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Posted in Consumer Privacy

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.