The technological capabilities of smartphones, such as accessing the internet in a matter of seconds, speaking with multiple people simultaneously, and downloading numerous applications, have increased rapidly since their inception. These advancements while fascinating, have made it difficult for legislation to keep up to date which may cause drastic problems in the future. For example, smartphones have the ability to track an individual’s movements. The tracking of an individual’s movements can create the potential for claims such as violation of privacy and trespassing. Thus, the concern for laws to be up to date and regulate the tracking of an individual’s movement is imperative. Furthermore, there is a growing concern to protect an individual from corporations and employers who are able to misuse their personal information for their benefit. This article speaks to the privacy rights offered to individuals and employees and the possible consequences to an individual’s privacy rights if these laws are not up to date with modern technology.
Privacy rights are a right provided by the Fourth and Fifth Amendment. The Fifth Amendment states, “no [person, shall] be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation”. However, this right has limitations. For example, an individual loses their right to privacy in public spaces, if there’s not an expectation of privacy, and if consent is given. Furthermore, privacy rights are not always clearly written in legislation and with the rapid growing functions of technology, if these laws are not updated, individuals will be deprived of their privacy rights. For example, Minnesota enacted a statute which prohibits the use of a mobile tracking device without a court order, “unless consent is obtained from the owner of the object to which the mobile tracking device is attached”. From the statute, employers were faced with the problem of what constituted “attached”. Employers argued that when an employee downloads a mobile tracking app on their company-issued cell phone and agree to the terms of the app, the employee has consented to the attachment of the tracking technology and has agreed to be tracked. However, employees contend that such “attachment” does not apply to their phones and that the requirement to install a GPS tracking app on an employee’s phone is unconstitutional. Despite there being no final ruling on this case, it illustrates the importance of laws taking into account the growing functions and capabilities of new technology.
However, some states have begun to enact statutes which specifically incorporate new rising functions and capabilities of technologies and which allow individuals certain privacy rights. For example, California has passed the California Consumer Privacy Act of 2018 (hereafter “CCPA”), to allow consumers to exercise control of their personal information and to enact certain safeguards against the misuse of this information from corporations who acquire their personal information through smartphones and the internet. Through this bill, a consumer will be permitted to request that a business disclose the specific pieces of their personal information of which they have acquired and to disclose the company’s intent to use that information. Moreover, the individuals will be able to access this information and know whether their personal information is sold or shared and with whom. This act incorporates both the smart phone’s capability to send personal information to corporations of consumers who download their applications and to afford them certain privileges and rights.
Privacy laws surrounding the tracking of an individual are clear, however, these laws need to be updated to consider the tracking of an employee by an employer. According to the National Law Review, the tracking of an individual by GPS or any other tracking technology is prohibited, unless by court order. However, this answer is not so clear if an individual voluntarily installs the technology of which they are tracked through. Additionally, it is also not clear if an employer tracks their employee’s movements while the employee is operating a company vehicle or if an employer tracks an employee’s movement by the employee’s company-issued smartphone. Moreover, employers argue the tracking of an employee is necessary for efficiency purposes, to monitor their employee’s actions and ensure they are staying on task. Employers assert tracking an employee’s movements does not deprive the individual of their constitutional right to privacy but instead, fosters an efficient work environment, ensures compliance with safety regulations, and helps companies verify time records and company policies.
Contrarily, employees argue that their privacy rights are being infringed upon by an employer requiring them to install a GPS tracking app on their company-issued smartphone. Employees are concerned that if they refuse to download the app, or even delete the app once downloaded, they may be subjected to discipline or termination. For example, in Arias v. Intermex Wire Transfer, 15-cv-01101 (E.D. CA, 2015), a woman sued her old employer after she was terminated for uninstalling a GPS tracking app called “Xora”. The app was installed on a company-issued cellphone and was able to track her whereabouts continuously. This case was settled outside of court, but, illustrates the implications of privacy rights afforded to an individual and how modern laws and regulations do not account for the growing functions of technology.
Another issue of contention is whether an employer is allowed to attach GPS tracking technology to a company owned vehicle. According to the court in Tubbs v. Wynne Transp. Serves, an employer can attach a GPS tracking device on a company vehicle. Tubbs v. Wynne Transp. Servs., No. H-06-0360, 2007 U.S. Dist. LEXIS 28920 (S.D. Tex. Apr. 19, 2007). An employer attaching GPS tracking technology to a company owned vehicle does not deprive an individual of their privacy rights stated in the Fifth Amendment. Id. This is because, individuals are entitled to basic property rights to their own property, but not the property owned by another. However, the attachment may violate state tort law if it tracks the employee without their knowledge or consent. Furthermore, the employee may have a claim for invasion of privacy. To prevent these implications, it is best practice to obtain consent before the attachment of any GPS tracking technology. For example, in 2014, Illinois enacted a statute which made the use of GPS tracking technology to monitor the location of a vehicle without the vehicle owner’s consent a criminal misdemeanor, unless the tracking was done by law enforcement.
Despite, the freedom for an employer to attach GPS technology to a corporate-owned vehicle driven by an employee, an employer is not allowed to attach GPS technology or other technology to track an employee’s movements on the employee’s owned vehicle. This is because the employer is not the owner of the vehicle. Thus, they are unable to exercise dominion over the property of another. However, the law is unclear on whether an employer is allowed to attach GPS tracking technology on an employee-owned vehicle that is used for company business. The law needs to be reviewed to keep up with the times and prevent future litigation. Without this clarity, employers have the ability to require employees to have GPS tracking technology on their vehicles which may be a violation of their privacy rights.
Privacy is a constitutional right afforded to individuals and the mere fact that an individual enters the workplace does not mean they forfeit this right. However, an individual will be unable to raise a claim of their constitutional right being violated unless the law accounts for the new advancements in technologies. Thus, to prevent any abuse from corporations or employers, privacy laws must be reviewed and revised to incorporate certain safeguards to individuals.