Trace and Protect

GPS ruling doesn't effect private businesses, but caution is raised


The U.S. Supreme Court recently held, in U.S. vs. Jones, that the government’s use of a Global-Positioning Device (“GPS”) on an individual’s vehicle to track the vehicle’s movements constituted a search or seizure within the meaning of the Fourth Amendment to the United States Constitution. As a result, government officials must now obtain a search warrant before installing and monitoring a GPS or similar device on a vehicle.

Police suspected Jones, Washington, D.C., night club owner, of drug trafficking. As part of their investigation, police applied to the federal district court for a warrant authorizing the use of a GPS device on Jones’s vehicle. The court issued the warrant, giving police 10 days to install the GPS device while the vehicle was within the district. Police installed the device on the 11th day and while the vehicle was in Maryland. Based in part on the evidence obtained from the GPS device, the government indicted Jones on several counts, including conspiracy to sell narcotics. Before trial, Jones moved to exclude the evidence obtained from the GPS device, arguing that the government violated his Fourth Amendment rights by failing to act on a validly issued warrant. The trial court denied Jones’s motion with limited exceptions. The D.C. Circuit Court of Appeals reversed Jones’s conviction, however, holding that the evidence obtained from the warrantless use of the GPS device must be suppressed.

On appeal, the Supreme Court affirmed the D.C. Circuit Court’s decision. Justice Scalia wrote that the government’s physical intrusion in installing the GPS device under Jones’s vehicle violated his Fourth Amendment rights.

 

Case applies to state, not private parties

What impact will Jones have on the security industry? First, the Fourth Amendment only applies to state and local government officials, not private parties, so the case likely will have little direct impact. Jones, aside, however, significant potential risks exist for employers in the industry who use GPS to track their employees.

According to the National Labor Relations Board it is unlawful for an employer to install GPS units in the trucks of employees involved in union organizing. Certain states forbid employers from taking adverse action based on an employee’s legal after-work activities.

While no reported cases indicate awards for employees who have sued, this doesn’t mean employers haven’t settled such suits. And the moment an employee sues, the employer suffers a loss, since litigation is expensive and time consuming. At least one group, Princeton, N.J.-based National Workrights Institute, follows and catalogs the use of GPS by employers and has issued a 48-page white paper on the subject. This means employee rights groups monitor management’s use of GPS.

With all this in mind, if you still use GPS to track and monitor employees in your vehicles, consider these pointers:

  • Create and follow a written legally defensible policy governing GPS use. Explain to employees the reasons for monitoring, the extent to which the information could be used or disclosed, and to whom, and how the GPS will be used.
  • Obtain written authorization from an employee to use GPS to track the employee’s movements.
  • Limit access to GPS tracking information to those with a clear business “need to know” the information.
  • Carefully weigh the risk of GPS monitoring of off-duty activities against the “need to know” the information.

Most importantly, don’t forget to consult counsel–because in our industry, an ounce of protection is always worth a pound of cure or, when it comes to employee lawsuits, the inevitable pound of flesh.

 

Eric Pritchard is a partner in Kleinbard Bell & Brecker LLP, Philadelphia, a commercial law firm with a national practice in the electronic security and life safety industries. This column does not constitute legal advice; contact an attorney with specific questions.