GPS Tracking and the Law: An Update

Any time a new technology is unveiled, it can be used in unforeseen ways—often in ways that inventors of the technology did not envision.

When GPS tracking technology had its start in the 1970s, it was primarily designed for military use. In the 1990s when, like the Internet, it was opened to use by the public at large, people primarily sought to use it as a mapping tool—allowing them to get from Point A to Point B the quickest way or by avoiding interstate highways or tolls, and so on.

But at least since 2008 several controversies have erupted over a different use of GPS tracking technology—specifically whether it’s legal for authorities to use the technology to track someone without his knowledge. As the following situations show, the answer is, “That depends.”

Cunningham v. New York State Department of Labor

Back in 2008 the New York State Department of Labor (NYSDOL) had the State Investigator’s Office place a GPS tracking device on a vehicle belonging to an employee named Michael Cunningham. Why? They were suspicious that Cunningham was claiming to be at work at times when he actually was not there.

The device remained on Cunningham’s car for approximately two months, unbeknownst to Cunningham. The device revealed not only where Cunningham was between 8 AM and 5 PM each weekday, but also where he went in the evenings and on weekends. Unfortunately for Cunningham, it also revealed that he was being dishonest about his whereabouts during the workday. As a result of the information yielded from the GPS tracking device, Cunningham was fired.

Cunningham took NYSDOL to court. In Cunningham v. New York State Department of Labor the court ruled in Cunningham’s favor. The reason the court found in his favor, however, was because it determined it to be intrusive for an employer to obtain information via GPS that gives information about the employee’s life during hours he’s not required to be at work.

People v. Weaver

So one result of the Cunningham case was that it was legal for government agencies to track an employee’s whereabouts with GPS technology even if the employee is not aware he’s being tracked—as long as that tracking does not reveal information about the employee’s non-working hours.

That raises other questions, of course. If government agencies can do this to employees, can employers in the private sector use GPS tracking to monitor their employees during work hours without informing employees? What about police departments, which are clearly “government agencies”—can they use GPS to track private citizens who are suspected of criminal activity, albeit without citizens’ knowledge?

That question was at least partially answered in May 2009 when in People v. Weaver the New York State Court of Appeals ruled that police departments must have a warrant before monitoring suspects without their knowledge.

But another question follows: does that hold true in all cases? What about cases where there is no time to obtain a warrant . . . such as when officers are involved in a high-speed chase with a suspect who’s fleeing a crime scene?

StarChase in Arizona and Texas

In 2010 a company in the US released the StarChase Pursuit Management System—a truly creative way to cut down on high-speed chases and the danger to officers and bystanders that such chases can cause. This technology is now being used in some areas in Texas and Arizona. How does it work?

StarChase is a magnetic “bullet” equipped with GPS tracking technology that’s attached to the front grill of a police cruiser. When officers find themselves in a high-speed chase, they can fire the “bullet” at the fleeing suspect’s car via a compressed-air launcher. Once the “bullet” adheres magnetically to the suspect’s vehicle, police can back off from pursuit while still maintaining knowledge of the suspect’s location.

But does this use violate the New York State of Appeals’ ruling in People v. Weaver? What about another case, US v. Jones? In that case the Supreme Court determined law officers cannot legally attach a GPS tracking device to a vehicle belonging to a suspect and then track the vehicle for a prolonged period of time (in the case in question, a four-week period).

In short, using the StarChase device during a high-speed chase probably does not violate a suspect’s rights, say most observers, including Jay Stanley of the American Civil Liberties Union (ACLU). Because the device is deployed during a time of high risk and immediate need and is not intended for prolonged use, its use in this context is generally seen as a good thing.

That’s not to say it couldn’t be misused some way. But based on legal precedents already set, at this time the limited use of devices such as StarChase may have a bright future in helping apprehend suspects and save lives of innocent bystanders who may be killed by a high-speed chase.

GPS Tracking and the Law: An Update