Supreme Court’s decision, employers should expect legislative activity in the area.
The decision also is important for private employers because five justices — Justice Alito (joined in his concurrence by Justices Ginsberg, Breyer, and Kagan) as well as Justice Sotomayor — rejected the majority position in the state and federal judiciary on the privacy of location data. Under that view, location tracking does not infringe any privacy interest because the location of a vehicle or a person in a public place is fundamentally not private. This majority view effectively leaves private employees without any remedy for an employer’s use of location tracking because a common law invasion of privacy claim can be asserted only for the breach of a recognized privacy interest, and a statutory remedy for unauthorized location tracking is rarely available.
In rejecting the majority view, the five justices found a protected privacy interest in the patterns of private activity that can be derived from continuous location tracking notwithstanding the public nature of any particular data point. In the words of Justice Sotomayor, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” This view likely will have a significant influence on the thinking of trial and appellate court judges when confronted with an invasion of privacy claim based on an employer’s unauthorized tracking of an employee during non-working hours. An employer might be tempted to engage in such tracking, for example, to check for abuse of paid or unpaid leave or to investigate suspected moonlighting or a potentially fraudulent workers’ compensation claim.
Consequently, the most important lesson for private employers to draw from the Court’s decision is the importance of limiting location tracking to working hours when the pattern of location data should not reveal details of an employee’s private life, and if it does, the employer has a legitimate business reason for knowing what the employee is doing other than earning his or her compensation. The New York appellate decision that we covered in last week’s blog post illustrates the point. In that case, the majority did not take issue with the New York State Department of Labor’s 24/7 tracking of a high-level employee’s personal vehicle because the employer had a reasonable suspicion that the employee was not working when he said that he was. Under that reasoning, tracking an employee during working hours clearly would be permissible. On the other hand, the dissenting judges in the New York case found that tracking the employee during non-working hours was excessively intrusive, particularly because the GPS device reported the employee’s location during a week-long family vacation.
Employers should note that many GPS devices are either on at all times or off. In these circumstances, employers should develop controls that will limit access to location tracking information to employees’ scheduled working hours.
Finally, private employers should note Justice Scalia’s reliance on the notion of trespass in finding that the government’s warrantless installation of the GPS device on Jones’s wife’s Jeep violated the Fourth Amendment. Similarly, an employer’s unauthorized placement of a GPS device on an employee’s personal vehicle might support a claim based on a common law trespass theory. As a result, employers should be particularly cautious when using any form of location tracking not associated with company-owned equipment.