Supreme Court Watch Justices raise privacy concerns in GPS case Case offers opportunity to better define what an individual's zone of privacy is

By Kimberly Atkins

The Daily Record Newswire

BOSTON -- 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.

"I think the Court, by taking this case, is showing that they are concerned with keeping up with the changing technologies," said Robert H. Humphrey, a Tiverton, R.I. defense attorney and former prosecutor. "Technology is on the cutting edge, but the Court takes a longer view of it" when it comes to privacy rights.

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.

"Although this is a criminal case, for the Supreme Court this is an opportunity to better define what an individual's zone of privacy is," said Russell D. Cawyer, a partner in the labor and employment group of Kelly Hart & Hallman's Fort Worth, Texas office. "That could have an impact on employers."

Like '1984'

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]," Roberts said.

James G. Dimeas, a criminal defense attorney at The Legal Defenders in Chicago, said the justices' questions on the privacy issue demonstrate their concern about limits.

"I think the justices were saying, 'Hey, where does it end?'" Dimeas said. "Are you going to put GPS devices on everyone's car or track everyone's cell phones to follow everyone's movements? That's just like '1984.'"

Humphrey suggested that the government's argument that drivers have no expectation of privacy on public streets, and that GPS surveillance is no more intrusive than being tailed by a police car may not have traction given the information that can be collected by GPS devices, and the reasonable expectations most drivers have.

"We have a certain expectation of privacy once we get into our cars," he said. "Although we are in public, for many people cars are an extension of our home."

If the Court does rule that the warrantless use of a GPS device is not a search, Dimeas predicted that it will "open the door so wide that it will result in a flood of litigation," forcing appellate courts -- and perhaps the justices -- to establish just how far police can go.

"The Court is going to be asked over a time to define and redefine what [the police's] boundaries are," Dimeas said.

Employment implications

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 justices seem to be grappling with the same kind of issues a judge is going to grapple with in reviewing [such searches] in an employment context," said Jeff Nowak, chair of the labor and employment practice in the Chicago office of Franczek Radelet.

The Fourth Amendment issue in itself may not have a direct impact on employers -- some states, including Texas, do not provide a civil remedy for private employees for a state or federal constitutional violation, Cawyer noted.

But the answer to the privacy question could impact employers nationwide.

"They may very well flesh out what is the zone of privacy that people have," Cawyer said. "So that may give rise to Texas employees' ability to bring an invasion of privacy claim."

Nowak noted that employers have been using electronic devices to track employees' movements and activities for nearly a decade as courts have held that such monitoring is usually permissible when done for a legitimate business reason.

But 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.

"If you have the ability to track an individual 24 hours a day, that notion seems offensive to one's expectation of privacy," Nowak said.

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.

"The issue [is whether] employees, in their non-work time, have a legitimate expectation of privacy such that they can't be tracked 24 hours a day." Nowak said. "And that is where we very well could get some guidance from the Supreme Court in their ruling here."

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.

"These [problems] can be avoided with disclosure and consent," Cawyer said.

Published: Mon, Nov 28, 2011

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