Associated Press reports:
A midlevel New York court on Wednesday upheld the state use of a tracking device on an employee’s private car to investigate whether he was skipping work and falsifying time sheets.
The Appellate Division panel split over whether that secret Global Positioning System tracking in 2008 violated Michael Cunningham’s constitutional privacy rights.
The three-judge majority said the state Labor Department, where Cunningham was director of staff and organizational development for 20 years, had reasonable grounds to start the GPS tracking because Cunningham was disciplined previously for false time records and officials suspected it was continuing. They also concluded that using the device for a month, in an investigation conducted by the Office of Inspector General, was reasonable.
“A search conducted by a public employer investigating work-related misconduct of one of its employees is judged by the standard of reasonableness under all the circumstances, both as to the inception and scope of the intrusion,” Justice John Lahtinen wrote. The labor department “clearly had a responsibility to curtail the suspected ongoing abuse of work time not only to preserve its integrity, but also to protect taxpayers’ monies.”
Lahtinen noted that traditional methods like tailing Cunningham failed, and he was suspected of using his personal car during working hours for some of the suspected abuse. “He could hardly have been surprised to be under investigation,” he wrote.
Justices Robert Rose and John Egan Jr. agreed.
Two judges dissented, saying the GPS use was warranted at first, but tracking the family car for a month was too broad and intrusive to be reasonable.
Read more on WSJ. It’s interesting that one aspect of the dissent was the length of the surveillance. A similar concern was raised in U.S. v. Jones, a case argued before the U.S. Supreme Court this month. A decision on that case is not expected until later next year.
One of the other key aspects of this case is that placing a GPS device on an employee’s personal car resulted in surveillance of family members, 24 hours per day. What privacy rights do they have to be free from such surveillance? If the U.S. DOJ is to be believed, the government can put a GPS on any car at any time without a warrant, but what about a state agency that is investigating a civil matter?
It will be interesting to see what happens with this case on appeal.
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