On Monday, January 23, 2012, the US Supreme Court ruled that law enforcement violated the Fourth Amendment by attaching a GPS tracking device to a suspect’s car in connection with a drug investigation. We provide a brief summary of the decision followed by our views on the implications of the decision for businesses and employers.
The Court unanimously ruled that law enforcement was required to obtain a search warrant before placing the GPS tracking device on the suspect’s car. Although the Justices were unanimous in upholding the lower court decision, the Justices differed on certain points, resulting in three separate opinions.
Based on traditional principles of trespass and the Fourth Amendment, the Court held “Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search undoubtedly occurred.” Because a search occurred, the police were required to first obtain a search warrant. The police did not obtain a search warrant, meaning the GPS tracking evidence would likely be inadmissible in the event of a retrial.
The government had argued that a warrant was not required because the information gathered was the location of a vehicle on public streets. The Justices disagreed, finding the surreptitious placement of the device on the undercarriage of the vehicle constituted a search requiring a warrant. The majority decision of five Justices turned on the physical placement of the tracking device on the vehicle.
Four Justices were willing to go further to protect privacy, asserting in a concurring opinion that not only was the attachment of the device problematic, but also the lengthy monitoring, in this case four weeks. Justice Alito’s concurring opinion argued that the suspect’s privacy expectations were violated by long-term monitoring of the vehicle’s movements; “[I]f long-term monitoring can be accomplished without committing a technical trespass — suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car — the Court’s theory would provide no protection.”
Thus, from this decision we know that law enforcement must obtain a search warrant before furtively placing a GPS tracking device on a vehicle. What remains unanswered, however, is the extent to which future Court decisions will be similarly limited to the placement of hidden tracking devices, or whether the Court will adopt a broader view based on the length and extent of the tracking.
The Implications for Business
Even harder to predict is the implications this decision will have on businesses, employers and employees outside of the criminal context. At a minimum, the decision brightens the spotlight on the collection and use of geo-location tracking information. With the explosion of smart phones, tablets and other GPS-enabled personal devices, collection of geo-location information is rampant and widespread. Retailers, advertisers and other companies view this as valuable information, and the practice will no doubt continue to increase.
The Jones decision reinforces the notion that tracking information, even when the tracking occurs in public places, is subject to Constitutional protection under the Fourth Amendment. While the majority decision is based on the physical placement of the device, it nonetheless rejected the Government’s argument that a search did not occur because the information gathered related to public movement.
Justice Alito, Ginsberg, Breyer and Kagan telegraphed that privacy protection may go further. These Justices were concerned by the length of the monitoring, in this case four weeks. Thus, in a broader privacy context, this supports the position of privacy advocates that the volume of tracking data collected, here over 2,000 pages of data in four weeks, is relevant to consumers’ and employees’ expectations of privacy.
The decision, therefore, potentially has broader implications for privacy in the business context. Similar to Fourth Amendment principles, individual privacy protections in a consumer and employee setting are often based on the subject’s expectation of privacy. If collecting tracking data over an extended period of time raises implications regarding the subject’s expectation of privacy, then businesses and employers must be cautious, ensuring compliance with privacy and the Federal Trade Commission’s principles of notice, consent and choice.
Similarly, the opinions demonstrate the heightened concern over collection of personal information in a digital world. The ease and often invisibility of such collection is apparently a concern to all nine Justices; and this issue will undoubtedly be raised by privacy advocates, as well as state and federal legislators, in the continuing debates over privacy legislation.
Businesses should exercise caution when collecting, using and sharing geo-location information. Such practices should be as transparent as possible to consumers and employees. Policies and other disclosures should clearly notify individuals about the collection of their geo-location information, and individuals should be provided with easy access and choice with respect to the use of that information. Finally, companies should continue to closely monitor state and federal privacy legislative efforts with respect to the protection of geo-location and other personal information.