A New York appeals court ruled in favor of the state in its use of a GPS tracking device on a government employee’s private car. The tracking device was placed on former Labor Department director of staff and organizational development, Michael Cunningham, to investigate whether he was skipping work and falsifying time sheets.
In 2008, the Labor Department suspected that Cunningham, a 20 year veteran of the department, was “taking unauthorized absences from work as well as falsifying time records.” The department “had an investigator attempt to tail” Mr. Cunningham when he left his office during work hours, but “the effort was thwarted” when he realized he was being followed, the court wrote.
I am surprised that Mr. Cunningham didn’t clean up his act once he realized he was being tailed.
After the failed attempt to tail Cunningham, the state’s Office of the Inspector General decided to subpoena Cunningham’s E-Z Pass records and placed a GPS tracking device on his private vehicle in order to monitor his movements during work hours. The Labor Department fired Cunningham last year after retrieving the data from the GPS tracking device placed in his personal car, which showed that he had submitted false expense sheets and other travel records.
In a 3-2 decision, the appellate court ruled in favor for the state Labor Department, claiming that it 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 GPS tracking device on his personal car 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 taxpayer’s monies.”
There is much debate taking place regarding GPS Tracking and One’s Constitutional Rights. The Supreme court is currently addressing the role of GPS tracking technology in law enforcement. At issue is the FBI’s use of a GPS tracker secretly attached to the car of a suspected drug dealer.
The New York Court of Appeals ruled in 2009 that police cannot place GPS trackers on crime suspect’s vehicles without first getting a court warrant showing probable cause that the drivers were potentially involved in illegal activities.
New York Civil Liberties Union attorney Corey Stoughton, who argued Cunningham’s case, said last Wednesday Mr. Cunningham’s case will be appealed to New York’s top court. According to Stoughton, ”The big issue is they tracked his movements and that of his family 24 hours a day without any of them knowing about it… Three judges think that simply by virtue of working for the government people waive their rights to privacy in the movements of their personal car.”
Asked whether a private employer could similarly put a tracker on a worker’s car, Stoughton said it might be cause for an invasion-of-privacy tort, a civil complaint, but the constitution doesn’t prevent it, and the result might vary among states and jurisdictions. The constitutional limitations apply to the government, she said.
It seems to me that if police officers need a warrant to place a GPS device on a private car, shouldn’t the government be required to abide by the same laws and also need a warrant? Just because you are a government employee does not mean you aren’t also a private citizen.
However, the appellate court pointed out that it is not possible for the Inspector General’s office to get a warrant for the use of a GPS tracking device in such a case, because it isn’t a criminal matter. Instead, in this type of investigation by the state, searches are judged by whether they are “reasonable,” and according to the court, the Labor Department had reasonable cause to track Cunningham’s vehicle.
I don’t condone Mr. Cunningham’s actions, but it seems to me that since this was a non-criminal matter, the standards should be even higher in being able to place a GPS tracker on a person’s private car. Police usually also have “reasonable and probable cause” for tailing suspects, yet they must get a warrant to place a tracker on a citizen’s car. This sounds like a double standard here.
John Milgrim, spokesman for the state Inspector General’s office, said they will be reviewing the decision, and will continue to investigate state employee time abuse cases to protect taxpayers’ dollars.
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