Overview of GPS-Tracking Laws
The global positioning system (GPS) is a satellite-based navigation system that provides users with accurate location and time information. While the system is fairly easy to use, as there are no subscription fees or setup charges, it is essential that users familiarize themselves with the legal framework governing tracking technology in their home states. The legal aspect comes into play when the user invests in a GPS tracking device with the intention of placing it on a motor vehicle to track or monitor someone. As GPS technology advances , the act of monitoring a licensed driver now has a heavier legal cost. Law enforcement teams use GPS devices to collect evidence against suspects in criminal prosecutions. Lawmakers are also expanding the scope of GPS usage within both the public and private sectors. Familiarizing yourself with the laws governing both tracking technology and the legal restrictions on its use is essential before deciding to use GPS tracking for personal, business, or law enforcement purposes. There is variety in state GPS tracking laws and public opinion regarding the morality of gathering information through these devices is steadily growing.
Federal GPS-Tracking Laws
In addition to state laws, federal laws also apply to GPS tracking and must be carefully considered, especially in the employment context. The Electronic Communications Privacy Act (ECPA), for example, was enacted by Congress in 1986 in an effort to address widespread concerns about digital communications and the ability in some cases to track a person’s location through conversations sent electronically. Major amendments were added to the ECPA with the passage of the USA Patriot Act and, more recently, the Stored Communications Act. The ECPA is made up of three key parts: (1) Title I, the Wiretap Act, which prohibits real-time interception of any oral, wire or electronic communication and, at times, requires that a party obtain an order prohibiting such interception; (2) Title II, the Stored Wire Electronic Communications Act, which prohibits the disclosure of the contents of electronic communications under certain circumstances; and (3) Title III, the Electronic Communications Transactional Records Act, which places restrictions on the ability of government entities to obtain subscriber information from providers of electronic communications services. Given increasing concerns about privacy, it is possible that the ECPA will change and places more restrictions on the use of GPS tracking. While no specific changes have been proposed, companies that track employees with GPS devices should keep an eye on developments.
State-Specific GPS-Tracking Laws
Evolving law and case precedent have created a patchwork of GPS tracking rules. For instance, certain states impose requirements for a warrant or other legal process when law enforcement uses GPS tracking devices for criminal investigations. Other states bar the use of GPS trackers in any domestic matters, while some take a more permissive approach, allowing the trackers to be used without legal process, even under some circumstances involving children. Not surprisingly, there is a wide range of approaches across the states, and those approaches are ever-changing.
As has been the case in recent years with many aspects of law, new technology has outpaced its regulation. GPS tracking is just one area in which the law is yet to catch up. In the absence of definitive laws, court cases and opinions try to fill the gap, but those are not uniform either. Finally, there is no single legal authority that can provide a definite answer on the issues, thus further complicating the compliance landscape.
States with Specific GPS-Tracking Laws
Several states have enacted or proposed laws that are far stricter than the federal rules, requiring state-by-state consultation of your attorney. Here are some notable examples.
California
Some types of tracking are illegal, especially when done for commercial purposes. California has been ahead of many states in protecting the rights of its citizens, and tracking activities related to commercial objectives might not be permitted without the consent of the tracked person. In a state with such a large economy and population (and lots of tracking abuse) it would be impossible to track all or even most owners of that state’s 2.4 million square miles. Therefore it is not uncommon for private investigations in California to be even more expensive than on the East Coast. Other aspects of the law to keep in mind include rules that tracking companies should not use "counter-tracking" devices as the Feds do and a general prohibition against private eyes installing GPS trackers without the knowledge of the tracked person. But there are exceptions for commercial purposes in the literature, online and from the government. Having an attorney with IP experience is critical in this case.
Texas
The provisions that relate to GPS tracking devices and trespassing are both criminal and civil in Texas. In the case of trespassing, it can either be a Class A misdemeanor or a Class B misdemeanor, and in the case of a criminal offense the punishments are very finely defined, regardless of the location of the tracking device. You can be penalized with a fine of up to $10,000 (second-degree felony) plus or minus additional imprisonment or probation. But as with many of the regulations that are on the books, they are subject to interpretation, and the language has sometimes been intentionally vague. When in doubt, consult your attorney before proceeding.
New York
One of the major grey areas in New York State’s expansive laws and regulations is with regard to attorney-client privilege. Also, it’s important to understand that there are two separate types of statutes in New York State, the General Obligations Law and the Security Alarm Installer Registration Act, and the consequences of violating one will be different from the other. In addition, many privately owned residential apartment buildings have their own additional "code of ethics" that can be used against those who track in violation of their house rules.
Effects of State Laws on Employers and Employees
Employers should carefully analyze the applicable state and local laws. Employers who have employees in multiple jurisdictions may be faced with conflicting requirements, which can lead to non-compliance. For example, while the GPS tracking laws in states such as New York and Massachusetts are similar, Maine imposes a higher burden by requiring both written notice and written consent if the tracking "reasonably may . . . result in the disclosure or use of . . . redundant, inappropriate or otherwise unlawful purposes."
Employers and employees can face criminal legal liability. Employers and employees can also bring civil lawsuits against each other for damages related to the unauthorized disclosure of tracking information . Employees have the right to bring a civil lawsuit against employers if the employer has violated any law, regulation, or policy regarding personal information management. Maine, Maryland, Montana, Hawaii, and Connecticut have laws that protect employees from any "adverse employment action" to the extent that a violation is made.
In some states (e.g., California, Florida, Iowa, Kansas, Maine, and Texas), there are strong laws that protect employee privacy against involuntary GPS tracking, but there may be no recourse for employees when they are tracked voluntarily by employers.
In other states, there are stronger protections against voluntary GPS tracking, but there is no protection against involuntary tracking. This is particularly the case for Arkansas, Connecticut, Delaware, Indiana, Kentucky, Montana, Nevada, and Oregon.
Legal Implications of GPS-Tracking Law Violations
While GPS tracking can aid law enforcement in a wide range of situations, its use can become invasive and counterproductive if misused. For example, a detective from the Las Cruces (N.M.) police department was found guilty of felony tampering with evidence after he placed a GPS tracking device on the vehicle of his girlfriend’s ex-husband without a warrant. Authorities said the detective had been assigned to investigate a robbery that also involved the ex-husband and that "the use of the device was not connected to the investigation." In Florida, the law states that it’s a first-degree misdemeanor to obtain information by trespass or by any other means where a person does not have permission to be and places a subsequent recording device to intercept oral communication. The law outlines all associated penalties for those who are caught and convicted of illegally using a tracking device. For example, in Alabama, an illegal act, such as placing a tracking device on a spouse’s car would result in a fine of $10,000 in addition to a possible year in jail. In Colorado, if a person "places, installs, conceals, or leaves a tracking device on..another persons property without that person’s express consent" it’s a class 2 misdemeanor which will set you back $750 in fees plus whatever other fees may be associated with the discovery and removal of the tracking device.
Best Compliance Practices for GPS-Tracking Laws
In addition to knowledge of particular GPS stalking laws, compliance with those laws will require a best practices approach. Consistent open and honest communication with the targeted individual and with the other partner-in-interest is essential. In fact, in many places, some notification to the individual subject to the tracking may be required by an applicable statute or regulation.
Applicants for GPS tracking permissions must confirm and document their understanding of an applicable statute or regulation. What is contemplated must be within the bounds of the law. Each jurisdiction has its own set of tracking laws and regulations. Interpretation may require an objective third-party review. It is important to have a good faith understanding of what tracking will be done, who will be involved, where tracking will occur, when tracking will occur and why tracking is reasonable under the circumstances . It is also important to require that any tracking that occurs, particularly any tracking that intrudes on personal privacy, be narrowly circumscribed and no greater in scope and intensity than necessary.
Anyone applying to track another person (or his or her vehicle) should be aware that some states will impose a duty of care with respect to maintaining the GPS tracker. The statute may impose criminal liability for the exercise of reasonable care with respect to certain types of real property and for certain kinds of conduct, such as knowingly allowing the GPS tracker to be damaged or destroyed. Subject to any exception established by law, developers are advised to monitor state law for changes in GPS tracking requirements and any corrective action that may become necessary to avoid liability.