Posted on January 24, 2012 by Christopher Wolf

Supreme Court Decision in Warrantless GPS Tracking Case Offers Little Guidance in Consumer Privacy Context

Sometimes Fourth Amendment cases (which by definition arise in a governmental context) have implications for consumer privacy law since the "reasonable expectation of privacy" analysis can be employed in both areas.  Yesterday's U.S. Supreme Court 9-0 ruling in United States v. Jones that the warrantless attachment of a GPS device to a car for monitoring purposes violated the Fourth Amendment offers little guidance in the consumer privacy context as the majority of the Court did not rely on an "expectation of privacy" analysis.  The Court's main opinion, written by Justice Scalia, focused on narrow issue of whether there was a trespass when the GPS device was attached to the suspect's car.  Concluding that a trespass occurred, the majority of the Court found that a warrant was required under the Fourth Amendment.  Justice Scalia delivered the opinion of the Court in which Chief Justice Roberts, and Justices Kennedy, Thomas and Sotomayor joined.  Justice Sotomayor wrote her own concurring opinion and Justice Alito filed an opinion concurring in the judgment in which Justices Ginsburg, Breyer and Kagan joined.     

The main opinion of the Court chose not to address the issue of whether the suspect had a reasonable expectation of privacy not to be monitored, which was another available avenue of analysis.  Justice Alito said: "I would analyze the question presented in this case by asking whether respondent's reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove."  And Justice Sotomayor in her concurrence illustrated how far the Court could have gone to address the "reasonable expectation of privacy"  issue:

[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation­ of privacy in information voluntarily disclosed to third parties. (citation omitted). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Gov­ernment of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. Smith, 442 U. S., at 749 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”); see also Katz, 389 U. S., at 351–352 (“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constituttionally­ protected”).

Had the Court engaged in a "reasonable expectation of privacy" analysis, that could have had an impact on the use of tort and consumer protection law to pursue privacy claims.  One could imagine the FTC declaring "unfair" under Section 5 the kind of data use deemed to have violated a reasonable expectation of privacy under the Fourth Amendment.

 

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Posted on July 5, 2011 by Bret Cohen

Supreme Court Agrees to Hear Geolocation Privacy Case

Map on a mobile deviceThe Supreme Court on June 27 granted certiorari in a geolocation tracking case that could have implications for companies that incorporate location-tracking features into their products or that monitor the locations of their employees or assets. Specifically, the Court asked the parties to brief whether the government violated the defendant's Fourth Amendment rights by installing a Global Positioning System (GPS) tracking device on his vehicle without his warrant and without his consent.

The appeal was from a decision of the D.C. Circuit that held that under the Fourth Amendment, law enforcement is required to obtain a warrant supported by probable cause before placing a Global Positioning System (GPS) device on the outside of a suspect's car to track his location (the D.C. Circuit decision is captioned United States v. Maynard -- the Supreme Court case will be United States v. Jones). In doing so, the appeals court distinguished a 1983 Supreme Court case, United States v. Knotts, that held that the use of a beeper placed in an object given to a suspect to track his location to his drug lab did not violate the Fourth Amendment. Distinguishing the "limited use which the government made of the signals from this particular beeper" in Knotts from the "twenty-four hour surveillance" enabled by the GPS device in Maynard, the D.C. Circuit stated:

Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one's not visiting any of these places over the course of a month. The sequence of a person's movements can reveal still more; a single trip to a gynecologist's office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another's travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.

Notably, the Seventh and Ninth Circuits previously considered the exact same issue and came to the opposite conclusion that no warrant is required to place a GPS device on the outside of a suspect's car. Other states and lower federal courts have also grappled with the issue, with varying conclusions, but the D.C. Circuit decision created a federal circuit split that likely prompted the Supreme Court to take up the issue.

Though the decision will only define the contours of acceptable location tracking by the government, it also could inform private lawsuits based on a theory that the tracking of a person's location without their knowledge has been an intrusion upon that person's seclusion. A main factor in such lawsuits is whether there has been a violation of a person's "reasonable expectation of privacy," the question that will be squarely at issue before the Supreme Court. If the Supreme Court agrees with the D.C. Circuit and holds that individuals do have a legally cognizable expectation of privacy against being tracked unknowingly by GPS devices, the theory could be used to support private lawsuits against companies that incorporate location tracking into their products. Though there have been some suits to date resting on such a theory, they would be on much more solid ground with a definitive ruling from the Supreme Court on the issue.

Regardless of whether the decision is overturned, as a best practice (and to stave off such lawsuits), businesses collecting geolocation information from their consumers should at minimum prominently disclose to consumers the nature of location data collection and give them the option to opt out of such tracking. Employers who monitor their employees for asset-tracking or business-productivity purposes should also disclose the nature of this tracking to any employees who may be tracked.
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