In this case, the Department suspected that that Michael Cunningham, a middle-level manager, was lying about his hours, and sought to track his work activity through surveillance. They called in the state inspector general, who “subpoenaed Cunningham’s E-ZPass records, conducted surveillance of non-work locations he was suspected of visiting during working hours and installed a GPS tracking system on his personal vehicle,” the New York Law Journal reports. Cunningham was fired based in part on information from the surveillance.
All seven New York Court of Appeals judges agreed with Cunningham that attaching a GPS to his car constituted a “search” under the Fourth Amendment. But the judges split bitterly on the question of whether a warrant was required, with the majority authorizing warrantless search under an exception to the requirement that has authorized employers to search the offices of their employees:
Petitioner here does not challenge the existence of a workplace exception to the warrant requirement, but argues that it is inapplicable because the object of the search in this case 6was petitioner’s personal car. Petitioner asks us to confine the exception to “the workplace itself, or… workplace-issued property that can be seen as an extension of the workplace.” We reject the suggestion, at least insofar as it would require a public employer to get a warrant for a search designed to find out the location of the automobile an employee is using when that employee is, or claims to be, working for the employer.
The three judges who disputed this point fume that this expansion of the workplace exception to contexts outside the actual workplace has now authorized employers to attach a GPS to an employee’s body or shoe. But the majority counters, “People have a greater expectation of privacy in the location of their bodies, and the clothing and accessories that accompany their bodies, than in the location of their cars.” In contrast to this rule, New York’s high court held in 2009 that a warrant is required to attach a GPS device to a criminal suspect’s car. And in 2010, the U.S. Supreme Court followed with a decision that invalidated warrantless GPS tracking of a criminal suspect.
Ultimately, the majority in this case also held that the scope of this particular search was too broad, because the GPS monitoring was continuous, even when Cunningham went on vacation for a week. But the ruling opens the door to many other unchecked instances of government surveillance that would not be permitted even for criminal suspects.