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During oral arguments earlier this month in a case questioning the limits of police officers’ warrantless use of GPS technology to track suspects’ movements, the justices of the U.S. Supreme Court expressed serious concerns about the privacy implications of using such technology.
The justices’ broad questions have not only criminal attorneys taking note, but also civil attorneys in areas such as employment law, where the use of electronic surveillance by employers could also spur privacy claims.
At oral arguments in U.S. v. Jones, the justices considered whether the police’s warrantless use of a GPS device to track the defendant’s travels to a suspected drug house violated the Fourth Amendment’s prohibition on unreasonable searches.
Although the court could avoid deciding the parameters of drivers’ privacy rights altogether by ruling that the attachment of the GPS device was not a search, the justices seemed disinclined to take that approach.
“It seems to me that when that device is installed against the will of the owner of the car on the car, that is unquestionably a trespass … thereby rendering the owner of the car not secure in his effects … against an unreasonable search and seizure,” Justice Antonin Scalia observed. “It is attached to the car against his will, and it is a search because what it obtains is the location of that car from there forward.”
On the privacy issue, several justices raised concerns about Orwellian, high-tech government surveillance techniques.
“If you win,” Justice Stephen Breyer said to the government’s attorney, “you suddenly produce what sounds like ‘1984’ [according to the defendant’s brief]. I understand they have an interest in perhaps dramatizing that. But it still sounds like it.”
Chief Justice John G. Roberts also expressed concern about the use of technological devices that collect much more information about people than older, less advanced technologies the court has considered in the past.
“The technology is very different and you get a lot more information from the GPS surveillance than you do from following [older devices],” Chief Justice Roberts said.
The impact of the ruling could reach beyond the criminal context.
Employment lawyers are keeping a close watch on the case because of its implications for workplace surveillance practices. The court declined to define workers’ privacy expectations in employer-provided mobile devices in the 2010 case City of Ontario v. Quon. But a ruling in Jones could provide some guidance on the limits of employers’ ability to keep tabs on their employees electronically.
The answer to the privacy question could impact employers nationwide. While most courts have held that workers have little expectation of privacy in work-issued computers or other electronic devices supplied by their employers, the use of GPS and other tracking devices — for example, to monitor the movements of delivery drivers — could present a different question. This is especially true if the surveillance continues once the worker is off the clock.
On the other hand, employers may have legitimate business reasons for tracking employees during off hours, such as a suspicion that the worker is abusing the use of leave under the Family and Medical Leave Act by claiming to have a bad back, but spending time on the golf course.
Employers’ best bet, no matter what the court rules, is to make workers sign consent forms spelling out the types of surveillance they will be subject to.
