By Richard B. Newman

On June 27, 2011, the United States Supreme Court granted certiorari in a geolocation privacy matter that will almost certainly have implications for companies that incorporate location-based tracking features into their products or that monitor the locations of their employees or assets. 

The operative issue is whether the government violated the defendant’s Fourth Amendment rights by installing a global positioning system tracking device on his vehicle without a warrant and without his consent. 

Reading signals
The appeal was from a decision of the District of Columbia 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 device on the outside of a suspect’s car in order to track his location. 
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 the location of a drug lab did not violate the Fourth Amendment. 

In doing so, the court pointed out the short-term limited use which the government made of the signals from the beeper and distinguished it from the type of long-term 24-hour surveillance afforded by a GPS device. 

Interestingly, the Seventh and Ninth Circuits have recently considered these precise issues, coming the conclusion that no warrant is required to place a GPS device on the outside of a suspect’s car. 

While numerous states and lower federal courts have also confronted this issue, with largely inconsistent holdings, the decision of the DC Circuit has effectively created a federal circuit split. 

It is probable that this is the primary reason that the U.S. Supreme Court has decided to entertain the issue. 

Supremely prepared
While a prospective decision will certainly be limited to a delineation of permissible governmental location tracking, it may also potentially create private causes of action based upon a violation of one’s constitutional reasonable expectation of privacy and a theory of intrusion upon seclusion. 

Should the Supreme Court justices agree with the DC Circuit and rule that individuals indeed possess a Constitutional expectation of privacy against being tracked unknowingly by a GPS device, the theory could conceivably be used to support private lawsuits against companies that incorporate location tracking into their products. 

Given the present uncertainly regarding these issues, businesses collecting geolocation information from their customers should take a proactive approach now to avoid potential costly litigation. 

The nature of location data collection should be clearly and conspicuously disclosed while providing consumers with a mechanism to opt-out of such tracking.

Richard B. Newman is managing partner at Hinch Newman LLP, San Diego. Reach him at [email protected].