New York Addresses Warrantless GPS Tracking
Posted: July 19, 2013
Last month, the New York Court of Appeals ruled that it may be permissible for the state to use GPS to monitor state employees during working hours without obtaining a warrant. While the court found that the degree of the state’s monitoring was excessive in the case it examined, the decision may pave the way for more warrantless GPS tracking of public employees in certain circumstances, and it raises questions about the expectation of privacy for all employees.
The case, Cunningham v. New York State Department of Labor, concerned an investigation of a longtime employee who was the Department of Labor’s Director of Staff and Organizational Development. He allegedly had a series of unauthorized absences from duty and then allegedly falsified records to conceal those absences. After the employee eluded a Department of Labor investigator who followed his car, the Department of Labor referred the investigation to the State Inspector General. As part of its investigation, the Inspector General authorized the attaching of a GPS device to the employee’s car. The car was owned by the employee and was not state property. Relying on evidence obtained from the GPS device and other sources, the Commissioner of Labor terminated the employee. The employee then challenged his termination, in a proceeding that made its way to the highest court in New York.
Remarkably, the Court of Appeals found that the placement of the GPS device was within the “workplace” exception to the to warrant requirement recognized by the U.S. Supreme Court’s 1987 decision in O’Connor v. Ortega, which allows warrantless searches to investigate public employees’ violations of workplace rules. The court reasoned that a search designed to find out the location of the automobile the public employee was using when the employee was, or claimed to be, working, was within the scope of the exception, even if the vehicle was owned by the employee, and the search tracked movements of personal activities. The location of the car during working hours was not more private, the court said, than something displayed on an employee’s desk, and therefore the employee should not have any greater expectation of privacy. Addressing concerns that the same reasoning could be used to justify the placement of tracking devices on an individual’s clothes or accessories, the court concluded, without explanation, that “People have a greater expectation of privacy in the location of their bodies than the location of their cars.”
Despite the general holding that tracking a private car by attaching a GPS device to it was within the bounds of Ortega, the court nonetheless determined that the scope of the search in this particular case was not reasonable and was “excessively intrusive.” The state had tracked the car 24 hours a day, seven days a week, even when the employee was on vacation in Massachusetts. The court noted that it was possible for the state to limit its tracking, as shown by the fact that the state was able to remove and replace the GPS device on multiple occasions. The court concluded that “[w]here an employer conducts a GPS search without making a reasonable effort to avoid tracking an employee outside of business hours, the search as a whole must be considered unreasonable,” and it suppressed all of the GPS evidence.
While the court was unanimous in agreeing on the result, it was divided on whether to apply the Ortega workplace exception. The concurring opinion focused on what it found to be the intrusive nature of GPS tracking, and stated that public employees should have “some” expectation of privacy in their movements during the workday. The concurring opinion also observed that GPS tracking is highly susceptible to abuse, and that the fact that the car was the employee’s personal car should have distinguished the case from the Supreme Court’s 2010 decision in City of Ontario v. Quon, which applied the workplace exception to allow a warrantless search of text messages sent and received on an employer-owned pager.
The direct impact of Cunningham is of course limited to government investigations of public employees and does not have a direct impact on investigations of private employees, where Fourth Amendment issues are not a concern. Cunningham, however may signal that some courts are becoming more open to employer monitoring of an employee’s personal devices (rather than company owned devices) as long as the employee has notice that the employer may conduct such monitoring.