In United States v. Jones, the Supreme Court unanimously decided that FBI agents violated the Fourth Amendment when they attached a Global-Positioning-System (GPS) tracking device to a suspected drug dealer’s Jeep Cherokee and monitored the vehicle’s movements on public streets for 28 days without obtaining a warrant to do so. Justice Scalia wrote the Court’s opinion, with four justices joining the opinion – Chief Justice Roberts and Justices Anthony Kennedy, Sonia Sotomayor, and Clarence Thomas.
Sotomayor’s concurring opinion is worth noting for its detailed analysis of the chilling effect on associational and expressive freedoms that government monitoring via technology, like GPS surveillance, will have if left unchecked. She wrote:
“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…The Government can store such records and efficiently mine them for information for years into the future…And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility.’ “
Justice Alito, who also concurred in the majority opinion, argued for warrants based on the “reasonable expectation of privacy” standard, instead of the common law trespass test applied by Scalia. Alito, clearly troubled by the Court’s reliance on the law of trespass, points out that technology today allows for easy electronic monitoring, without any need to come into physical contact with the subject being tracked. He expresses concern over the “increased convenience” of new technology at the “expense of privacy,” and suggests that these “new intrusions on privacy” may motivate Congress to enact legislation addressing these “new intrusions” as it did with wiretapping. Sotomayor clearly agrees, but whether Congress will act obviously remains to be seen.
So, what does U.S. v. Jones mean for employers?
Private employers generally are not subject to the Fourth Amendment’s prohibition against unreasonable search and seizure. However, it is certainly foreseeable that employees of private employers could cite to this case in support of claims that GPS monitoring, or any sort of electronic monitoring for that matter, during non-working hours violated their “reasonable expectation of privacy.” The question of whether this decision might influence courts as technology becomes more powerful, remains to be seen.
As such, it is imperative for employers, especially those who provide smart phones and company vehicles containing GPS monitoring devices to their employees, to adopt policies notifying their employees of the company’s right to monitor their actions while using Company owned property. These policies should also contain language notifying employees about the GPS monitoring capabilities of the Company-issued property and that they should not have an expectation of privacy while using the same.
In light of the contours of a “reasonable expectation of privacy” analysis and concerns over common law claims of intrusion upon one’s seclusion, employers should also avoid monitoring during non-work hours. In addition, where the data received from location tracking reveals details of an employee’s personal life, employers should not review it or be prepared to show that they have a legitimate business justification for looking at this type of information.
Finally, private employers in states like California may have more to be concerned about where constitutional privacy protections apply to the private sector. A number of states also have laws prohibiting the installation of a tracking device without the consent of the vehicle’s owner or lessor.