What Employers Should Know about the Supreme Court’s Decision Concerning GPS Privacy Rights

In United States v. Jones, the United States Supreme Court addressed the question of whether the government violated the Fourth Amendment’s prohibition against unreasonable searches and seizures when it attached a Global Positioning System (GPS) tracking device on a vehicle registered to a criminal defendant’s wife and monitored the vehicle’s movements for four weeks.  All nine Supreme Court justices agreed that the government’s use of the GPS device without a valid warrant violated the defendant’s Fourth Amendment rights, but they disagreed as to why.

The Trespass Analysis:  Justices Scalia, Roberts, Kennedy, Thomas, and Sotomayor determined that the installation of a GPS device on the defendant’s vehicle constituted a physical “search” under the Fourth Amendment.  Those justices held that it was unnecessary to analyze whether the defendant had a “reasonable expectation of privacy” with respect to the underbody of the vehicle where the GPS device was attached or with respect to the public roads where the defendant drove the vehicle.  They reasoned that the physical intrusion of attaching the GPS device to the defendant’s vehicle was a trespass sufficient to invoke the Fourth Amendment’s protections.  Therefore, attaching the GPS device to the vehicle without a valid warrant violated the Fourth Amendment.

The Expectation-of-Privacy Analysis:  Justices Alito, Ginsburg, Breyer, and Kagan determined that the government’s use of the GPS device violated the defendant’s Fourth Amendment rights because it violated a reasonable expectation of privacy.  While the justices stated that “relatively short-term monitoring of a person’s movements on public streets” may not violate privacy expectations, longer periods of monitoring likely impinge on reasonable privacy expectations.  Therefore, the government’s use of GPS to monitor the defendant’s movements for four weeks without a valid warrant violated the defendant’s Fourth Amendment Rights.

Takeaway for Employers:  Private employers are not subject to the Fourth Amendment’s prohibition against unreasonable searches and seizures.  However, employees of private employers could potentially cite the United States v. Jones decision in support of an invasion-of-privacy claim to argue that GPS monitoring violated their reasonable privacy expectations.  To prevent this type of claim, employers who monitor employees with GPS (whether via cell phones, company vehicles, or other GPS devices) should adopt policies to notify those employees about the GPS monitoring and that they should not have an expectation of privacy while using company property with GPS capabilities.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on January 25, 2012, in Privacy Rights, Technology and the Workplace and tagged . Bookmark the permalink. Leave a comment.

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