New York's Highest Court Raises a Red Flag Over Pervasive Location Tracking

Posted on June 11, 2009 by Philip Gordon

Private employers are increasingly implementing location-tracking devices — Global Positioning Systems (GPS) and Radio Frequency Identification (RFID) — to manage their workforces. These devices, for example, permit insurance companies to confirm that adjusters who may never come to the home office are, in fact, adjusting; help delivery companies identify the most efficient routes for their drivers; and allow hospitals to find nurses in an emergency. Employees, however, often shirk at the notion that their employer is tracking their every move.

The New York Court of Appeals, New York State’s highest court, recently issued an opinion in the case captioned, People v. Weaver, reflecting that court’s fundamental discomfort with pervasive and surreptitious location tracking by law enforcement. In that case, a police investigator, who did not have a warrant, secretly placed a location-tracking device on the defendant’s van. For 65 days, the police tracked the van’s movements, unbeknownst to the driver. Prosecutors ultimately used the location information to obtain the defendant’s conviction for crimes related to two burglaries.

The court’s majority emphasized that location-tracking technology is fundamentally different from other forms of surveillance: “any person or object, such as a car, may be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions. Constant relentless tracking of anything is now . . . entirely practicable.” The court reached a high note in expressing its concern over tracking technology’s impact on personal privacy:

The whole of a person's progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods . . . . Disclosed in the data retrieved from the transmitting unit . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations -- political, religious, amicable and amorous, to name only a few -- and of the pattern of our professional and avocational pursuits.

Ultimately, the court ruled that the warrantless use of the location-tracking device in Weaver was an unreasonable search in violation of New York State’s equivalent to the Fourth Amendment to the United States Constitution.

While the court’s decision addressed location tracking by law enforcement, the case is significant for private employers. An employee arguably could rely upon the New York decision to allege a common law claim for intrusion upon seclusion when an employer engages in surreptitious and pervasive location tracking. To reduce the risk of such a claim and to maintain good employee relations, employers should consider taking the following steps:

  • Avoid surreptitious location tracking
  • Provide employees with detailed, written notice of location tracking
  • Have employees acknowledge receipt of the notice
  • Avoid 24/7 location tracking
  • Limit tracking, when technically feasible, to business hours

 
Tags: , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

Is "Microchipping" Employees Ever A Viable Option?

Posted on October 3, 2007 by Philip Gordon

The idea of mandatory “microchipping” — the practice of employers requiring employees to have a small computer chip inserted beneath the skin — triggers a high score on virtually any cringe meter.  According to a 2007 study conducted jointly by Littler Mendelson and the Ponemon Institute (“Workplace Survey on the Privacy Age Gap”) more than 90% of respondents, regardless of age, responded that mandatory microchipping by their employer would constitute a privacy violation. 

Mirroring this sentiment, in early September, the California Legislature sent to Governor Schwarzenegger for signature a bill which would prohibit any person from requiring, coercing or compelling “any other individual to undergo the subcutaneous implanting of an identification device.” [UPDATE:  Governor Schwarzenneger signed the bill into law].  An “identification device” is defined as one capable of transmitting personal information by radio frequency (RFID) or other means. 

The only surprise about this bill is that California — the state most protective of individual privacy — is not the first to ban mandatory microchipping legislatively.  North Dakota and Wisconsin grabbed that honor, passing prohibitions on mandatory microchipping in April and May 2006, respectively.  Legislatures in seventeen other states — including Georgia, Michigan and New Jersey — are considering similar laws. 

From the employer’s perspective, these bills are, in a sense, irrelevant.  After all, what employer would dare risk the employee and public relations disaster of forcing employees to accept a microchip?

The more challenging question for employers is when, if ever, should an employer offer microchipping as part of a purely voluntary program.  Before answering that question, it is important to understand that the chip itself contains no personal information.  Instead, the chip contains an encrypted identification number which is linked to a database, such as medical records stored at a hospital or for a health care provider.  A signal emitted by the device transmits the number which then is used to access information corresponding to the person in whom the chip has been implanted.

Employees who might consider, and benefit from, voluntary implantation include:

  • Employees with a medical condition, such as epilepsy or diabetes, that could render them unconscious and in need of emergency medical attention;
  • Employees who are at a heightened risk of significant memory loss, such as those with Alzheimer’s disease, who might wander off-site;
  • Employees, such as commercial pilots, miners and oil rig workers, at a heightened risk of a serious injury that could render them unconscious;
  • Employees who need access to highly secured areas of a facility (albeit only as a voluntary alternative to some other form of identification; and
  • Employees who travel to parts of the world where there is a high risk of being kidnapped and who prefer not to carry badges that reveal corporate affiliation.

Employers and employees may be surprised that there actually are some potentially beneficial and sensible uses of microchipping.  Microchipping highlights the need for  employers and employees to get past the initial, knee-jerk reaction against workplace technologies that can be invasive of privacy, such as Global Position Systems (GPS) and camera phones.  Rather, employers should focus on implementing such technology within the framework of policies and procedures that minimize or eliminate unnecessary intrusions while reaping the technology’s benefits.

There is one caveat with microchipping:  On September 11, 2007, The New York Times wrote about an Associated Press report suggesting that “VeriChip [the maker of the implantable microchip] and federal regulators had ignored or overlooked animal studies raising questions about whether the chip or the process of injecting it might cause cancer in dogs and laboratory rodents.”  Both VeriChip and the Food and Drug Administration denied this report, stating that “there were no controlled scientific studies linking the chips to cancer in dogs or cats and that lab rodents were more prone than humans or other animals to developing tumors from all types of injections.”  An FDA spokeswoman added, “At this time there appears to be no credible cause for concern.”
Tags: , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link