Is GPS Tracking an Invasion of Privacy?

By: Robert T. Szyba

On November 8, 2011, the Supreme Court of the United States heard oral argument in United States v. Jones.[1] The case asks the Court to determine whether police, without a warrant, can affix a Global Positioning System (“GPS”) tracking device onto a suspect’s personal vehicle and track the suspect’s movements.[2] The U.S. Court of Appeals for the District of Columbia Circuit had previously decided that the government violated a suspect’s Fourth Amendment privacy interest when it used GPS technology to track the suspect continuously for a month.[3] The D.C. Circuit reasoned that, in the aggregate, the information gathered by the police over the course of a month of continual twenty-four hour tracking revealed much more about the suspect than just his travels, and thus due to the invasion into his privacy required a warrant under the Fourth Amendment.[4] The Supreme Court’s determination of the issues in this case are likely to provide guidance that may be relevant to how employers, both public and private, use GPS tracking of their employees.

As background, the GPS is a network of twenty-four solar-powered satellites that was originally put into orbit by the U.S. Department of Defense under the name of “NAVSTAR,” and continually orbits the Earth.[5] The satellites work by sending and receiving data from a transmitter on Earth.[6] The data is then processed to pinpoint the transmitter’s exact location, which then can be used to calculate the speed at which the transmitter may be travelling, its trip distance, the distance to its destination, as well as other information.[7] Since the data travels by line of sight, it can pass through clouds, glass and plastic, but not solid objects like buildings.[8] Thus, a receiver can be tracked twenty-four hours per day, so long as it remains in the line of sight of the system of satellites.

One use to which GPS has been put is the tracking of employees by an employer. For example, an employer may affix a GPS receiver to a vehicle.[9] The receiver may allow the employer to easily locate the vehicle if there is an emergency or if the vehicle is stolen. This approach may be useful for law enforcement agencies and businesses that employ fleets of vehicles, like taxi companies, shipping companies, and messenger services.

Alternately, an employer may issue a cellular telephone to an employee that contains a GPS receiver so that the employee’s movements may be tracked. The GPS receiver will allow the employer to monitor the movements of the employee, as long as the employee is carrying the cellular telephone, in real time. Sprint, for example, offers Workforce Locator to its business customers to track employees using their cellular telephones.[10] Sprint advertises that Workforce Locator allows supervisors to locate and track field employees, send travel directions to handsets, and communicate with employees.[11]

GPS tracking of employees has been challenged in courts by employees in both the private sector and the public sector, but the employers’ use of GPS tracking has been upheld.[12] In Alexandre v. New York City Taxi & Limousine Commission, New York taxi drivers objected to the use of GPS tracking devices on their cabs because the devices would also track their movements while they were off duty.[13] The Southern District of New York upheld the use of the GPS devices because there were adequate safeguards to protect personal information, the vehicle owners had a strong interest in tracking and protecting the vehicles, and the taxi drivers did not have a legitimate expectation of privacy in their movements on public roads.[14]

Employing a similar mode of analysis, the court in Elgin v. St. Louis Coca-Cola Bottling Co. found that the employer did not violate employees’ privacy interests when it used GPS tracking devices to affixed to employees’ vehicles.[15] The court reasoned that the employees had a very limited privacy interest because the vehicles were in public view and the GPS devices only tracked the movements of the vehicles.[16]

In light of this backdrop, the Supreme Court’s approach to the privacy considerations involved with GPS searches, albeit in the criminal context, may provide insight into the Court’s broader considerations of privacy. This may influence employers’ decisions whether to use GPS tracking, employers’ policies on informing their workforce, and whether to get written consent from employees to have their movements tracked. In sum, even though it may not be intended, the Supreme Court’s decision may have a direct impact on employers and employees, and their use of GPS technology in the workplace.

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[1] No. 10-1259; Supreme Court of the United States, http://www.supremecourt.gov (follow “Oral Arguments” hyperlink; then follow “Argument Calendars” hyperlink; then follow “Session Beginning October 31, 2011” html hyperlink) (last visited Nov. 1, 2011).

[2] Question Presented, U.S. v. Jones, (No. 10-1259), available at http://www.supremecourt.gov/qp/10-01259qp.pdf.

[3] U.S. v. Maynard, No. 08-3030, slip op. at 41 (D.C. Cir. 2010) (consolidated with U.S. v. Jones, No. 08-3034), cert. granted 131 S. Ct. 3064 (2011).

[4] See id. at 22, 29-31.

[5] GARMIN | What is GPS?, http://www8.garmin.com/aboutGPS/ (last visited Nov. 1, 2011).

[6] Id.

[7] Id.

[8] Id.

[9] Alexandre v. N.Y.C. Taxi & Limousine Comm’n, 2007 WL 2826952, *1-2 (S.D.N.Y. Sept. 28, 2007); Elgin v. St. Louis Coca-Cola Bottling Co., No. 4:05-cv-00970-DJS, at 2 (E.D. Mo. Nov. 14, 2005).

[10] Spring Workforce Locator, https://wl.nextel.com/WLLogin.jsp (last visited Nov. 1, 2011).

[11] Sprint, Workforce Locator Frequently Asked Questions, available at https://wl.nextel.com/guides/WorkforceLocatorFAQs.pdf (Feb. 4, 2011).

[12] See, e.g., Alexandre v. N.Y.C. Taxi & Limousine Comm’n, 2007 WL 2826952 (S.D.N.Y. Sept. 28, 2007); Elgin v. St. Louis Coca-Cola Bottling Co., No. 4:05-cv-00970-DJS (E.D. Mo. Nov. 14, 2005).

[13] Alexandre, 2007 WL 2826952, at *9-10.

[14] Id.

[15] Elgin, No. 4:05-cv-00970-DJS, at 6-8.

[16] Id.