The New Jersey Supreme Court has required law enforcement officers to get a warrant to obtain tracking information from a cell phone. While the decision came in a criminal case, the reasoning is broad enough to cover other situations. The decision holds that individuals have a reasonable expectation of privacy in their cell phone location data under the state Constitution. State v. Earls, #A-53-11/068765, 2013 N.J. Lexis 735.
     During an investigation of a state employee, New York state investigators attached a global positioning system (GPS) device to his car, to look into suspicions that he was submitting false time reports. Based on the evidence gathered, he was fired. The highest court in New York ruled that the attachment of the device was a search not requiring a warrant and was within the workplace exception to the warrant requirement. At the same time, the search was not reasonable, as the employee's movements were tracked on evenings, weekends, and when he was on vacation, rendering it excessively intrusive. The employer failed to make a reasonable effort to avoid tracking the employees movements outside of business hours, rendering the entire search unreasonable. The evidence was ordered suppressed. Cunningham v. State Dep't of Labor, #123, 2013 N.Y. Lexis 1729.
     In a criminal prosecution for drug trafficking, a federal appeals court held that a warrant was not required under the Fourth Amendment for GPS cell phone tracking of a suspect's real-time physical location. The federal agents used data being sent by the GPS device in the defendant's pay-as-you-go cell phone. The defendant had no reasonable expectation of privacy in the GPS data since the agents were tracking a known number and he was voluntarily using it while traveling on public roads. The court also commented that no "extreme" comprehensive tracking was present in the immediate case. U.S.A. v. Skinner, #09-6497, 2012 U.S. App. Lexis 16920, 2012 Fed App. 262P (6th Cir.).
     The U.S. Supreme Court held that attaching a GPS device to a vehicle to track a criminal suspect constitutes a search under the Fourth Amendment. It upheld the ruling of a federal appeals court suppressing the evidence and overturning a conviction based on it, since the device was attached without a valid warrant authorizing it. The Court declined to consider the government's alternative argument that the attachment and use of the device was a reasonable search, because it was not raised in the courts below. U.S. v. Jones, #10-1259, 132 S.Ct. 945, 2012 U.S. Lexis 1063.
     Third Circuit concludes that probable cause may be needed to obtain stored mobile phone location data. In re Application of the USA - Electronic Communication Service, #08-4227, 2010 U.S. App. Lexis 18689 (3rd Cir.).
     D.C. Circuit concludes that a warrant is required to attach a GPS tracking device to monitor a suspect’s vehicle over a prolonged period. “Here the police used the GPS device ... to track [the suspect’s] movements 24 hours a day for 28 days ...” U.S. v. Maynard, #08-3030, 2010 U.S. App. Lexis 16467 (D.C. Cir.).
     Fire inspectors who were fired, after a GPS device revealed that they were not performing their official duties, lose their lawsuit against the city. Although state law prohibits an employer from electronically monitoring an employee's activities without prior notice given, the Connecticut Supreme Court held that the statute did not create a right of an employee to sue for damages. Gerardi v. City of Bridgeport, #SC 18318, 294 Conn. 461, 2010 Conn. Lexis 2.
     The use of a GPS tracking device for surveillance purposes requires a judicial warrant, supported by probable cause. Comm. v. Connolly, #SJC-10355, 2009 Mass. Lexis 642.
     Although a worker’s privacy interests in a shared office is far from absolute, the plaintiffs had a reasonable expectation that their employer would not install video equipment capable of monitoring and recording their activities without their knowledge or consent.” However, activation of the surveillance system “was narrowly tailored in place, time and scope, and was prompted by legitimate business concerns.” The plaintiffs were not at risk of being monitored or recorded during regular work hours and were never actually caught on camera or videotape. Hernandez v. Hillsides Inc., #S147552, 2009 Cal. Lexis 7804, 09 C.D.O.S. 9763.
     "Because we recognize the diminished expectation of privacy in a vehicle on a public roadway ... we cannot agree that the N.Y. Constitution precluded the warrantless placement of the GPS tracking device on [a] vehicle or retrieval of its data in connection with this ongoing police investigation." People v. Weaver, #101104, 2008 N.Y. App. Div. Lexis 4811 (3rd Dept.).
     Federal court dismisses privacy lawsuit filed by a federal employee, who claimed a back injury, and was videotaped by contract investigators while lifting heavy boxes into his pickup truck. Because the taping occurred while outdoors and adjacent to a public road, the employee lacked a reasonable expectation of privacy. Ryan v. Whitehurst, #SA-07-CA-723, 2008 U.S. Dist. Lexis 36432 (W.D. Tex.).
     Arbitrator, in a wrongful discharge appeal, concludes that employers have a management right to know who is on a worksite at any time, including the retrieval of electronic data from a card swipe entry authorization system. Mich. Educ. Assn. and United Staff Org., AAA Case #54-390-01224-05, 24 LA (BNA) 1322 (Daniel, 2007).
     A partially paralyzed employee was not terminated because of her disability. She was observed on a security camera making obscene gestures with her middle finger and covering up an on-premises security camera. Oates v. Chattanooga Pub. Co., 205 S.W.3d 418, 2006 Tenn. App. Lexis 190, 17 AD Cases (BNA) 1702; appeal denied, 2006 Tenn. Lexis 865. [N/R]
     NLRB finds that an employer could erect no trespassing signs giving notice that all activities were being monitored by video camera. Signs acknowledging the existence of video surveillance did not restrain, coerce, or interfere with the employee's rights to organize. Consolidated Biscuit and AFL-CIO, #8-CA-33402, 346 NLRB No. 101 (NLRB 2006). {N/R}
     Arbitrator sustains the termination of an employee who had asked for FMLA leave to care for his sick wife and was videotaped going off on a hunting trip. The taping occurred outdoors, negating any privacy issues. Interstate Brands Corp. and Int. Assn. of Machinists L-1363, 121 LA (BNA) 1580, FMCS #05 (1228)/0317-8 (Skulina, 2005). [2006 FP May]
     Management's placement of a concealed video-only camera in an unlocked computer room, which was shared by two schoolteachers, was not a privacy violation. Crist v. Alpine Union Sch. Dist., #D044775, 2005 Cal. App. Unpub. Lexis 8699 (2005). {N/R}
     Federal appeals court holds that an employer had a duty to bargain with the union over the installation of covert videocameras on the worksite, even if located in an elevator utility room. Reinstatement claims for terminated employees still pending resolution. Brewers L-6 v. NLRB, #04-1278, 414 F.3d 36, 2005 U.S. App. Lexis 13292, 177 LRRM (BNA) 2705 (D.C. Cir.). [2005 FP Oct]
     Oregon's Supreme Court holds that a public employer can secretly install a device that monitors and reports the location of a government vehicle used by a public employee. In this case, a firefighter ultimately was convicted of First Degree Arson. Appellant did not have a protected privacy interest in keeping her location and work-related activities concealed from her employer. "... neither the attachment of the transmitter to the truck nor the subsequent monitoring of that transmitter's location invaded a privacy interest of defendant ..." State v. Meredith, SC#S50173, 337 Ore. 299, 96 P.3d 342, 2004 Ore. Lexis 530 (2004). [2004 FP Nov]
     Federal appeals court vacates an injunction against a police dept. for conducting a surveillance of a captain and his lawyer, after the captain filed a discrimination complaint. Plaintiff failed to prove the dept. intended to continue the conduct. Anderson v. Davila, 125 F.3d 148 (3rd Cir. 1997). See also Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318 and Phil. Mtg. of Relig. Soc. of Friends v. Tate, 519 F.2d 1335 (1975). [1998 FP 151]
     Rhode Island legislature considers bill to make it illegal for an employer to keep an employee under surveillance while that employee is involved in labor relations activity. H.B. 8214; see ASIS Security Management, Oct. 1994. {N/R}
     Correction officer's "consent to search form" signed at time of hiring did not authorize her superiors to conduct a clandestine surveillance of the facility's restrooms. Speer v. Ohio Dept. of Reh. & Corr., 89 Ohio App.3d 276, 624 N.E.2d 251 (1993). [1994 FP 167-8]
     Prolonged, overt IAD surveillance of an innocent police officer did not violate her 4th, and 14th Amendment rights. Carrillo v. Ward, 770 F.Supp. 815 (S.D.N.Y. 1991). [1992 FP 5]
     Jury finds that K.C. police internal affairs investigators trespassed to get evidence that another officer was in violation of residency requirements. Nominal damages awarded. [Larry] Riebesell v. [Thomas] Walker [and John Cornell], Jackson Co., MO, Cir. Ct. (1990).
     Investigators who drove pass the plaintiff's home and followed her car engaged in lawful acts in public areas. Suit for intrusive surveillance dismissed. Figured v. Paralegal Technical Serv., 555 A.2d 663 (N.J.App. 1989); app. dismissed, 583 A.2d 350 (N.J. 1990). {N/R}
     Employer's surveillance of employee's home and checking of vehicle licenses from a public location was not an unreasonable invasion of privacy. Fayard v. Guardsmark Inc., 5 IER Cases (BNA) 516 (E.D. La. 1989).
     Investigators who sneaked around house and peeped in windows, eavesdropped on conversations and followed the plaintiff were civilly liable for an overly intrusive surveillance. Pinkerton N.D.A. v. Stevens, 132 S.E.2d 19 (Ga.App. 1963). {N/R}
     Cal. Supreme Ct. finds surveillance unreasonable, where investigators enticed the plaintiff to visit Disneyland and filmed her engaging in activities inconsistent with her alleged spinal injuries. She suffered a nervous and physical breakdown, requiring hospitalization, when she learned of the ruse. Unruh v. Truck Insur. Exch., 498 P.2d 1063 (Cal. 1972). {N/R}
     Filming of a worker's comp. claimant while he was outdoors, did not violate his privacy rights. McLain v. Boise Cascade, 271 Or. 549, 533 P.2d 343 (1975). {N/R}
     Illinois appellate court upholds right of investigators to persuade the plaintiff to engage in physical activities (in a swimming pool) that he had claimed he could not do because of his injuries. "The pictures speak for themselves." McGoorty v. Benhart, 305 Ill.App. 458, 27 N.E.2d 289 (1940). {N/R}
     Article: Use and Abuse of Surveillance Videos, 85 (1) Ill. Bar. J. 22-27 (Jan. 1997); {Our File Ref. #5638}. {N/R}
     Videotaping and C.C.T.V.: See topic "Telephone Monitoring, Video & Audio Taping" ; also see cases under "Disciplinary Searches" and "Privacy Rights."