Supreme Court’s decision: Privacy and GPS

What the U.S. Supreme Court’s decision about privacy and GPS monitoring means to Connecticut employers.

By Hugh W. Cuthbertson

On January 23, 2012, the U.S. Supreme Court issued an opinion in United States v. Jones, deciding that the Government’s attachment of a GPS tracking device to an individual’s car and subsequent use of the GPS to monitor the vehicle’s movements on public streets for 4 weeks constituted a search within the meaning of the Fourth Amendment. Although a prior warrant authorizing the use of the GPS in this fashion had been obtained, it had expired before the GPS’s installation, thus rendering the evidence obtained by use of the device inadmissible.

Even though the Fourth Amendment’s prohibition against unreasonable searches and seizures does not apply to private employers, a question raised is the impact, if any, the Jones decision could have in adding to the number of privacy protections for employees already existing in the workplace or in workplace related activities.

As things presently stand, a number of privacy protections already exist under Connecticut law that apply to private employers. See, e.g., C.G.S. § 31-40w (breastfeeding in the workplace); C.G.S. § 31-51w (drug testing: observation prohibited; privacy of results); C.G.S. §§ 31-128c and 31-128f (employer to maintain employee’s medical records separately from personnel file and may not disclose contents without employee’s consent unless certain criteria are met); C.G.S. § 31-128f (contents of employee personnel file may be disclosed without employee consent only under certain circumstances); C.G.S. § 42-470 (restriction on posting, display, transmission and use of social security numbers); C.G.S. § 42-471 (duty to safeguard personal information, including social security numbers, from third party misuse; duty to create and publish privacy protection policy; creation of civil penalty); C.G.S. § 31-51i (employers may not inquire about or discriminate on account of erased criminal records); C.G.S. § 31-48b (prohibiting employers from operating any electronic surveillance device in areas, such as rest rooms, locker rooms or employee lounges or from intentionally overhearing or recording any conversation regarding employment contract negotiations without consent of all parties to the conversation).

Two additional areas of protection closer to the point are 1) Connecticut’s Electronic Monitoring Act (C.G.S. § 31-48d), and 2) the Connecticut Supreme Court’s decision in Goodrich v. Waterbury Republican-American, Inc. (1982), which recognized a common law cause of action for invasion of privacy.

But first, a brief recap of the Jones decision. Five of the justices found that the attachment of the GPS to the vehicle constituted a physical search under the Fourth Amendment, thus requiring the issuance of a warrant. The remaining four justices agreed with the result, but disagreed that there was anything wrong with attaching the GPS to the car. Instead, they ruled that use of the GPS violated the criminal defendant’s “reasonable expectation of privacy,” a secondary test for determining whether a Fourth Amendment violation has occurred. In a separate concurring opinion, one justice agreed with both points of view – i.e., that both the attachment of the GPS and its subsequent use constituted a violation of the Fourth Amendment.

Now for consideration of the potential impact of the Jones decision on Connecticut’s Electronic Monitoring Act and Connecticut’s common law right to privacy.

The Connecticut Electronic Monitoring Act: This Act requires, with certain exceptions, employers to notify their employees in writing of any electronic monitoring the employer conducts in the workplace. The Connecticut Department of Labor is charged with enforcing this statute and it can impose fines ranging from $500 to $3,000 per offense. However, because the Act defines electronic monitoring as “the collection of information on an employer’s premises,” one lower court in Connecticut has held that an employer’s off-site GPS monitoring of its own vehicles is not prohibited by the Act.[1] Nevertheless, in order to avoid coverage issues, the safer course of action would be for employers simply to provide the required statutory notice, even absent a change in the Act’s definition of electronic monitoring.

The Right To Privacy: One of the ways that the common law right to privacy recognized by the Connecticut Supreme Court may be violated is by the “unreasonable intrusion upon the seclusion of another.” Although GPS devices did not exist at the time this right was recognized in Connecticut thirty years ago, the Connecticut Appellate Court has had occasion more recently to deal with GPS devices in the context of privacy claims.

In 2005, in a case entitled Turner v. American Car Rental, Inc., the Appellate Court held that whether GPS monitoring constitutes an invasion of privacy is a factual determination to be made by a jury. As the court in that case explained, one of the factors for a jury to consider in making this determination is the extent to which the operator of a vehicle has a reasonable expectation of privacy while driving on a public highway. Although there are cases standing for the proposition that there is no expectation of privacy in travelling on the public roads, the impact of the U.S. Supreme Court’s decision in Jones may be seen in the two concurring opinions, which recognize that under an expectation-of-privacy test GPS monitoring, now available either in cars or in new “smart phones,” may in fact impinge on an individual’s reasonable expectation of privacy, contrary to what other courts have held in the past.

Accordingly, employers who wish to use such devices to monitor the whereabouts of their employees while driving company-owned vehicles or while using company-owned cell phones may wish to reduce their exposure to invasion-of-privacy claims and to potential coverage under the Electronic Monitoring Act by providing clear written notice to their employees that each company vehicle or cell phone is equipped with a GPS device that may be used to monitor or gather information about the employee’s activities (such as his or her whereabouts, movements and, if driving a vehicle, its speed).

Any employer with questions about its electronic monitoring activities, the notice required to avoid liability or the Supreme Court’s opinion in the Jonescase may wish to consult with its attorney. Employers without an attorney should feel free to contact this firm.