ORIGINAL POST LINK:
No Direction Home: Will The Law Keep Pace
With Human Tracking Technology to Protect
Individual Privacy and Stop Geoslavery?
WILLIAM A. HERBERT
∗
ABSTRACT
Increasingly, public and private employers are utilizing human
tracking devices to monitor employee movement and conduct. Due
to the propensity of American labor law to give greater weight to
employer property interests over most employee privacy
expectations, there are currently few limitations on the use of
human tracking in employment. The scope and nature of current
legal principles regarding individual privacy are not sufficient to
respond to the rapid development and use of human tracking
technology. The academic use of the phrase “geoslavery” to
describe the abusive use of such technology underscores its power.
This article examines the use of such technology under current
federal and state law and suggests potential means for developing
greater legal protections against the abusive use of the technology
and the intrusion into personal privacy.
INTRODUCTION
The creation and increased use of various forms of human tracking
technology by governmental entities, private entities and individuals
raise profound policy and legal issues for our society. The scope of
constitutional, legislative or administrative limitations on the use of
such technology reflects on our society’s concepts of freedom,
individual autonomy, and protected privacy. As technology advances,
it expands the means for privacy intrusions, thereby limiting the
personal secrets and confidences that can be concealed. New
technological tools diminish the ability of individuals to maintain a
protected zone against physical, sensational, informational, and cyber
intrusions. The growing availability and use of human tracking
technology diminishes privacy interests that may precipitate societal
demands for increased legal protections.
How freedom and privacy are defined today has substantive
consequences in the legal measures that will be devised and applied to
∗
Senior Counsel, CSEA Local 1000 AFSCME, AFL-CIO, Albany, New York,
Herbert@cseainc.org. An earlier version of this article was presented at the 2006 Annual
Meeting of the American Association for the Advancement of Science in St. Louis. 410 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
protect those interests. As Columbia University historian Eric Foner
has shown, the concept and boundaries of freedom have changed over
the course of American history. Throughout our history, the definition
of freedom has been constantly redefined but has always been subject
to a balance between individual rights and property rights, as well as a
balance between the right of the individual and the power of the state.
1
Similar balances are applicable in how the contours of protected
individual privacy are defined.
In order to respond to the power of contemporary human tracking,
a new societal consensus needs to be reached regarding what
constitutes privacy and how it can be protected. At the same time, a
judgment must be reached regarding whether the legal standards
applicable to government surveillance under the Constitution should
be the same for non-governmental surveillance.
In contemporary American culture, some view the concept of
freedom as being manifested in consumerism, with the ubiquitous cell
phone as a primary symbol. It is doubtful that most cell phone users
are aware that the same technology that grants them this sense of
consumer freedom, also results in wireless companies receiving
automatic and continuous updates regarding their location.
2
Physical
possession of a cell phone renders an individual vulnerable to location
surveillance by government entities. When an employer distributes a
cell phone for use by an employee, the employee’s location becomes
subject to location monitoring by the employer on and off the job. A
third party who obtains physical access to another person’s cell phone
can easily transform it into a stalking device by registering it with an
internet location based service.
3
Mass recognition of this nonnegotiated trade of a cellular sense of freedom for perpetual
1
ERIC FONER, THE STORY OF AMERICAN FREEDOM (1998).
2
It is even less probable that cellular customers know or understand the Wireless
Communications and Public Safety Act of 1999 which places certain restrictions on the use
and disclosure of customer location information. 47 U.S.C. § 222 (2006). The Federal
Communication Commission’s 2002 denial of a petition filed by an industry group and
supported by privacy advocacy groups seeking commencement of rulemaking to clarify the
statute’s privacy provisions increased the likelihood of public ignorance or misunderstanding
regarding the statute’s location information protections. In the Matter of Request by Cellular
Telecommunications and Internet Association to Commence Rulemaking to Establish Fair
Location Information Practices F.C.C. 02-208 (2002), available at
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-208A1.pdf.
3
Ben Goldacre, How I Stalked My Girlfriend, GUARDIAN, Feb. 1, 2006,
http://technology.guardian.co.uk/print/0,,5388423-117802,00.html (last visited May 12,
2006). 2006] HERBERT 411
surveillance may constitute an Achilles heel to the currently
unregulated location based tracking marketplace.
Unlike the debates connected with bioethics and stem cell
research, the legal and ethical issues connected with human tracking
technology have not been subjected to a serious and rigorous debate.
Whether our society is prepared to collectively accept narrow notions
of privacy and autonomy through electronic location devices remains
to a large extent unexplored. Media disclosures of unchecked and
possibly unlawful use of presidential authority to engage in
warrantless technologically-based surveillance of Americans may spur
a more reasoned and spirited societal discussion regarding the impact
of new technology on personal privacy.
4
Such disclosures may render
useless the political cliché “9/11 changed everything” as justification
for the erosion of protected privacy interests and other civil liberties.
5
It remains to be seen whether the discussion regarding unchecked
presidential power will extend to a broader questioning of various
forms of electronic surveillance.
This article will discuss various legal principles and issues
associated with the use of the following human tracking technologies:
global positioning system (hereinafter “GPS”),
6
radio frequency
4
Leslie Cauley, NSA has Massive Database of Americans' Phone Calls, USA TODAY, May
11, 2006, available at http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm;
James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES,
Dec. 16, 2005, at A1; Eric Lichtblau & James Risen, Spy Agency Mined Vast Data Trove,
Officials Report, N.Y. TIMES, Dec. 24, 2005, at A1; Matthew L.Wald, Widespread
Radioactivity Monitoring Is Confirmed, N.Y. TIMES, Dec. 24, 2005, available at
http://www.nytimes.com/2005/12/24/national/24radioactive.html?ex=1293080400&en=0d380
1d05367f8c0&ei=5088&partner=rssnyt&emc=rss.
5
JEFFREY ROSEN, THE NAKED CROWD: RECLAIMING SECURITY AND FREEDOM IN AN ANXIOUS
AGE 55-61 (2004) [hereinafter NAKED CROWD]. Among the many questionable uses of the
September 11, 2001 tragedy as a rationale for policy changes was the 2004 National Labor
Relations Board’s decision that cited 9/11 as justification for overturning prior precedent that
had recognized a statutory right of a private sector employee in an unorganized worksite to be
represented by a co-worker during a disciplinary interrogation. IBM Corp., Cases 11-CA-
19324, 11-CA-19329, 11-CA-19334, 341 N.L.R.B. No.148, 2004 WL 1335742 (2004).
6
GPS is a satellite-based electronic system that provides very precise tracking of objects,
individuals, and other animals in real time anywhere on the planet. Originally developed by
the military, GPS technology has been available for civilian use for over twenty years.
Through triangulation of information from satellite signals, a GPS receiver can determine the
speed, latitude, and longitude of an object or individual under surveillance. GPS receivers can
be attached or installed in objects such as vehicles, cell phones, and laptops. In addition, GPS
receivers can be carried by, attached to, or implanted in an individual. April A. Otterberg,
GPS Tracking Technology: The Case for Revisiting Knotts and Shifting the Supreme Court’s
Theory of the Public Space Under the Fourth Amendment, 46 B.C.L. REV. 661, 665-666 412 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
identification (hereinafter “RFID”),
7
cellular technology,
8
and
biometrics
9
in the public and private sectors. In addition, it will
suggest potential solutions aimed at creating a balance between liberty
and security as they relate to the utilization of human tracking devices.
The application of such principles and the nature of the solutions will
depend on the type of tracking device and the context in which the
device is utilized. For example, the legal rules applicable to mandatory
or voluntary human implants containing location technology should be
far more restrictive than limitations placed on an employer utilizing a
location device to track an employee driving an employer owned
vehicle during working hours.
10
Concerns relating to privacy and
(2005); Kristin E. Edmundson, Global Positioning System Implants: Must Consumer Privacy
Be Lost In Order for People to be Found?, 38 IND. L. REV. 207, 209-212 (2005).
7
RFID is a radio-based identification system that utilizes tags with computer chips containing
digital information that can be used to track and identify humans, animals, and inanimate
objects. The digital information contained in the microchip can be read through the use of an
RFID reader. There are two types of RFID tags. An active RFID tag is battery powered and
emits a regular signal. In contrast, a passive RFID tag is powered only when in contact with a
reader. D. Zachary Hostetter, When Small Technology is a Big Deal: Legal Issues Arising
from Business Use of RFID, 2 SHIDLER J. L. COM. & TECH. 10 (2005), available at
http://www.lctjournal.washington.edu/Vol2/a010Hostetter.html. Common uses of RFID
technology include merchandise inventory control, airline luggage location, electronic tolling
systems, and human and animal implants.
8
There are two different aspects of human tracking technology connected with the cellular
marketplace. Following issuance of E-911 rules by the Federal Communications Commission
in 1997, many cellular companies installed GPS chips in their cell phones. In addition, the
location of a powered cell phone can be tracked in real time through the constant and
automatic communication between the cell phone and cell towers. See Jonathan Krim, FBI
Dealt Setback on Cellular Surveillance, WASH. POST, Oct. 28, 2005, at A5; Matt Richtel, Live
Tracking of Mobile Phones Prompts Court Fights On Privacy, N.Y. TIMES, Dec. 10, 2005, at
A1.
9
Biometrics refers to computer-based technology that can identify an individual or verify an
individual’s identity based on unique physical characteristics known as biometric identifiers
including fingerprint imaging, hand and facial geometries, voice recognition, and iris
recognition. See Eric Lipton, Hurdles for Technology In U.S. Security Efforts, N.Y. TIMES,
Aug. 10, 2005, at A14; Peter A. Buxbaum, The Biometrics Dilemma, HOMELAND SEC.,
Jan./Feb., 2005, at 14;
Paul Rosenzweig, Alane Kochems & Ari Schwartz, Biometric Technologies: Security, Legal,
and Policy Implications, THE HERITAGE FOUND., June 21, 2004,
www.heritage.org/research/homelanddefense/lm12.cfm.
10
Human implants frequently contain RFID or GPS technology. The RFID implant is
approximately the size of a grain of sand and can be placed under the skin of an arm or a hand
utilizing a syringe. In 2004, the United States Food and Drug Administration approved the
marketing of RFID microchips. Barnaby J. Feder & Tom Zeller, Jr., Identity Badge Worn 2006] HERBERT 413
autonomy are greatest when GPS, RFID, cellular technology, and
biometrics are utilized by the government to conduct surveillance,
employers to monitor employees, school districts to track their
students, rental car companies to monitor the use of rented vehicles,
and parents to keep track of their elusive teenagers.
Currently, the contours of protected privacy remain closely linked
to property rights. As will be seen, constitutional protections against
technological invasions into privacy remain strongest inside one’s
home or apartment with the windows shuttered. Once an individual
leaves his or her home or is visible inside the home from public space,
there is a precipitous drop in the scope of legal protections.
In contrast, many of us still retain a subjective sense of spatial
autonomy, even within the eyeshot of the public eye. The concept that
one can get lost in a crowd and retain a protected zone of privacy and
autonomy currently lacks strong legal foundation. Historically, escape
to urban areas constituted a means of obtaining anonymity and a new
identity.
11
The growing availability of human tracking technology has
the probability of eviscerating any subjective sense of personal
autonomy while outside the home unless there is corrective legislative
action.
In addition, privacy and other public policy concerns stem from
the potential vulnerability of such technologies to hacking and thirdparty access. A major source of opposition to the United States State
Department’s plan to introduce an electronic passport program
utilizing RFID technology came from those concerned about hacking
and surreptitious third-party reading of the information contained in
the microchip.
12
At the Fourth Annual IEEE International Conference
on Pervasive Computing and Communications in Pisa, Italy in 2006, a
computer science research group from Vrije Universiteit in
Amsterdam presented a paper identifying potential scenarios involving
the vulnerability of RFID tags to worms and viruses.
13
Other computer
Under Skin Approved for Use In Health Care, N.Y. TIMES, Oct. 14, 2004 available at
http://www.nytimes.com/2004/10/14/technology/14implant.html?ei=5070&en=aea96eac9d8c
161b&ex=1148529600&adxnnl=1&adxnnlx=1148425670-YYyCA2+3RCqgnWPBR6be3g.
11
JOHN HOPE FRANKLIN & LOREN SCHWENINGER, RUNAWAY SLAVES: REBELS ON THE
PLANTATION 124-148 (1999).
12
Electronic Passport, 70 Fed. Reg. 61,553-01 (Oct. 25, 2005) (to be codified at 22 C.F.R. pt.
51).
13
Melanie R. Rieback, Bruno Crispo & Andrew S. Tanenbaum, Is Your Cat Infected with a
Computer Virus?, http://www.rfidvirus.org/papers/percom.06.pdf; John Markoff, Study Says
Chips in ID Tags Are Vulnerable to Viruses, N.Y. TIMES, Mar. 15, 2006, at C3. 414 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
researchers have demonstrated an ability to hack and clone RFID
information.
14
Nevertheless, countries such as China and the United
Kingdom are introducing national identification cards containing
RFID technology.
15
Important legal and policy issues also arise in the context of
individual volitional use of tracking technology for safety and
convenience. The utilization of new technological gadgets can result
in unwanted or unanticipated third party surveillance and unforeseen
negative consequences such as stalking. Although many motorists
enjoy the efficiency of electronic tollbooths and “smart highways,”
such enjoyment may abruptly end if, or when the government begins
to issue speeding tickets premised on the electronic information that
calculates the average speed of a trip between two electronic points.
16
The federal government is currently funding state studies regarding the
use of GPS tracking on toll roads to develop “mileage-based road user
fees.”
17
In addition, the popularity of mass transit fare cards with
RFID chips may decline when passengers learn that their location and
movements can be tracked.
18
GPS and cellular technology are being utilized for the care of
Alzheimer’s patients and to enable parents to monitor the location of
14
Robert Lemos, RFID tags become hacker target, CNET NEWS.COM, July 28, 2004,
http://news.com.com/RFID+tags+become+hacker+target/2100-1029_3-5287912.html.
15
Sumner Lemon, China to issue 1.3 billion RFID identification cards, IDG NEWS SERV.,
Mar. 9, 2006, http://www.infoworld.com/article/06/03/09/76259_HNchinarfidcards_1.html;
Oliver King, New ID cards defeat for government, GUARDIAN, Mar. 6, 2006,
http://politics.guardian.co.uk/print/0,,329427960-110247,00.html.
16
Christopher Caldwell, A Pass On Privacy?, N.Y. TIMES MAG., July 17, 2005, at 13-14,
available at
http://www.nytimes.com/2005/07/17/magazine/17WWLN.html?ex=1279252800&en=6aa0d4
4b263846f1&ei=5088&partner=rssnyt&emc=rss.
17
Declan McCullagh, Perspective: E-tracking, Coming to a DMV Near You, CNET
NEWS.COM, Dec. 5, 2005, http://news.com.com/Etracking%2C+coming+to+a+DMV+near+you/2010-1071_3-5980979.html. In New York,
over 200 volunteer drivers participated in a federally funded study utilizing GPS devices to
create a data flow regarding traffic patterns and speeds in a 40-mile radius. Michael Hill,
Traffic Studied Using Computer-Linked Cars, ABC NEWS, Apr. 24, 2005,
http://abcnews.go.com/US/print?id=698667.
18
Oyster Data Uses Rises in Crime Clampdown, GUARDIAN, Mar. 13, 2006, available at
http://politics.guardian.co.uk/foi/story/0,,1730771,00.html. 2006] HERBERT 415
their children.
19
The decreasing expense of GPS devices may tempt
some to use tracking technology as a replacement for more expensive
nursing and childcare.
20
However, market location devices and
services do not constitute “magic bullets” that eliminate fears
regarding the safety and well-being of children and the disabled.
Satellite-based information regarding the precise location of a patient
or child is a far less effective means of protection than direct care.
Furthermore, equipment failure or malfunction in such devices and
services can increase anxiety, if not panic, for those who choose
tracking technology over direct supervision and may result in
increased societal costs connected with police intervention.
21
The legal implications relating to an individual’s volitional use of a
tracking device to monitor his or her own whereabouts or for safety
while driving, hiking, or boating will not be the subject of this article.
Reasonable people can differ whether individual use of such
technological devices lead to personal serenity or are necessitated by
genuine risks to personal safety.
22
There are few justifications for
expansive regulation of an individual’s choice to utilize new
technological gadgets unless the technology results in unwanted or
unanticipated third party surveillance, leads to an increase in reckless
and anti-social behavior, or is used to intrude on the privacy of others.
Tracking devices, like other technological developments, can lead
to unforeseen negative social consequences.
23
On the most basic level,
19
University of Pittsburgh Medical Center, GPS Technology and Alzheimer’s Disease: Novel
Use for an Existing Technology, U. PITT. MED. CENTER, http://alzheimers.upmc.com/GPS.htm
(last visited May 13, 2006).
20
Rob Pegoraro, Watch Out, Kids: With GPS Phones, Big Mother Is Watching, WASH. POST,
Apr. 19, 2006, available at http://www.washingtonpost.com/wpdyn/content/article/2006/04/18/AR2006041801604.html.
21
Matt Richtel, Selling Surveillance To Anxious Parents, N.Y. TIMES, May 3, 2006, available
at
http://tech2.nytimes.com/mem/technology/techreview.html?res=9501EED8113FF930A35756
C0A9609C8B63.
22
For example, author Ted Conover has noted that use of a vehicle GPS device can deprive
enjoyment “of unmeasured moments of suspension between here and there.” Ted Conover,
Get Lost, N.Y. TIMES, Dec. 14, 2005, available at
http://www.nytimes.com/2005/12/14/opinion/14conover.html?ex=1292216400&en=6d01289e
3e9a5566&ei=5088&partner=rssnyt&emc=rss.
23
The great television comic Sid Caesar has observed that the use of television remote control
devices has led to negative social consequences: “The remote control took over the timing of
the world. That’s why you have road rage. You have people who have no patience, because
you get immediate gratification. You got click, click, click, click. If it doesn’t explode within 416 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
the expectation of presumed technological perfection in tracking
technology can lead to potential panic in the face of a malfunction,
anxiety when feeling lost along with a general societal decline in
geographical common sense. Although automobile travel has existed
for a century, it is only in recent times that some drivers have
developed a sense of fear when driving without the availability of a
cell phone or outside the range of a cellular tower. Tracking devices
can lead to the proliferation of dangerous activities such as reckless
mountain hiking to remote areas or over-exuberant geo-caching
resulting in police intervention. Nevertheless, a New York Times
practical traveler article highlighting the recreational usages of GPS
technology failed, to discuss the possibility of mechanical failure or
suggest precautions to avoid unexpected exigencies.
24
The unforeseen societal impact connected with an expansive use of
location technology is neither theoretical nor speculative. In an
anthropological study of the Inuit people, Professors Claudio Aporta
and Eric Higgs analyzed the impact GPS technology has had on the
Inuit traditional orientation and navigational skills in the Arctic
environment.
25
Historically, the Intuit were able to orient themselves
in the harsh Arctic climate through careful observance of natural
phenomena such as wind, snowdrifts, and water currents.
26
In their
article, Professors Aporta and Higgs describe both the positive and
negative consequences from the use of GPS technology by the Inuit.
Although hunting for walrus may have become less burdensome, overreliance on technology has led to a disengagement with the natural
world along with hunting mishaps resulting from mechanical
failures.
27
Rapid changes in social behavior and cultural norms caused by the
introduction of advanced technologies place a constant pressure for
revisions in the legal balance between human rights and property
three seconds, click click, click.” Hal Boedeker, PBS’ Pioneers’ is a history lesson, CHI.
TRIB., Aug. 8, 2005, at 7.
24
David A. Kelly, Global Positioning Systems: On Road or Trail, Navigating Made Simple,
N.Y. TIMES, Mar. 5, 2006, available at
http://travel2.nytimes.com/2006/03/05/travel/05prac.html?pagewanted=1.
25
Claudio Aporta & Eric Higgs, Satellite Culture: Global Positioning Systems, Inuit
Wayfinding, and the Need for a New Account of Technology, 46 CURRENT ANTHROPOLOGY
729 (2005).
26
Id. at 731.
27
Id. at 744-745. 2006] HERBERT 417
rights. A primary area of law that will be subjected to extensive
efforts aimed at expanding the zone of protected privacy in the face of
human tracking technologies will be provisions of the United States
Constitution and analogous provisions of state constitutions. This
article begins with a discussion of case law regarding human tracking
under the Fourth and Thirteenth Amendments to the United States
Constitution and state constitutional provisions.
I. CONSTITUTIONAL LIMITATIONS ON THE USE OF HUMAN TRACKING
TECHNOLOGY
The primary source for current American legal analysis of
protected privacy interests stems from the field of constitutionally
mandated criminal procedure based on judicial interpretations of the
Fourth Amendment to the United States Constitution.
28
At present, the
United States Supreme Court has not ruled on the applicability of the
Fourth Amendment to most recent forms of human tracking
technology. Based on precedent over the past four decades regarding
the scope of privacy protections under the Fourth Amendment, any
expectation for broad judicially based limitations on human tracking
technology would be illusory.
The tendency of certain justices and judges to apply judicial
restraint with respect to constitutional criminal procedure should not
be confused with indifference to the impact technology is having on
privacy. Five years ago, Chief Justice Rehnquist, joined by Justices
Scalia and Thomas, expressed deep concerns regarding the decline in
privacy in the modern technological world:
Technology now permits millions of important and
confidential conversations to occur through a vast system of
electronic networks. These advances, however, raise
significant privacy concerns. We are placed in the
uncomfortable position of not knowing who might have
access to our personal and business e-mails, our medical and
28
The Fourth Amendment provides that: “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.” U.S.
CONST. amend. IV. 418 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
financial records, or our cordless and cellular telephone
conversations.
29
Despite such pronouncements, it is unlikely that workable limitations
on the use of human tracking devices will grow out of criminal appeals
under the Fourth Amendment. In addition, it is unlikely that in the
present political climate Congress will increase federal restrictions on
tracking technology based on contemporary deregulation ideology and
the politics of fear. It is far more probable that broader restrictions
will come from state legislative initiatives and judicial interpretations
of state constitutional provisions, statutes, and common law.
A. HUMAN TRACKING AND THE FOURTH AMENDMENT
In 1928, fifty years following the invention of the telephone by
Alexander Graham Bell, in Olmstead v. United States, the United
States Supreme Court determined that the Fourth Amendment did not
prohibit federal prohibition officials from eavesdropping on telephone
conversations taking place in the defendants’ homes and offices by
inserting small wires on eight telephone lines outside those premises.
30
The Olmstead majority reasoned that because the federal agents had
placed the wiretaps on the outside they had not engaged in a search or
seizure under the Fourth Amendment requiring the issuance of a
warrant: “The intervening wires are not part of his house or office any
more than are the highways along which they are stretched.”
31
Therefore, the majority affirmed the conspiracy convictions under the
National Prohibition Act, that were based on the eavesdropping
evidence.
32
Today, the case of Olmstead v. United States is primarily
remembered for the vigorous dissent authored by Justice Louis D.
Brandeis. Well before Olmstead, Brandeis was known for his coauthorship of the seminal 1890 Harvard Law Review article “The
Right to Privacy,” that advocated for enforceable common law rights
29
Bartnicki v. Vopper, 532 U.S. 514, 541 (2001) (Rehnquist, C.J., dissenting). In that same
year, Justice Scalia observed that “[i]t would be foolish to contend that the degree of privacy
secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of
technology.” Kyllo v. United States, 533 U.S. 27, 33-34 (2001).
30
Olmstead v. United States, 277 U.S. 438 (1928).
30
Id. at 465.
32
Id. at 469. 2006] HERBERT 419
against the invasion of personal privacy, especially in the face of the
development of new technologies such as photography.
33
In his Olmstead dissent, Brandeis presented a far-sighted critique
regarding the government’s use of the new technology to invade the
privacy of its citizens. In contrast to the majority’s reliance on
concepts of trespass law to limit the zone of privacy protected by the
Fourth Amendment, Brandeis articulated a broader concept of
constitutionally protected privacy that transcends both property
interests and materialism:
The makers of our Constitution undertook to secure
conditions favorable to the pursuit of happiness. They
recognized the significance of man’s spiritual nature, of his
feelings and of his intellect. They knew that only a part of
the pain, pleasure and satisfactions of life are to be found in
material things. They sought to protect Americans in their
beliefs, their thoughts, their emotions and their sensations.
They conferred, as against the Government, the right to be
let alone-- the most comprehensive of rights and the right
most valued by civilized men. To protect that right, every
unjustifiable intrusion by the Government upon the privacy
of the individual, whatever the means employed, must be
deemed a violation of the Fourth Amendment.
34
Close to forty years later, the United States Supreme Court
overruled the holding in Olmstead v. United States. In Katz v. United
States, the Court held that the FBI’s placement of a microphone on the
roof of an enclosed public telephone booth to eavesdrop and tape
record telephone calls made by an illegal gambling suspect, without a
warrant, constituted a violation of the Fourth Amendment regardless
of whether or not a physical intrusion had taken place.
35
In reaching
its decision in Katz, the Court’s majority rejected both a strict reliance
on trespass law to define the scope of privacy protections under the
Fourth Amendment, as well as Brandeis’ much broader concept that
33
Samuel L. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193
(1890); See also David W. Leebron, The Right to Privacy’s Place in the Intellectual History of
Tort Law, 41 CASE W. RES. L. REV. 769 (1991); JEFFREY ROSEN, THE UNWANTED GAZE: THE
DESTRUCTION OF PRIVACY IN AMERICA 5-7 (2000) [hereinafter UNWANTED GAZE].
34
Olmstead, 277 U.S. at 478 (Brandeis, J., dissenting).
35
Katz v. United States, 389 U.S. 347 (1967). 420 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
the Fourth Amendment gave Americans “the right to be let alone” by
other people.
36
Nevertheless, by mandating for the first time that the
police obtain a court-ordered warrant before engaging in electronic
surveillance, the Katz decision established a significant judicial check
on government agents randomly engaging in such surveillance.
37
In his concurrence in Katz, Justice Harlan formulated the now
uniform test for determining whether the Fourth Amendment is
applicable to a particular set of facts, including whether a particular
use of a new invasive technology is unconstitutional: a) whether the
individual possesses a subjective expectation of privacy, and b)
whether the individual’s subjective expectation is “one that society is
prepared to recognize as ‘reasonable.’”
38
Despite continued judicial
reliance on Justice Harlan’s Katz formulation regarding the applicable
test for what constitutes a protected expectation of privacy, as early as
1971, Justice Harlan distanced himself from the formulation, noting
that it can “lead to the substitution of words for analysis” and
emphasized that the critical question “is whether under our system of
government, as reflected in the Constitution, we should impose on our
citizens the risks of the electronic listener or observer without at least
the protection of a warrant requirement.”
39
B. THE FOURTH AMENDMENT OUTSIDE AND INSIDE THE HOME
The Katz reasonable expectation of privacy test has led to a series
of federal court decisions that have determined that, in most cases, the
use of a tracking device to monitor the location of vehicles and
containers are not subject to the Fourth Amendment. The primary
exception to this rule is when the device is utilized to determine what
is taking place within a person’s home.
In 1983, in United States v. Knotts, the Supreme Court decided that
the police did not have to obtain a warrant under the Fourth
Amendment before using a radio beeper to monitor the movement and
location of a vehicle.
40
The Court portrayed the use of such tracking
36
Id. at 350 (stating that “the correct solution of Fourth Amendment problems is not
necessarily promoted by incantation of the phrase “constitutionally protected area.” Secondly,
the Fourth Amendment cannot be translated into a general constitutional “right to privacy”).
37
Id. at 350-353.
38
Katz, 389 U.S. at 361 (Harlan, J., concurring).
39
United States v. White, 401 U.S. 745, 786 (1971) (Harlan, J., dissenting).
40
United States v. Knotts, 460 U.S. 276 (1983). 2006] HERBERT 421
technology as a mere extension of the police’s power to engage in
visual surveillance of a criminal suspect.
41
In Knotts, the police had placed a battery operated radio
transmitter in a drum containing chloroform as part of a drug
investigation.
42
After the drug suspect purchased the drum, the police
used the beeper’s signals to assist in conducting surveillance of the
movement and location of the suspect’s car containing the drum of
chloroform.
43
The beeper transmissions, along with additional visual
surveillance by the police, resulted in the issuance of a warrant and the
disclosure of a clandestine drug laboratory located in a rural
Wisconsin cabin.
44
In reaching its decision, the Supreme Court
applied a broad legal rule that renders the use of most human tracking
devices attached to vehicles to be outside of Fourth Amendment
protections: “A person traveling in an automobile on public
thoroughfares has no reasonable expectation of privacy in his
movements from one place to another.”
45
Under Knotts, whether the vehicle is driven unseen on an empty
highway, through a long dark tunnel, or an unpaved obscure
mountainous road, is irrelevant. The mere exposure of the vehicle to
the sunlight or the exterior darkness grants the police, without a
warrant, to monitor the movement of the vehicle utilizing a tracking
device lawfully placed.
The principle applied in Knotts was based on earlier cases that had
determined that Americans, in general, have few Fourth Amendment
privacy rights while outside the home. This exception to Fourth
Amendment protections has been long recognized by the Supreme
Court. For example, in Hester v. United States, the Court determined
that Fourth Amendment protections did not extend from a house into
an adjacent open field.
46
Sixty years later, the open fields exception to
the Fourth Amendment was reaffirmed in Oliver v. United States.
47
41
Id. at 280-282.
42
Id. at 277.
43
Id.
44
Id.
45
Id. at 281.
46
Hester v. United States, 265 U.S. 57 (1924).
47
Oliver v. United States, 466 U.S. 170 (1984). 422 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
Intentional or inadvertent exposure can also defeat a claimed
expectation of privacy. Therefore, the Fourth Amendment has been
found inapplicable to aerial police observation of an area from public
air space.
48
Similarly, the Court has held that the Fourth Amendment
was not violated when law enforcement stood in an open field and
observed the inside of a barn that was 60 yards from a home.
49
It is reasonable to assume that this limited conception of privacy
under the Fourth Amendment would be equally applicable to the use
of location devices that are legally attached or carried by an individual
on public streets, roads, and trails. An expansive application of this
principle to new location technology in an unregulated market
economy would permit anyone to electronically track anyone else in
public.
One year after Knotts, the Supreme Court in United States v. Karo
was called upon to determine whether the police violated the Fourth
Amendment when they attached a beeper to a can of chemicals during
another drug investigation to determine the can’s location within a
private residence not open to visual surveillance.
50
Like Knotts, the
police in Karo had used beeper transmissions and visual surveillance
to follow the movement of the can to various locations.
51
However,
unlike Knotts, the police continued to utilize the beeper to determine
whether the can was located in the private house.
52
In concluding that
the Fourth Amendment had been violated, the Karo majority applied a
core Fourth Amendment principle that a search and seizure inside a
home without a warrant is presumptively unreasonable absent an
exigent circumstance.
53
Based on the fact that the beeper allowed the
police to learn that the can was located in the house and allowed for
them to monitor its internal movement, the Court concluded that the
use of the tracking device constituted an unlawful search under the
Fourth Amendment.
54
48
California v. Ciraolo, 476 U.S. 207 (1986).
49
United States v. Dunn, 480 U.S. 294 (1987).
50
United States v. Karo, 468 U.S. 705, 707 (1984).
51
Id. at 708.
52
Id.
53
Id. at 714.
54
Id. at 714-715. 2006] HERBERT 423
The broad scope of judicially recognized Fourth Amendment
protections against technological surveillance within the home was
exemplified in the 2001 decision in Kyllo v. United States.
55
At the
same time, the Kyllo decision suggests that the proliferation of
invasive technological tools in general public use may eviscerate any
reasonable expectation to privacy within one’s home.
In Kyllo, the police suspected that marijuana was being grown
inside a home utilizing high-density halide lamps.
56
In order to
determine whether such lamps were being utilized, the police while
seated in their car in the street, scanned the home utilizing a thermal
imager to detect infrared radiation that is invisible to the naked eye.
57
The scanning device reported that portions of the house were hotter
than other sections of the house and neighboring homes.
58
In
concluding that the police’s use of the thermal-imaging device without
a warrant violated the Fourth Amendment because it was capable of
detecting lawful behavior in the house, the Kyllo majority stated:
Where, as here, the Government uses a device that is not in
general public use, to explore details of the home that would
previously have been unknowable without physical
intrusion, the surveillance is a “search” and is presumptively
unreasonable without a warrant.
59
At present, the Supreme Court has not interpreted the Fourth
Amendment with regard to more advanced forms of tracking
technology such as GPS, RFID, or real time cell site monitoring.
Based on Supreme Court precedent since Katz, it is unlikely that the
Court will rule that the Fourth Amendment requires a warrant prior to
the police utilizing such devices to electronically track movement in
public. However, a strong argument can be made that based on the
scope of private information obtainable through GPS and cellular
tracking technology, the Fourth Amendment probable cause and
55
Kyllo v. United States, 533 U.S. 27 (2001).
56
Id. at 29.
57
Id.
58
Id. at 30.
59
Id. at 40. 424 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
warrant requirements should be found applicable.
60
In 2005, a Federal
District Court in New York, relying on the Knotts decision, ruled that
the Fourth Amendment was not violated when the police attached GPS
devices to the defendant’s vehicles because the defendant had no
expectation of privacy while driving on public roadways.
61
In
contrast, a federal judge in Maryland has questioned, without deciding,
whether the extraordinary amount of detailed personal information
obtainable through the use of a GPS device would render it subject to
Fourth Amendment constraints.
62
The Kyllo and Karo decisions strongly suggest that the use of
GPS, RFID, and real time cell site technology by the police to monitor
the location of an individual or object within a home will be subject to
the requirements of the Fourth Amendment. Based on the portability
of cell phones, lawful public location surveillance by the police under
Knotts can easily be transformed into unlawful surveillance under
Karo if the cell phone is being carried into a home or other private
space. Last year, three United States District Court Magistrates issued
decisions raising such Fourth Amendment concerns with respect to
warrantless real time cell site monitoring.
63
Finally, it should not be overlooked that the Kyllo decision
contains an ominous caveat regarding Fourth Amendment protections
against electronic surveillance within a home: it is limited to devices
that are not “in general public use.”
64
This expressed limitation in the
Kyllo holding raises the possibility that the proliferation of cell phones
and inexpensive GPS devices could lead the Supreme Court to
conclude that electronic monitoring within a home using such devices
is not subject to the Fourth Amendment.
60
The Washington Supreme Court adopted this reasoning when it interpreted that State’s
broader constitutional provision protecting “private affairs.” State v. Jackson, 76 P.3d 217
(Wash. 2003) (en banc); see also Otterberg, supra note 6, at 695-697.
61
United States v. Moran, 349 F. Supp 2d 425, 467-468 (N.D.N.Y. 2005).
62
United States v. Berry, 300 F. Supp 2d 366, 368 (D. Md. 2004).
63
See In re Application for Pen Register and Trap/Trace Device with Cell Site Location
Authority, 396 F. Supp 2d 747 (S.D. Tex. 2005); In the Matter of an Application of the United
States for an Order (1) Authorizing the Use of a Pen Register and a Trap and Trace Device
and (2) Authorizing Release of Subscriber Information and/or Cell Site Information, 396 F.
Supp 2d 294 (E.D.N.Y. 2005); In re Application of the United States of America for an Order
Authorizing the Installation and Use of a Pen Register and a Caller Identification System on
Telephone Numbers [Sealed] and [sealed] the Production of Real Time Cell Site Information,
402 F. Supp 3d 597 (D. Md. 2005).
64
Kyllo, 533 U.S. at 40. 2006] HERBERT 425
C. THE THIRTEENTH AMENDMENT AND HUMAN TRACKING
Professors Jerome Dobson and Peter F. Fisher have applied the
term “geoslavery” to describe how new location tracking devices can
result in coercive control over human movement and direction.
65
The
metaphorical application of the term “slavery” to electronic human
tracking has both historical precedence and legal relevance.
66
From
well before the Civil War through the 1930s, phrases such as “wage
slavery” and “industrial slavery” were frequently applied to describe
the oppressed conditions and status of workers.
67
The brutal reality of
chattel slavery was obviously and substantially more oppressive than
19
th
Century working conditions or contemporary use of electronic
monitoring. Nevertheless, in considering possible legal restraints
applicable to human tracking it is relevant to consider the value such
devices would have had for slaveholders in the 19
th
Century, the
impact such technology would have had on American history, and
whether such devices constitute a vestige of slavery.
Historians John Hope Franklin and Loren Schweninger have
detailed and documented the amount of time and resources Southern
slaveholders had to expend in searching for and capturing runaway
slaves.
68
Their study highlights that essential aspects of American
slavery included restrictions on the freedom of movement of enslaved
African-Americans and severe corporal punishment imposed by
slaveholders and overseers when slaves were caught escaping or
captured following escape.
Many in bondage attempted and succeeded in escaping for
different motives including legal emancipation, reunions with family
members, and escape from particularly brutal owners. The method
and direction of escape differed widely, causing slave owners to rely
on speculation and surmise in tracking down their escaped human
property.
69
As a means of locating and capturing those who escaped,
slaveholders hired lawyers, petitioned state legislatures, purchased
newspaper advertisements, and utilized slave catchers. These means
of human tracking were expensive and inefficient.
65
Jerome E. Dobson & Peter F. Fisher, Geoslavery, IEEE TECH. AND SOC’Y MAG., Spring
2003, at 47.
66
See FONER, supra note 1, at 29-31.
67
Id. at 60-62, 142, 199-203.
68
FRANKLIN & SCHWENINGER, supra note 11, at 149-181.
69
Id. at 97-123. 426 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
American concerns regarding the location and capture of those
who escaped from bondage can be found in the United States
Constitution. Slaveholder interest in maintaining physical and legal
control over their human chattel was so great that the Constitution was
drafted to contain the Fugitive Slave Clause aimed at guaranteeing the
return of a runaway who succeeded in an interstate escape.
70
The
Fugitive Slave Clause, originally proposed by a South Carolina
delegate to the Constitutional Convention, was aimed at insuring that
slaveholders had a constitutionally based means of obtaining the return
of a runaway slave who had escaped to a free state without the
drafters’ using the word slavery.
71
In 1793, the Second Congress
enacted legislation granting slaveholders and their agents a specific
legal procedure permitting them to seize an individual and take him or
her before a magistrate to obtain a certificate requiring a return to
bondage in a slave state.
72
As part of the Compromise of 1850, Congress enacted the Fugitive
Slave Act aimed at easing the ability of Southern slaveholders to
recapture fugitive slaves through Federal judicial means. However,
rather than calming the rising national dispute over slavery, the
provisions of the Fugitive Slave Act precipitated an increase in
aggressive Abolitionist activity including active resistance to the
capture of freed slaves.
73
The 1851 Thomas Sims’s Case is an example of the type of
antebellum litigation that resulted when slave owners sought the return
of a runaway.
74
On April 3, 1851, under the powers of the Fugitive
Slave Act of 1850, Commissioner George T. Curtis of the United
States Circuit Court issued a warrant to the Massachusetts federal
marshal requiring the capture of Sims, an African-American “fugitive
70
The United States Constitution states, “No Person held to Service or Labour in one State,
under the Laws thereof, escaping into another, shall, in Consequence of any Law or
Regulation therein, be discharged from such Service or Labour, but shall be delivered up on
Claim of the Party to who such Service or Labour may be due.” U.S. CONST. art. IV, § 2, cl. 3.
71
JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE
CONSTITUTION 89, 91 (1996).
72
Thomas Sims’s Case, 61 Mass. (1 Cush.) 285, 297-298, 301-302 (1851).
73
RICHARD H. SEWELL, BALLOTS FOR FREEDOM: ANTISLAVERY POLITICS IN THE UNITED STATES
1837-1860 236-239 (1976); HENRY MAYER, ALL ON FIRE: WILLIAM LLOYD GARRISON AND THE
ABOLITION OF SLAVERY 406-442 (1998); MILTON C. SERNETT, NORTH STAR COUNTRY:
UPSTATE NEW YORK AND THE CRUSADE FOR AFRICAN AMERICAN FREEDOM 127-153 (2002).
74
Thomas Sims’s Case, 61 Mass. (1 Cush.) 285 (1851). 2006] HERBERT 427
from labor” to answer a complaint filed on behalf of a Georgia slave
owner.
75
Following Sims’s capture and imprisonment pursuant to the
warrant, a habeas corpus petition was filed in Massachusetts’s state
court seeking to free Sims and challenging the Fugitive Slave Law.
The petition was heard before Massachusetts’ Chief Judge Lemuel
Shaw, the father-in-law of Herman Melville. To avoid the recurrence
of Abolitionists’ physical efforts to rescue Sims, heavy chains were
placed around the courthouse.
76
Although personally opposed to
slavery, Chief Judge Shaw denied the writ concluding that the Fugitive
Slave Act was constitutional based on the history of the Fugitive Slave
Clause and precedent upholding the earlier 1793 federal fugitive slave
law.
77
Following Chief Judge Shaw’s application of judicial restraint,
Sims was returned to bondage in Georgia and subjected to a severe
public beating.
78
The use of GPS, RFID, and biometric technology by slave owners
would have perpetuated the enslavement of African-Americans,
substantially decreased the cost of tracking down runaways, and
altered American history. The use of real time location technology
would have vastly improved the monitoring of the daily productivity
of slave labor, thereby increasing efficiency along with the economic
value and power of America’s peculiar institution. Such technology
would have also made slave resistance and escape far more difficult.
Through GPS or RFID implants, slaveholders would have been able to
easily locate and identify individuals who succeeded in escaping.
Working together, slaveholders would have been able to establish geofences and a communications network that would have substantially
aided in slaveholder domination over the personal lives of those held
in bondage. By undermining the ability of individuals such as
Frederick Douglass from escaping, these technological tools may have
decreased the awareness in the North of the horrors of American
slavery prior to the Civil War.
79
In 1865, Congress adopted the Thirteenth Amendment,
subsequently ratified by the States, banning slavery and involuntary
servitude. Unlike other constitutional amendments, the Thirteenth
75
Id. at 293.
76
ANDREW DELBANCO, MELVILLE: HIS WORLD AND WORK 153-154 (2005).
77
Sims, 61 Mass. (1 Cush). at 294-308.
78
DELBANCO, supra note 76, at 154.
79
See WILLIAM S. MCFEELY, FREDERICK DOUGLASS (1991). 428 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
Amendment uniquely restricts both private conduct as well as
governmental action.
80
The Thirteenth Amendment states:
1. Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction.
2. Congress shall have power to enforce this article by
appropriate legislation.
81
The Thirteenth Amendment was never intended to be limited to
ending the enslavement of African-Americans. In 1911, the United
States Supreme Court highlighted the amendment’s broad breadth
when it described the amendment as “a charter of universal civil
freedom for all persons, of whatever race, color or estate, under the
flag” that was intended to abolish both slavery as well as all vestiges,
badges, and incidents of slavery.
82
In addition to outlawing slavery,
the Thirteenth Amendment also prohibits involuntary servitude.
The amendment granted Congress the power to enact legislation
targeted at eliminating those badges and incidents of slavery including
the “privilege to go and come” as one pleases.
83
Congressional
authority under the amendment includes the power “to determine what
are the badges and the incidents of slavery, and the authority to
translate that determination into effective legislation.”
84
However, it
was not intended to be the basis for challenging various established
societal power relationships such as that of parent-child.
85
Based on the history and interpretation of the Thirteenth
Amendment, Alexander Tsesis has argued that the amendment
80
United States v. Kozminski, 487 U.S. 931, 942 (1988).
81
U.S. CONST. amend XIII.
82
Bailey v. State of Alabama, 219 U.S. 219, 241 (1911).
83
Jones v. Alfred H. Mayer Co, 392 U.S. 409, 430 (1968) (quoting from Senate Judiciary
Chairman Trumbell during a 1866 legislative debate).
84
Id. at 440.
85
Kozminski, 487 U.S. at 944 (citing Robertson v. Baldwin, 165 U.S. 275, 282 (1897)). 2006] HERBERT 429
provides the constitutional predicate for the enactment of broad federal
laws banning public and private limitations on universal liberties.
86
Whether a majority of the United States Supreme Court would
concur with Tsesis’ thesis of such broad congressional power under
the Thirteenth Amendment remains in doubt. Various Supreme Court
decisions in the past fifteen years have demarcated newly established
limitations on congressional legislative power under the Commerce
Clause, the Eleventh Amendment, and the remedial provision of the
Fourteenth Amendment.
87
Nevertheless, a reasonably strong argument can be made that
Congress does have the constitutional power under the remedial
provision of the Thirteenth Amendment to ban the use of tracking
devices to dominate and control the location of others. Imposing
restrictions, control, and monitoring over another’s location constitutes
a vestige and incident of slavery.
In addition, mandatory tracking, identification implants, or
attachments on another human being would be subject to court
challenge under the Thirteenth Amendment. Such devices are the
technological equivalent, in many respects, to various slaveholder
tools, including branding, utilized to keep African-Americans from
escaping bondage or as punishment for such escapes. Therefore, the
use of such devices to establish geo-fences and even impose corporal
punishment would constitute a vestige of slavery. In addition, the
imposition of physical injury or threat of physical injury emanating
from a tracking device would be subject to challenge as a form of
involuntary servitude especially if the electronic punishment is aimed
at forcing an individual to continue working.
88
86
ALEXANDER TSESIS, THE THIRTEENTH AMENDMENT AND AMERICAN FREEDOM: A LEGAL
HISTORY 86-87, 89, 104-105 (2004).
87
See United States v. Lopez, 514 U.S. 549 (1995) (in which a Federal statute prohibiting
guns in the vicinity of public schools was declared unconstitutional on the grounds that it went
beyond congressional power granted by the Commerce Clause); Alden v. Maine, 527 U.S. 706
(1999) (in which a Federal overtime law was determined to be unconstitutional under the
Eleventh Amendment to the extent that it granted employees the right to sue State employers
in Federal court); United States v. Morrison, 529 U.S. 598 (2000) (in which a portion of the
Federal Violence Against Women Act was declared unconstitutional as beyond congressional
authority under the Commerce Clause and the Fourteenth Amendment); Board of Trustees of
University of Alabama v. Garrett, 531 U.S. 356 (2001) (holding the Americans with
Disabilities Act unconstitutional under the Eleventh Amendment to the extent that it applied to
a State’s workforce).
88
Dobson & Fisher, supra note 64, at 47-49; Peter Fisher & Jerome Dobson, Who Knows
Where You Are, and Who Should, in the Era of Mobile Geography? 88 GEOGRAPHY 331, 335-
336 (2003); Kozminski, 487 U.S. at 944, 952. 430 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
D. STATE CONSTITUTIONAL LIMITATIONS ON THE USE OF TRACKING
DEVICES
The application of the reasonable expectation of privacy test to
new technological intrusions is not without its critics. As Jeffrey
Rosen has pointed out, “[A]s advances in the technology of
monitoring and searching have made ever more intrusive surveillance
possible, expectations of privacy have naturally diminished, with a
corresponding reduction in constitutional protections.”
89
The Oregon
Supreme Court in State v. Campbell termed the reasonable expectation
test as “a formula for expressing a conclusion rather than a starting
point for analysis, masking the various substantive considerations that
are the real bases on which Fourth Amendment searches are
defined.”
90
Various state courts have determined, under their respective state
constitutions, that the police are required to obtain a warrant prior to
utilizing an electronic device. In reaching such legal conclusions, the
courts have recognized that electronic tracking devices are not mere
technological enhancements to law enforcement vision but rather a
substantial intrusion into an individual’s privacy and autonomy.
In State v. Campbell, the Oregon Constitution was interpreted to
prohibit the police’s warrantless use of a radio transmitter to locate a
private vehicle.
91
In that case, the police used a radio transmitter
attached to a burglary suspect’s car to track his movements after the
police were unable to maintain constant visual surveillance.
92
In
determining that a warrant is required prior to the police utilizing a
tracking device, the Oregon Supreme Court rejected the Supreme
Court’s rationale in Knotts and determined that the transmitter was a
location finder rather than a mere extension of police visual tracking.
93
In substitution of the reasonable expectation of privacy test, the
Oregon Supreme Court defined a privacy interest as “an interest in
freedom from particular forms of scrutiny” and concluded that the use
89
ROSEN, UNWANTED GAZE, supra note 32, at 60-61.
90
State v. Campbell, 759 P.2d 1040, 1044 (Or. 1988).
91
Id. at 1041.
92
Id.
93
Id. at 1047. 2006] HERBERT 431
of a radio transmitter to locate a person or object constituted a
significant limitation on the freedom from scrutiny.
94
In reaching its conclusion, the Oregon Court recognized the
perniciousness of technological tracking devices by creating a daily
fear of being watched:
The limitation is made more substantial by the fact that the
radio transmitter is much more difficult to detect than
would-be observers who must rely upon the sense of sight.
Without an ongoing, meticulous examination of one’s
possessions, one can never be sure that one’s location is not
being monitored by means of a radio transmitter. Thus,
individuals must more readily assume that they are the
objects of government scrutiny.
95
In 2003, the Washington Supreme Court ruled that under
Washington’s more protective constitutional provision regarding
searches and seizures, the police were required to obtain a warrant
based on probable cause prior to attaching a GPS device to a citizen’s
vehicle.
96
In accordance with the Oregon Supreme Court’s analysis,
Washington’s highest court concluded that a GPS device replaces
rather than augments police visual surveillance. In reaching its
decision, Washington’s highest court recognized the enormous
intrusive power of GPS devices to provide a detailed picture of an
individual’s daily life, stating that:
94
Id. However, more recently in State v. Meredith, 96 P.3d 342 (Or. 2004), the same court
found that the police’s warrantless use of a beeper on an employer’s vehicle, with the
employer’s consent, did not violate the employee’s privacy rights under Oregon’s constitution.
95
Campbell, 759 P.2d at 1048. American history over the past century provides a reasonable
basis for concerns relating to unlawful electronic surveillance of legitimate political activities.
See TAYLOR BRANCH, PILLAR OF FIRE: AMERICA IN THE KING YEARS 1963-65 (1998); DAVID J.
GARROW, THE FBI AND MARTIN LUTHER KING, JR. (1981). At the same, publicity surrounding
the use of electronic tracking devices can lead to irrational concerns. See Dunne v. Police
Department, 128 F. App’x 673 (9
th
Cir. 2005) (in which the plaintiff claimed that a GPS
device had been implanted in his left eye socket to render him a sex slave. The case was
dismissed because he was unable to prove the existence of the GPS implant).
96
State v. Jackson, 76 P.3d 217 (Wash. 2003) (en banc). Article I, § 7 of the Washington
Constitution provides that “[n]o person shall be disturbed in his private affairs, or his home
invaded, without authority of law.” WASH. CONST. art. I, § 7. 432 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
[U]se of GPS tracking devices is a particularly intrusive
method of surveillance, making it possible to acquire an
enormous amount of personal information about the citizen
under circumstances where the individual is unaware that
every single vehicle trip taken and the duration of every
single stop may be recorded by the government.
97
Two New York State trial courts have rendered conflicting
decisions regarding whether the New York State Constitution requires
the police to obtain a warrant prior to attaching a GPS device to a
vehicle. In People v. Lacey, one county judge, without articulating a
developed legal analysis, concluded in 2004 that a warrant was
required.
98
Last year, another county judge reached the opposite
conclusion based on the Knotts analysis that an individual does not
have a legitimate expectation of privacy while driving on public
roads.
99
In addition to state constitutional limitations regarding
governmental search and seizure, certain states have explicit
constitutional privacy provisions that may form the basis for future
challenges to governmental and private use of tracking devices. For
example, California Constitution, Art. 1, § 1 contains an explicit
reference to a right of privacy applicable to both private as well as
state conduct.
100
In 1970, Illinois, in direct response to the
development of new intrusive technologies, amended its constitution
to include an express provision protecting its citizens against invasions
of privacy, including the use of electronic surveillance.
101
Other states
97
Jackson, 76 P.3d at 224; see also State v. Kelly, 708 P.2d 820 (Haw. 1985) (in which the
Hawaii Supreme Court ruled that the police’s warrantless installation of a beeper in a
photograph album was both an unreasonable search and seizure under the Hawaiian
Constitution).
98
People v. Lacey, Indictment No. 2463N/02, 2004 WL 1040676 (Nassau, N.Y. County Ct.
May 6, 2004).
99
People v. Gant, 9 Misc. 3d 611 (Westchester, N.Y. County Ct. 2005).
100
The California Constitution states, “All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and liberty, acquiring,
possessing, and protecting property, and pursuing and obtaining safety, happiness, and
privacy.” CAL. CONST. art. 1, § 1.
101
The Illinois Constitution provides, “The people shall have the right to be secure in their
persons, houses, papers and other possessions against unreasonable searches, seizures,
invasions of privacy or interceptions of communications by eavesdropping devices or other
means. No warrant shall issue without probable cause, supported by affidavit particularly 2006] HERBERT 433
such as Hawaii, Alaska, and Florida have similar specific state
constitutional provisions protecting the right to privacy.
102
Nevertheless, it remains unclear how these various state
constitutional privacy provisions will be applied to new electronic
tracking devices. Unlike Oregon’s highest court, the California
Supreme Court in Hill v. NCAA, ruled that in order to be able to allege
a violation of California’s constitutional right to privacy, a plaintiff
must establish a violation of a reasonable expectation of privacy.
103
Under the standards set forth in Hill v. NCAA, a reasonable
expectation of privacy under the California constitution will be
determined by state judges based on a variety of objective
considerations, borrowed from the common law, including advanced
warning or consent, community customs, norms, and practices and the
physical setting of the particular activity.
104
Constitutional privacy
challenges in California to a fingerprint requirement for a driver’s
license and biometric finger-imaging requirement for public assistance
have been unsuccessful.
105
It remains to be seen whether the state
constitutional right to privacy in California will be interpreted to place
limitations on the use of electronic surveillance to track public
describing the place to be searched and the persons or things to be seized.” ILL. CONST. art. 1,
§ 6.
102
The Hawaiian Constitution states, “The right of the people to privacy is recognized and
shall not be infringed without the showing of a compelling state interest. The legislature shall
take affirmative steps to implement this right.” HAW. CONST. art. 1, § 6. Similarly, the
Alaskan Constitution states, "The right of the people to privacy is recognized and shall not be
infringed. The legislature shall implement this section." ALASKA CONST. art. I, § 22.
Likewise, the Florida Constitution states, “Every natural person has the right to be let alone
and free from governmental intrusion into the person's private life except as otherwise
provided herein. This section shall not be construed to limit the public's right of access to
public records and meetings as provided by law.” FLA. CONST. art. 1 § 23.
103
Hill v. Nat’l Collegiate Athletic Ass’n, 865 P.2d 633, 655 (Cal. 1994); see also State v.
Glass, 583 P.2d 872, 875 (Alaska 1978) (in which the Alaska Supreme Court explicitly
adopted Justice Harlan’s formulation in Katz to the Alaska’s state constitutional right to
privacy, making the law in Alaska similar to that of California in requiring that there be a
reasonable expectation of privacy before there can be a violation of the right to privacy).
104
Hill, 865 P.2d at 655.
105
Perkey v. Department of Motor Vehicles, 228 Cal. Rptr. 169 (1986) (finding that a
mandatory fingerprint requirement did not violate the U.S. Constitution, holding that the
requirement violated California statutory provisions, and declining to determine whether the
requirement violated the California Constitution); Sheyko v. Saenz, 5 Cal. Rptr. 3d 350 (Ct.
App. 2003). In addition, constitutional challenges on religious grounds to biometric imaging
have been rejected by state appellate courts in California and New York. Id.; Medvedev v.
Wing, 671 N.Y.S.2d 806 (N.Y. App. Div. 1998).434 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
activities. The extraordinary speed of technological innovation in the
field of human tracking has created constantly evolving legal, public
policy, and ethical challenges. The recent introduction of human
tracking implants into medicine, patient care, employment, and
recreation raises substantial questions regarding whether current law
provides an appropriate and satisfactory framework to protect
individual privacy and liberty.
II. THE LEGAL IMPLICATIONS OF HUMAN TRACKING IMPLANT
TECHNOLOGY
The development, marketing, and use of human subdermal RFID
and GPS implants raise challenging and new legal and ethical issues.
As early as 1985, California veterinarian Hannis L. Stoddard was
working on the development of an implantable identification chip for
use with animals.
106
Implanted RFID tracking devices are used
frequently in the identification of animals. The British company
Trovan, Ltd. markets various forms of implantable transponders and
readers throughout the world for animal and human identification.
107
GPS and RFID implants are being marketed for the monitoring,
control, identification, and return of domestic animals. Through GPS
technology, a pet owner can create a virtual fence for the pet and
receive email messages regarding its location.
108
Both Congress and state legislatures have enacted laws embracing
the use of RFID implants for domestic and farm animals. On
106
Hannis L. Stoddard, III, How AVID started, http://www.avidid.com/stoddard.html (last
visited May 17, 2006).
107
Trovan, Electronic Identification Systems, http://www.trovan.com/company.htm (last
visited May 17, 2006). One example of the ubiquitous use of Trovan products was observed
fortuitously during a 2005 family visit to Namibia where leopards have been implanted with
Trovan RFID devices as part of a concerted effort to preserve their endangered population.
During the same trip, I observed elephants with GPS devices around their necks as part of a
study of their migration patterns in southern Africa.
108
Anne Eisenberg, For the Fretting Pet Owner, a Wireless Distress Signal, N.Y. TIMES, July
15, 2004, available at
http://www.nytimes.com/2004/07/15/technology/circuits/15next.html?ex=1247630400&en=6
8121d87ca4dd70d&ei=5090&partner=rssuserland; Kathleen Megan, GPS designed to find
lost pets, notify owners, MIAMI HERALD, Feb. 12, 2006, available at
http://www.miami.com/mld/miamiherald/living/home/pets/13843615.htm. The ScheringPlough Animal Health Corporation markets the HomeAgain® pet recovery service that
utilizes RFID implants. See HomeAgain® Pet Recovery Service, HomeAgain Information
Center, http://www.homeagainpets.com/.2006] HERBERT 435
November 10, 2005, President George W. Bush signed into the law the
Agriculture, Rural Development, Food and Drug Administration, and
Related Agencies Appropriations Act, 2006.
109
This Act mandates
and funds the establishment of a national RFID animal microchip
system, as well as requires the United States Department of
Agriculture to promulgate regulations regarding the system.
110
Various states including Minnesota, Oregon, New York, and
Colorado have codified procedures for implanting microchips in
dangerous or potentially dangerous dogs.
111
The first known experiment regarding the use of a human tracking
implant took place at the University of Reading in England in 1998.
112
Professor of Cybernetics, Kevin Warwick, had an RFID tracking
device implant placed in his arm that enabled him to monitor his
movements on campus for one week.
113
An expressed purpose for the
experiment was to demonstrate the inherent dangers to personal
privacy connected with implant technology.
114
Dr. John D. Halamka, the Chief Information Officer for the
Harvard Medical Center, has conducted a more recent and longer
experiment in the use of a voluntary human RFID implant containing a
16-digit medical identifier.
115
With the use of a handheld RFID
transponder, Dr. Halamka’s implanted identifier can be obtained and
used to discover his identity and his doctor through an internet site
maintained by the manufacturer.
116
Significantly, the implant does not
include any medical history or any known disabilities and is not
equipped to monitor Dr. Halamka’s location. His willingness to
109
Agriculture, Rural Development, Food and Drug Administration, and Related Agencies
Appropriations Act, 2006, Pub. L. No. 109-97, 119 Stat. 2120 (2005).
110
Id.
111
MINN. STAT. § 347.515 (2006); OR. REV. STAT. § 609.168 (2006); COLO. REV. STAT. § 18-
9-204.5(3)(e.5) (2006); N.Y. AGRIC. & MKTS. LAW § 121(2) (Consol. 2006).
112
Technology gets under the skin, BBC NEWS, Apr. 24, 1998,
http://news.bbc.co.uk/1/hi/sci/tech/158007.stm.
113
Id.
114
Id.; See also The University of Reading, Professor Kevin Warwick,
http://www.kevinwarwick.org (last visited May 17, 2006).
115
John Halamka, Straight from the Shoulder, 353 NEW ENG. J. MED. 331, 331-332 (2005).
116
Id. at 331. 436 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
participate in the experiment was an outgrowth of Dr. Halamka’s
experiences as an emergency room resident when he was unable to
determine the identification of patients.
117
In his article, Dr. Halamka
acknowledges the possibility that the implant can lead to invasion of
privacy due to the non-use of encryption technology, the unauthorized
use of transponders and hacking.
118
In response to claims by others
that human implant chips are Orwellian in nature, Dr. Halamka
concedes: “I have not investigated these or other moral, religious, or
political implications of having an implanted identifier.”
119
The American company, Applied Digital Solutions, Inc., is
aggressively marketing its RFID VeriChip™ human implant to
hospitals and doctors in the United States for the same emergency
room purposes articulated by Dr. Halamka. Last year, a New Jersey
hospital was the first to commence the regular scanning of emergency
room patients for a medical identification number contained in the
microchip.
120
Approximately 80 hospitals and medical centers in the
United States have since agreed to utilize the RFID implant system.
121
This hospital based marketing has succeeded in persuading patients to
consent to receiving implants.
122
Other hospitals around the country
have received RFID scanners and may begin utilizing the technology
in their emergency rooms.
123
In general, the marketing and publicity surrounding these implant
products focus on the purported convenience, security, and the ability
to alleviate fear. The impact on personal privacy, the products’
reliability, and the interception of data by third parties has not received
similar coverage. However, the recent scholarly paper describing the
potential vulnerability of RFID technology to cyber viruses and worms
117
Id.
118
Id. at 332.
119
Id. at 333.
120
Rob Stein, Use of Implanted Patient-Data Chips Stirs Debate on Medicine vs. Privacy,
WASH. POST, Mar. 15, 2006, at A1.
121
Press Release, Verichip Corp., 172 New Physicians Elect to Offer VeriMed ID System to
Patients (Mar. 20, 2006), http://www.verichipcorp.com/news/1142883972.
122
Halamka, supra note 113, at 333; Cristina Odone, How We’ll Keep Tags on the Old Folk,
OBSERVER, Mar. 19, 2006, http://observer.guardian.co.uk/comment/story/0,,1734263,00.html.
123
Halamka, supra note 115, at 333. 2006] HERBERT 437
may constitute a powerful antidote to the impact of the hypermarketing of implants through hospitals and doctors.
124
The aggressive promotion of human implant products in the
United States and abroad utilize standard advertising techniques. In
addition to utilizing hospitals and medical professionals as promoters,
the product is being marketed for both security and recreational
purposes. RFID implants are being publicized as a mere technological
extension to the body-piercing trend that permits bodily integration
with computers. A technology entrepreneur who volunteered for
implants in both hands admitted to the New York Times “the
symbolism of the tag is much more of a big deal as a social
marker.”
125
A website has been established in an effort to expand this
social phenomenon of voluntary technological branding.
126
RFID
implants are also being marketed for voluntary use by tavern patrons
to avoid having to pay with cash or credit cards and for computer users
who cannot remember their passwords.
127
Others, with an economic
interest in the technology, have publicly volunteered to receive
implants as part of a marketing strategy.
128
At least one United States employer, an Ohio surveillance
company, recently announced that two of its employees have received
RFID implants for identification purposes.
129
However, it remains
124
Rieback, Crispo & Tanenbaum, supra note 13.
125
Anna Bahney, High Tech, Under the Skin, N.Y. TIMES, Feb. 2, 2006, at G1 (quoting Amal
Graafstra, the first known person to independently have himself implanted with a chip).
126
The “Tagged” RFID implant forums, http://tagged.kaos.gen.nz (last visited May 17, 2006).
127
Chetna Purohit, Technology Gets Under Clubbers’ Skin, CNN, June 9, 2004,
http://www.cnn.com/2004/WORLD/europe/06/09/spain.club; Auslan Cramb, Microchip to
Allow Wallet-Free Drinking, TELEGRAPH, Jan. 17, 2005,
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/01/17/nchip17.xml&sSheet=/n
ews/2005/01/17/ixhome.html; Jamie McGeever, Computer chips get under skin of enthusiasts,
REUTERS, Jan. 6, 2006, http://www.abc.net.au/news/newsitems/200601/s1542754.htm.
128
Amal Graafstra, the owner of a technology company has received implants in both hands
and has authored a book setting forth “cool projects” connected with RFID products. Bahney,
supra note 123; McGeever, supra note 125. Law Professor Patricia J. Williams has
questioned whether the announcement by VeriChip board member and former United States
Secretary of Health and Human Services Tommy Thompson, of his intent to receive a GPS
implant was related to a marketing strategy. Patricia J. Williams, Telly-Tommy, THE NATION,
Aug. 15-22, 2005, at 13.
129
Richard Waters, US Group Implants Electronic Tags In Workers, FIN. TIMES, Feb. 12,
2006, http://news.ft.com/cms/s/ec414700-9bf4-11da-8baa-0000779e2340.html. 438 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
unclear whether acceptance of the implants was mandated by the
employer or was volitional.
130
In Mexico, the Verichip™ has been
implanted in government officials for access to a secure government
building and non-government volunteers have received implants in
response to their fear of being kidnapped.
131
In 2005, Qustar Ltd.
announced a plan to commence marketing to parents two models of
implantable GPS devices aimed at responding to parental fears of child
abductions.
132
The development, marketing, and use of human RFID and GPS
implants raise important legal and ethical issues.
133
Transferring the
application of implant technology from animal chattel to humans, for
the same purposes of identification and location control, creates the
specter of geoslavery that may be violative of the Thirteenth
Amendment. At present, however, the legal ramifications regarding
human implants, including the legality of government or privately
mandated implants, remains undeveloped.
It is improbable that a government program requiring human
implants for non-criminals would be found to be lawful. Such a
mandate would run afoul of Supreme Court due process jurisprudence
and precedent establishing a constitutionally protected right to privacy
against governmental intrusions into intimate personal affairs.
134
Mandated government intrusions into the human body implicate
130
Id.
131
Josh McHugh, A Chip in Your Shoulder: Should I get an RFID Implant?, SLATE, Nov. 10,
2004, http://www.slate.com/id/2109477.
132
Quastar Ltd., Ending the Tragedy of America’s Missing Children,
http://64.233.161.104/search?q=cache:HFFSy7MngssJ:www.qustar.com/ver1/news/announce
s.php+implantable+gps+Qustar+Ltd.&hl=en&ct=clnk&cd=1 (last visited May 15, 2006).
133
Edmundson, supra note 6; Dobson & Fisher, supra note 64.
134
See Rochin v. California, 342 U.S. 165 (1952) (reversing conviction of the defendant based
on evidence obtained through police action forcing him to vomit up drug capsules. The Court
held that the evidence was obtained by methods volative of the Due Process Clause of the
Fourteenth Amendment); Griswold v. Connecticut, 381 U.S. 479 (1965) (invalidating a state
law prohibiting the use of contraceptive devices based on a constitutional right to privacy
premised on various provisions of the Bill of Rights); Lawrence v. Texas, 539 U.S. 558 (2003)
(invaliding a state anti-sodomy law as an unconstitutional abridgement of the right to privacy);
see also Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260 (9th Cir. 1998)
(recognizing a constitutional right to privacy cause of action against a federally-funded
research laboratory that conducted unconsented testing for traits of sickle cell anemia,
syphilis, and pregnancy). 2006] HERBERT 439
substantial liberty interests protected under the Due Process Clause of
the 14
th
Amendment.
135
In Rochin v. California, the Court held that the police violated the
due process rights of a drug suspect when they compelled an
involuntary pumping of his stomach in order to seize two capsules
containing drugs that he had swallowed.
136
Justice Felix Frankfurter,
writing for the majority, emphasized the significance of coerced
governmental intrusions into the body:
This is conduct that shocks the conscience. Illegally
breaking into the privacy of the petitioner, the struggle to
open his mouth and remove what was there, the forcible
extraction of his stomach’s contents--this course of
proceeding by agents of government to obtain evidence is
bound to offend even hardened sensibilities. They are
methods too close to the rack and the screw to permit of
constitutional differentiation.
137
Under the Fourth Amendment, the Court treats all physical
intrusions by governmental officials into a human body as a search
and seizure because it violates an expectation of privacy recognized by
our society. This reasonable expectation of privacy against unwanted
bodily intrusions is balanced against the articulated legitimate
governmental interest to determine whether the search was
unreasonable.
138
The application of this balancing test is very
different when “special needs, beyond the normal need for law
enforcement, make the warrant and probable-cause requirement
impracticable.”
139
When the “special needs” concerns are not related
to crime detection, courts will make a context-specific inquiry
balancing the competing private and public interests.
140
135
See Washington v. Harper, 494 U.S. 210, 222 (1990); Cruzan v. Director, Mo. Dept. of
Health, 497 U.S. 261, 278 (1990).
136
Rochin, 342 U.S. at 172-173.
137
Id. at 172.
138
Skinner v. Railway Labor Executives Association, 489 U.S. 602, 619 (1989).
139
Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (quoting New Jersey v. T.L.O., 469 U.S.
325, 351 (1985) (Blackman, J., concurring in judgment)).
140
Chandler v. Miller, 520 U.S. 305, 314 (1997). 440 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
For example, mandatory drug and alcohol testing programs in
employment and public schools have been upheld under the Fourth
Amendment based on special safety needs that outweighed the
reasonable expectation of privacy against such bodily intrusions.
141
In
contrast, a state hospital policy, established with the aid of the police,
under which non-consenting pregnant patients were subjected to urine
drug tests and were subject to criminal prosecution if they tested
positive for cocaine, was struck down as a violation of the Fourth
Amendment.
142
In 1997, the Supreme Court invalidated on Fourth
Amendment grounds a state law mandating that state political
candidates certify that he or she has taken a drug test and that the
result was negative.
143
In striking down the statute, the Supreme Court
found that the State lacked any special need based on the lack of
evidence demonstrating a drug problem among elected state officials
or that they performed safety sensitive job duties.
144
Based on the sustained nature of an implant’s intrusion into the
body, it is improbable that the courts, in most situations, would find
that a special government interest outweighs the liberty and privacy
interests protected under the United States Constitution. Nevertheless,
police use of a scanner to obtain the identity of a lawfully stopped
individual with an implant may not constitute a violation of the Fourth
Amendment. In Hiibel v. Sixth Judicial District Court, the Supreme
Court held that a Nevada law requiring a person, upon being stopped
by the police, to identify himself to the police did not violate the
Fourth Amendment.
145
In upholding the law, the Court reasoned that
such a request for identification is reasonable in the context of a police
stop.
146
It remains to be seen whether police scanning of an
individual’s RFID implant for identification information will be
141
Skinner v. Railway Labor Executives Association, 489 U.S. at 618-621; National Treasury
Employees Union v. Von Raab, 489 U.S. 656 (1989) (upholding the use of drug testing for
government employees as a condition of promotion or transfer to certain positions directly
involving drug interdiction or requiring the employee to carry a firearm); Vernonia School
District 47J v. Acton, 515 U.S. 646 (1995) (upholding random drug testing for high school
students participating in interscholastic sports).
142
Ferguson v. City of Charleston, 532 U.S. 67 (2001).
143
Chandler, 520 U.S. at 323.
144
Id. at 321-322.
145
Hiibel v. Sixth Judicial Circuit of Nevada, 542 U.S. 177 (2004).
146
Id. at 188. 2006] HERBERT 441
deemed by the courts to constitute an extension of the holding in
Hiibel or be construed as a bodily intrusion subject to the Fourth
Amendment.
Without new legislation banning the practice, the common law tort
of assault and battery, as well as the Thirteenth Amendment, would
form the bases for challenging privately mandated human tracking
implants. In Schloendorff v. Society of New York Hospital, the New
York Court of Appeals recognized that “[e]very human being of adult
years and sound mind has a right to determine what shall be done with
his own body.”
147
When someone is subjected to unwanted nonemergency surgery, they have the right to sue for damages for
assault.
148
Mandated human RFID implants that contain confidential medical
information may also violate the confidentiality provisions of the
Health Insurance Portability and Accountability Act (HIPAA) and the
Americans with Disabilities Act (ADA).
149
A mandate that medical
information protected under HIPAA be made accessible through an
RFID implant to anyone with an appropriate reader would violate
HIPAA’s confidential provisions.
150
To the extent that an employer
mandates implants for employees containing confidential medical
information would render the employer vulnerable to liability based on
the ADA’s confidentiality requirements with respect to medical
records.
151
For at least a decade, electronic wrist and ankle bracelets have
been required as a condition of house arrest, probation, and parole to
enable officials to keep track of the offenders in and outside the home.
Individuals under house arrest, along with probationers and parolees,
are granted “conditional liberty” subject to special and unique
restrictions including a significantly reduced expectation of privacy.
152
Due to the limitations connected with the radial scope of RFID
technology, electronic bracelets utilizing GPS technology are
increasingly being utilized throughout the country.
147
Schloendorff v. Society of New York, 105 N.E. 92, 93 (1914).
148
Id.
149
See 42 U.S.C. § 1320d-2; 42 U.S.C. § 12112(d) (2006).
150
Id.
151
See 29 C.F.R. §§ 1630.14(b)(1), (d)(1) (2006).
152
Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) (quoting Morrisey v. Brewer, 408 U.S.
471, 480 (1972)); see United States v. Knights, 534 U.S. 112, 119-120 (2001). 442 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
As a practical matter, most people convicted of a crime would
prefer electronic location monitoring to incarceration. This alternative
to prison serves various societal interests because it is less expensive
and grants the offender a greater opportunity to engage in
rehabilitative activities.
The criminal population most vulnerable to a potential program of
mandated human tracking implants is those convicted of sex crimes.
In Ohio, a county official and sheriff have stated their support for the
use of implants to monitor ex-convicts.
153
Due to heightened fear
regarding recidivism by sex offenders, various states have enacted or
are considering laws mandating lifetime electronic location monitoring
for sex offenders.
154
In Wisconsin, the cost for implementing a 24
hour GPS tracking system for sex offenders has been estimated at
$477 million over 20 years.
155
It may be only a matter of time before
elected officials begin calling for the use of tracking implants on many
different types of criminal convicts.
156
Whether the Court will deem the use of tracking implants for
inmates and other convicts to be violative of due process remains to be
seen. Even when prison officials intrude on substantial liberty
interests of prisoners, the regulation will be upheld as long as it is
“reasonably related to legitimate penological interests.”
157
Although electronic bracelets have been utilized successfully, the
fact that they are less intrusive than electronic implants does not
preclude the possibility that human electronic implants will be found
to be reasonable under the Fourth Amendment when applied to
153
Mary Lolli, Official: Implant Chips Into Offenders, CINCINNATI POST, Mar. 29, 2005, at
A5.
154
Jim McKay, Electronic Tether, GOV’T TECH., Feb. 2, 2006,
http://www.govtech.net/magazine/channel_story.php/98310; Matthew Mosk, A Lone Voice
Against Sex Offender Bill, WASH. POST, Mar. 25, 2006, at B1, available at
http://www.washingtonpost.com/wp-dyn/content/article/2006/03/24/AR2006032401918.html.
155
Steven Walters, GPS tracking sought for sex offenders, MILWAUKEE J. SENTINEL, Mar. 30,
2006 available at http://www.jsonline.com/story/index.aspx?id=412260.
156
State mandated location information regarding criminals can have gruesome consequences.
In April 2006 two Maine sex offenders were murdered by an individual who located them
through Maine’s sex offender registry demonstrating that reduced location privacy can
transform a perceived or actual human predator into prey. Emily Bazar, Suspected shooter
found sex offenders’ homes on website, USA TODAY, Apr. 18, 2006, available at
http://www.usatoday.com/news/nation/2006-04-16-maine-shootings_x.htm.
157
Washington v. Harper, 494 U.S. 210, 223-224 (quoting Turner v. Safley, 482 U.S. 78, 89
(1987)). 2006] HERBERT 443
criminal offenders. In a series of Fourth Amendment decisions, the
Supreme Court has been dismissive of arguments premised on the
mere existence of less intrusive means.
158
Under the Fourth
Amendment special needs and general balancing tests, federal courts
have sustained state laws mandating the extraction of DNA samples
from the bodies of various classes of convicted offenders to be utilized
in a computerized DNA database.
159
In any challenge to possible
future use of human implants on criminal offenders, strong national
evidence will have to be presented to a court demonstrating the
success of the less intrusive electronic bracelets along with evidence
establishing that implanted GPS technology is not more accurate or
reliable than data stemming from a bracelet.
As a practical matter, the best means of establishing informed
public policy with respect to implant technology is through a
deliberative legislative process on the national, state, and local levels
along with informed and reasoned public debate. The article next
discusses the congressional response to the development and use of
other forms of human tracking technology over the past twenty years.
The lack of substantial legislative movement in the field of tracking
technology renders it unlikely that there will be a federal legislative
response to human implants in the near future.
III. FEDERAL LEGISLATIVE RESPONSES TO HUMAN TRACKING AND
CELLULAR TECHNOLOGY
In response to the development of electronic technology, Congress
has enacted legislation placing certain restrictions on the use of
tracking technologies by federal law enforcement. The protection of
privacy against the use of various forms of new technologies,
however, has not been a major congressional priority.
In 1986, Congress passed the Electronic Communications Privacy
Act of 1986 (“ECPA”). The ECPA includes a specific provision
regarding federal law enforcement use of mobile tracking devices to
monitor the movement of an individual or object.
160
The purpose of
158
See Illinois v. Lafayette, 462 U.S. 640, 647 (1983); United States v. Martinez-Fuerte, 428
U.S. 543, 556-557 n. 12 (1976).
159
See Nicholas v. Goord, 430 F.3d 652, 671 (2d Cir. 2005); United States v. Kincade, 379
F.3d 813 (9th Cir. 2004) (en banc), cert. denied, 544 U.S. 924 (2005); Green v. Berge, 354
F.3d 675, 679 (7th Cir. 2004).
160
18 U.S.C. § 3117 (2006). 444 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
the law was jurisdictional in nature. It did not place any expressed
substantive limits on the use of tracking devices, require the
suppression of evidence for statutory violations, or provide for any
privacy protections beyond those recognized under the Fourth
Amendment.
161
The ECPA does include statutory mandates requiring federal law
enforcement to apply before a federal judge for issuance of a search
warrant based on probable cause or a court order based on a lesser
standard when it seeks the release of certain forms of subscriber
information from a wireless company.
162
Title III of ECPA establishes
procedures relating to the use of pen registers and trap/trace devices,
commonly referred to as a caller identification system, by federal law
enforcement to capture the phone numbers of outgoing and incoming
calls.
163
In 1994, Congress enacted the Communications Assistance
for Law Enforcement Act prohibiting wireless providers from
disclosing “any information that may disclose the physical location of
the subscriber” based on call-identification information acquired
through the government’s use of a pen register or trap/trace device.
164
In 1999, Congress enacted the Wireless Communications and
Public Safety Act that contains an express limitation on the use or
disclosure by telecommunication companies of call location
information regarding mobile service customers.
165
Litigation
challenging the FCC regulations with respect to the nature of
consumer authorization required for the disclosure of location
information has substantially muddled the enforceability of this
location privacy provision.
166
The unwillingness of the Federal
161
See United States v. Forest, 355 F.3d 942, 950 (6
th
Cir. 2004); United States v. Gbemisola,
225 F.3d 753, 758 (D.C. Cir. 2000), cert. denied, 531 U.S. 1026 (2000); In re Application for
Pen Register and Trap/Trace Device with Cell Site Location Auth., 396 F. Supp 2d 747, 751-
753 (S.D. Tex. 2005); Otterberg, supra note 6, at 679.
162
18 U.S.C. §§ 2703(a)-(d) (2006).
163
18 U.S.C. §§ 3121-27 (2006).
164
18 U.S.C. §3122(b)(2) (2006); In re Application of the United States for an Order
Authorizing the Installation and Use of a Pen Register and a Caller Identification System on
Telephone Numbers [Sealed] and [sealed] the Production of Real Time Cell Site Information,
402 F. Supp 2d 597, 603 (D. Md. 2005) (quoting 47 U.S.C. § 1002(a)(2)).
165
47 U.S.C. § 222(f) (2006).
166
See Edmundson, supra note 6, at 219-224; Brendan J. Koerner, Your Cellphone Is A
Homing Device, LEGAL AFF., July/Aug. 2003, at 30. 2006] HERBERT 445
Communication Commission to promulgate rules aimed at clarifying
the scope of the statute’s protection of customer location privacy may
undermine confidence in the little known statutory provision.
167
Despite this continued lack of clarity related to consumer consent,
United States District Court Magistrate Stephen William Smith has
concluded that the statute places location information into “a special
class of customer information, which can only be used or disclosed in
an emergency situation, absent express prior consent by the customer.
Based on this statute, a cell phone user may very well have an
objectively reasonable expectation of privacy in his call location
information.”
168
Despite the lack of clarity in governing cellular
tracking, these protections surpass the protections for consumers
utilizing non-cellular forms of wireless products containing GPS
technology, who are not currently protected by any statutory location
privacy protections.
169
The narrow contours of current federal concerns relating to privacy
intrusions resulting from new technologies are confirmed by the
provisions of the Video Voyeurism Prevention Act of 2004.
170
The
bill amended the federal criminal law to prohibit the use of cell phone
cameras and concealed miniature cameras on federal property to
capture an image of the “private area” of a non-consenting
individual.
171
The law was enacted without congressional hearings
and was based on anecdotal evidence regarding the use of the new
technology to post on the internet sexually explicit or provocative
images secretly recorded in locker rooms and other undressing
areas.
172
In criminalizing the prurient use of new technology on federal
property, Congress codified a very narrow definition of the reasonable
expectation of privacy standard:
167
In the Matter of Request by Cellular Telecommunications and Internet Association to
Commence Rulemaking to Establish Fair Location Information Practices F.C.C. 02-208
(2002), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-208A1.pdf.
168
In re Application for Pen Register and Trap/Trace Device with Cell Site Location
Authority, 396 F. Supp 2d at 757.
169
Anne Broache, Wireless Location Tracking Draws Privacy Questions, CNET NEWS.COM,
May 16, 2006, http://news.com.com/2100-1028_3-6072992.html.
170
18 U.S.C. § 1801 (2006).
171
18 U.S.C. § 1801(a), (b) (2006).
172
H.R. REP. NO. 108-504, at 3 (2004), as reprinted in 2004 U.S.C.C.A.N. 3292, 3293. 446 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
A) circumstances in which a reasonable person would
believe that he or she could disrobe in privacy, without
being concerned that an image of a private area of the
individual was being captured; or
B) circumstances in which a reasonable person would
believe that a private area of the individual would not
be visible to the public, regardless of whether that
person is in a public or private place.
173
The federal codification of this reasonable expectation of privacy
standard without input during public hearings from those victimized
by such privacy intrusions, legal scholars, prosecutors, criminal
defense attorneys, and privacy advocates is indicative of the limited
legislative concern regarding the impact of new technological devices
on privacy.
In contrast to the congressional focus on the possible capture and
use of sexual images obtained in federal buildings and parks, a bill
introduced by Congressman Kendrick Meek on May 20, 2004 in the
108th Congress to require the designation of a senior official within
the United States Office of Management of Budget as the chief
privacy officer for the federal government, as well as the designation
of privacy officers for every federal department, died after being
referred to the Subcommittee on Technology, Information Policy,
Intergovernmental Relations and the Census.
174
Under the proposed
legislation, the federal chief privacy officer would have been
responsible for insuring that the technology utilized by the federal
government did not erode privacy protections.
175
Congress has also been resistant to enacting legislation aimed at
placing limitations on the ability of employers to impose electronic
workplace tracking. In 1993, the Privacy for Consumers and Workers
Act was introduced in Congress seeking to set limitations on the use of
tracking technology in the workplace, including mandating written
173
18 U.S.C. § 1801(b)(5)(A)-(B) (2006).
174
Strengthening Homeland Innovation to Emphasize Liberty, Democracy, and Privacy Act,
H.R. 4414, 108
th
Cong. (2004), available at
http://www.govtrack.us/congress/bill.xpd?bill=h108-4414; see GovTrack.us, Status of H.R.
4414[108]: SHEILD Privacy Act, http://www.govtrack.us/congress/bill.xpd?bill=h108-4414
(last visited Apr. 10, 2006).
175
H.R. 4414, § 3(b)(1).2006] HERBERT 447
notification to employees regarding the surveillance.
176
The bill died
in committee.
177
One year later, in 2000, the Notice of Electronic
Monitoring Act was introduced.
178
The proposed legislation sought to
amend the ECPA to mandate employers to provide written notice to
employees regarding employer use of tracking technology.
179
Congress never acted upon the bill.
180
In the face of federal legislative inertia, along with adverse federal
court decisions under the Fourth Amendment, it is far more likely that
varied public policy solutions in the field of privacy and technology
will be developed at the state level.
IV. STATE COMMON AND STATUTORY LAW RESPONSE TO
ELECTRONIC HUMAN TRACKING
A. THE APPLICATION OF STATE TORT LAW
Since the 19
th
Century, various state courts have recognized
common law invasion of privacy torts that may be applicable to the
use of electronic tracking devices. There are four distinct privacy torts
recognized today in many states: (a) unreasonable intrusion upon the
seclusion of another; (b) appropriation of another’s name or likeness;
c) unreasonable publicity given to another's private life; (d) publicity
that unreasonably places the other in a false light before the public.
181
Privacy torts grant individuals the right to bring a lawsuit for damages
usually in state court against the person who invaded the individual’s
privacy.
176
Jill Yung, Big Brother IS Watching: How Employee Monitoring in 2004 Brought Orwell’s
1984 to Life and What the Law Should Do About It, 36 SETON HALL L. REV. 163, 205-206
(2005).
177
Id. at 206.
178
Id. at 207.
179
Id.
180
Id. at 208.
181
RESTATEMENT (SECOND) OF TORTS §§ 652A-E (1977); see, e.g., Johnson v. Stewart, 854
So.2d 544, 547-548 (Ala. 2003); Hamberger v. Eastman, 206 A.2d 239, 241 (N.H. 1964). 448 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
The privacy tort with the strongest relevance to the use of location
tracking devices is the intrusion on seclusion tort.
182
The Restatement
(Second) of Torts § 652B defines the tort of intrusion on seclusion in
the following manner:
One who intentionally intrudes, physically or otherwise,
upon the solitude or seclusion of another or his private
affairs or concerns, is subject to liability to the other for
invasion of his privacy, if the intrusion would be highly
offensive to a reasonable person.
183
This privacy tort is not limited to the physical trespass into another
person’s home or other physical space. It has been found applicable to
attempted eavesdropping on private conversations with or without the
use of technological devices.
184
The viability of this type of lawsuit challenging the per se use of
electronic tracking devices to follow another person outside the home
remains dubious.
185
Comment (c) to the Restatement (Second) of
Torts § 652B states that there can not be liability for observing or
photographing another person while he or she is walking on a public
street because the person is not in seclusion.
186
In 2005, the Connecticut Appellate Court issued the first appellate
decision considering an intrusion upon seclusion claim based on the
use of a GPS device.
187
In Turner v. American Car Rental, Inc., a
rental company had installed a global positioning system in its
vehicles as a means of controlling and punishing drivers for exceeding
a set speed limit.
188
Under the company’s policy and practice, the
vehicle’s GPS receiver transmitted the speed and location of the
182
See Waseem Karim, The Privacy Implications of Personal Locators: Why You Should
Think Twice Before Voluntarily Availing Yourself to GPS Monitoring, 14 WASH. U.J.L. &
POL’Y 485, 496-497 (2004); Aaron Renenger, Satelitte Tracking and the Right to Privacy, 53
HASTINGS L.J. 549, 558 (2002).
183
RESTATEMENT (SECOND) OF TORTS § 652B (1977).
184
See Hamberger, 206 A.2d at 241.
185
Karim, supra note 182, at 497.
186
RESTATEMENT (SECOND) OF TORTS § 652B cmt. c (1977).
187
Turner v. American Car Rental, 884 A.2d 7 (Conn. App. Ct. 2005).
188
Id. at 9. 2006] HERBERT 449
vehicle to a monitoring company that in turn faxed the results to the
rental company.
189
In its form lease, the company stated that each
rental vehicle contained a GPS receiver and set as a contractual
condition that each time the rented vehicle exceeded 79 miles per hour
for two minutes or longer, the leaser would be fined $150.00.
190
In
dismissing the invasion of privacy tort action, the Connecticut
appellate court concluded that it was unaware of any legal precedent
establishing that the installation of a GPS device in a car violates the
privacy rights of the driver or that that driver has an expectation of
privacy on a public highway.
191
The Supreme Court’s conclusion in United States v. Knotts, that
there is no reasonable expectation of privacy with respect to one’s
location while driving,
192
led a United States District Court judge to
dismiss an employee’s intrusion upon seclusion claim against his
employer for monitoring him through the installation of a GPS device
in the company vehicle that the employee used during work and
during non-work hours.
193
In Illinois, an appellate court affirmed the dismissal of a class
action lawsuit brought by cell phone users against a large cellular
phone service company for intrusion upon seclusion based on the
company providing, to a research firm, specific information regarding
its cell phone customers, including their names, telephone numbers,
addresses, and social security numbers.
194
The Illinois appellate court
emphasized that in order to state a claim for intrusion upon seclusion,
plaintiffs must allege private facts and that none of the information
provided to the research company constituted private information.
195
189
Am. Car Rental v. Comm’r of Consumer Prot., 869 A.2d 1198, 1202 (Conn. 2005)
(affirming state administrative sanctions against the same company for an unlawful liquidated
damages provision contained in the rental agreement).
190
Id. at 1201-1202.
191
Turner, 884 A.2d at 11.
192
United States v. Knotts, 460 U.S. 276, 281 (1983).
193
Elgin v. St. Louis Coca-Cola Bottling Co., No. 4:05CV970, 2005 WL 3050633, at *4 (E.D.
Mo. Nov. 14, 2005).
194
Busse v. Motorola, 813 N.E.2d 1013, 1018 (Ill. App. Ct. 2004), appeal denied, 829 N.E.2d
786 (Ill. 2005).
195
Id. at 1017; see also Nader v. General Motors, 255 N.E.2d 765, 769 (N.Y. 1970) (stating,
“It should be emphasized that the mere gathering of information about a particular individual
does not give rise to a cause of action under this theory. Privacy is invaded only if the450 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
Similarly, an intrusion upon seclusion action in Ohio against an
employer for videotape surveillance of an employee was dismissed
because the videotaping was limited to the employee’s public
activities.
196
In 2003, the New Hampshire Supreme Court affirmed the
dismissal of an intrusion upon seclusion cause of action against an
internet-based investigation and information service company that had
obtained employment information about the plaintiff’s daughter, Amy
Boyer, by making a pre-textual call to Ms. Boyer.
197
After obtaining
the information, the company provided it to a New Hampshire man
named Liam Youens who had ordered it over the internet for $109.
198
After receiving the employment information from the company,
Youens went to Ms. Boyer’s workplace and shot her dead before he
committed suicide.
199
In dismissing the mother’s intrusion upon
seclusion claim in Remsburg v. Docusearch, the New Hampshire
Supreme Court specifically relied upon the public exposure exception
to the right to privacy:
A person’s employment, where he lives, and where he works
are exposures which we all must suffer. We have no
reasonable expectation of privacy as to our identity or as to
where we live or work. Our commuting to and from where
information sought is of a confidential nature and the defendant's conduct was unreasonably
intrusive. Just as a common-law copyright is lost when material is published, so, too, there
can be no invasion of privacy where the information sought is open to public view or has been
voluntarily revealed to others.”).
196
York v. Gen. Elec., 759 N.E.2d 865 (Ohio Ct. App. 2001), compare Johnson v. Corporate
Special Services, 602 So.2d 385, 388 (Ala. 1992) (holding that a special investigator hired by
an employer to investigate an employee was not intrusion upon seclusion because the
investigator did not monitor the employee within the employee’s house), and Jackson v.
Playboy Enterprises, 574 F. Supp. 10, 13 (S.D.Ohio 1983) (holding that the unconsented
publication of a photograph taken in a public place did not create a claim for intrusion upon
seclusion).
197
Remsburg v. Docusearch, 816 A.2d 1001, 1009 (N.H. 2003). However, the court found
merit to the plaintiff’s state consumer protection claim against the company and remanded that
claim to the lower court.
198
Id. at 1005-06.
199
Id. at 1006.2006] HERBERT 451
we live and work is not done clandestinely and each place
provides a facet of our total identity.
200
Nevertheless, based on societal concerns regarding the dangers of
stalking and identity theft in the new technological age, the New
Hampshire court ruled that if criminal misconduct against a third
person is sufficiently foreseeable, an investigator has a legal obligation
to exercise reasonable care when disclosing that person's personal
information to a client.
201
B. STATE STATUTORY LIMITATIONS ON ELECTRONIC TRACKING
DEVICES
Many states have enacted legislation aimed at restricting the use of
electronic devices by members of the public and the police. Other
states are considering similar limitations on the use of such devices in
vehicles.
202
Most of these measures are aimed at creating new
criminal prohibitions or procedures and expanding consumer
protections with respect to rental companies. Due to the speed of
technological change, the pace of legislative deliberations and the
intricacy of the technology, these legislative measures have not
included responses to human implants and cellular technology.
Furthermore, state initiatives aimed at regulating location surveillance
in the workplace have been unsuccessful.
203
In response to court decisions upholding the constitutionality of
the warrantless use of tracking devices by police, various states have
enacted laws requiring law enforcement officials to apply to a court
for a judicial warrant before installing such devices. Many of these
statutes place specific time limits on the period of authorization.
204
200
Id. at 1009 (quoting Webb v. City of Shreveport, 371 So.2d 316, 319 (La. Ct. App. 1979).
201
Id. at 1008.
202
See, e.g., States Focus on ‘Black Boxes’ in Vehicles, N.Y. TIMES, Mar. 27, 2005, at 16.
203
Yung, supra note 174, at 209-210 (citing proposed laws in California, Massachusetts,
Pennsylvania and other states that would have obligated employers to provide employees with
written notice regarding the use of tracking devices).
204
UTAH CODE ANN. § 77-23a-15.5(7) (2006); 18 PA. CONS. STAT. ANN. § 5761(e) (2005). 452 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
Other states have enacted laws regulating the use of tracking devices
for criminal offenders subject to house arrest, probation, or parole.
205
In 1998, California Legislature enacted a criminal statute
prohibiting the use of “an electronic tracking device to determine the
location or movement of a person.”
206
The statute defines the phrase
“electronic tracking device” as a device “attached to a vehicle or other
movable thing that reveals its location or movement. . .”
207
The
legislation contains two consent exceptions: when the owner, leasor,
or leasee of a vehicle has consented to the use of the device and lawful
use by law enforcement.
208
In addition, California has enacted
consumer legislation limiting the use of GPS technology by rental
companies. Under this law, rental companies are permitted to install
GPS technology in their vehicles but are prohibited from using the
electronic data to impose surcharges or fines.
209
Similar consumer
legislation regarding rental companies has been enacted in other
states.
210
A recently enacted California law has embraced the use of RFID
and biometric technologies as a means of reasonably accommodating
the visually impaired. Under the legislation, future store point of sale
devices for the purchase of goods and services used by consumers
utilizing a personal identification number must have a specifically
described tactile keypad or be equipped for the use of RFID,
biometric, or other forms of technologically based personal
identifiers.
211
The use of such technology is acceptable as long as it
“provides the opportunity for the same degree of privacy input and
output available to all individuals.”
212
Texas, in 1999, enacted a criminal law prohibiting the installation
of an “electronic or mechanical tracking device on a motor vehicle
205
W. VA. CODE ANN. § 62-11B-4 (2006); OKLA. STAT. ANN. tit. 57 §510.10 (2006), OHIO
REV. CODE ANN. §2971.05(E) (2006); CAL. PENAL CODE §§ 1210.7, 3010 (West 2006).
206
CAL. PENAL CODE § 637.7(a) (West 2006).
207
Id. § 637.7(d).
208
Id. §§ 637.7(b)-(c).
209
CAL. CIV. CODE § 1936(p) (West 2006).
210
Elizabeth C. Yen, Rent A Car, Rent A Spy, BUS. L. TODAY, July-Aug. 2005, at 59.
211
CAL. FIN. CODE § 13082 (West 2006).
212
Id. §§ 13082(a)(1), (2). 2006] HERBERT 453
owned or leased by another person.”
213
The Texas statute establishes a
defense against criminal prosecutions for owner or leasee who has
consented to the installation as well as law enforcement purposes.
214
A defense was also carved into the law for private investigators, who
after obtaining written consent from the owner or leasee, can install
the device in a vehicle or a in a private residential property.
215
The
private investigator defense permits distrustful employers, spouses, or
friends to utilize private detectives and GPS technology to track a third
party.
216
In addition, Texas codified restrictions on the distribution of
biometric information in 2001. The Texas law prohibits the capturing
of an individual’s biometric identifier for commercial purposes
without the consent of the individual.
217
The statute also places
general restrictions on the sale, lease, and disclosure of biometric
information.
218
Washington’s motor vehicle law permits drivers, on a voluntary
basis, to submit biometric information to verify their identity when
applying for a driver’s license renewal or a duplicate of the license.
219
In crafting the statute, the Washington legislature placed explicit
privacy safeguards on the handling of the biometric information by
motor vehicle officials including prohibiting the release of the
biometric information without court order and mandating other
appropriate safeguards such as encryption.
220
Montana’s statutory limitation on electronic tracking devices was
not made applicable to the tracking vehicles or humans. In 1999, the
Montana legislature, acting based on the perceived needs of that state,
213
TEX. PENAL CODE ANN. § 16.06(b) (Vernon 2003).
214
Id. §§ 16.06(d)(1)-(3).
215
Id. § 16.06(d)(4).
216
Other states that have enacted specific criminal statutes limiting the use of electronic
tracking devices in vehicles include Minnesota, Tennessee, and Hawaii. See MINN. STAT.
ANN. § 626A.35 (2006); TENN. CODE ANN. § 39-13-606 (2005); HAW. REV. STAT. § 803-42
(1993).
217
TEX. BUS. & COM. CODE ANN. § 35.50(b) (Vernon 2006).
218
TEX. BUS. & COM. CODE ANN. § 35.50(c) (Vernon 2006).
219
WASH. REV. CODE § 46.20.037 (2006).
220
Id.454 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
enacted a law that prohibits hunters from utilizing electronic devices
“to track the motion of a game animal and relay information on the
animal’s movement to the hunter.”
221
The enactment of these laws has led to at least three criminal
prosecutions against individuals who have unlawfully used an
electronic device. In 2000, Robert Sullivan’s wife commenced legal
proceedings to end their marriage and she obtained a restraining order
against him.
222
In response, Sullivan installed a GPS device in her car
to keep track of her activities.
223
The device was repeatedly installed
and removed by Sullivan to enable him to download the
information.
224
Sullivan was successfully prosecuted and his
conviction affirmed under Colorado’s harassment by stalking statute
that outlaws placing another person under surveillance in a manner
that would cause serious emotional distress.
225
In Wisconsin in 2002, a man pled no contest to stalking his former
girlfriend by placing a GPS device under the hood of her car.
226
The
plea resulted from the police obtaining the electronic records of his use
of the technology.
227
In Delaware, Nancy Biddle was prosecuted in 2005 for attaching a
GPS tracking device to the frame of another woman’s car for tracking
purposes.
228
Ms. Biddle was convicted under Delaware’s invasion of
privacy criminal statute that prohibits the nonconsensual installation
“in any private place” of a device for “observing, photographing,
221
Mont. Code Ann. § 87-3-134 (2005).
222
People v. Sullivan, 53 P.3d 1181, 1182 (Colo. Ct. App. 2002).
223
Id.
224
Id. at 1184.
225
Id. at 1185; COLO. REV. STAT. ANN. § 18-9-111(4)(b)(III) (2006); see also O'Brien v.
O'Brien, 899 So.2d 1133 (Dist. Ct. App. Fla. 2005) (in which the husband’s email unlawfully
obtained by wife in violation of Florida’s electronic communications statute was excluded
from evidence during their divorce trial); Evans v. Evans, 610 S.E.2d 264 (N.C. Ct. App.
2005) (in which the wife’s sexually explicit e-mail was found admissible in divorce trial
because they were not illegally intercepted by the husband).
226
David A. Schumann, Tracking Evidence with GPS Technology, WIS. LAW., May 2004, at
8.
227
Id.
228
State v. Biddle, No. CRIM.A. 05-01-1052, 2005 WL 3073593, at *1 (Del. C.P. May 5,
2005). 2006] HERBERT 455
recording, amplifying or broadcasting sounds or events in that
place[.]”
229
After reviewing the conflicting federal and state case law
on the question of whether an individual has a reasonable expectation
of privacy while driving a vehicle, a Delaware judge convicted Ms.
Biddle, noting that increased use of electronic devices is eroding
personal liberty.
230
V. THE USE OF TRACKING DEVICES IN EMPLOYMENT
Increasingly, throughout the United States, private and public
sector employers are utilizing RFID, GPS, cellular technology, and
biometrics as a means of monitoring work performance and employee
location.
231
In 2004, employers spent approximately $9 billion in
technological monitoring devices for the workplace.
232
The recent
announcement by an Ohio employer that two of its employees
received RFID implants may be the beginning of a new ominous trend
in American labor relations.
233
In a survey of 24 major federal agencies, the United States
Government Accountability Office (GAO) found that 13 agencies had
implemented or had plans to implement RFID technology.
234
Increasingly, employers are replacing traditional time sheets and time
clocks with biometric technology to monitor their employees’ time
and attendance.
235
229
DEL. CODE ANN. tit. 11, § 1335(a)(2) (2001); Biddle, 2005 WL 3073593, at *1.
230
Biddle, 2005 WL 3073593, at *2.
231
Charles Forelle, On the Road Again, But Now the Boss Is Sitting Beside You, WALL ST. J.,
May 14, 2004, at A1.
232
Matthew Swaya & Stacey R. Eisenstein, Emerging Technology In the Workplace, 21 LAB.
LAW. 1, 8 (2005).
233
Waters, supra note 127.
234
U.S. GOVERNMENT ACCOUNTABILITY OFFICE (GAO), GAO-05-551, INFORMATION
SECURITY: RADIO FREQUENCY IDENTIFICATION TECHNOLOGY IN THE FEDERAL GOVERNMENT 13
(2005), available at http://gao.gov/new.items/d05551.pdf (the 13 agencies that utilized or
intended to utilize the technology were focused on tracking both objects and people).
235
Rosenzweig, Kochems & Schwartz, supra note 9, at 3; Stephanie Armour, Biometrics to
Imprint Job Site, USA TODAY, Dec. 5, 2002, at B3. 456 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
Employers justify the implementation of such technology in the
name of safety, security, efficiency, and productivity.
236
However,
employer use of this new technology does not usually stem from
empirical data demonstrating an increase in workplace fatalities and
injuries, or a decrease in efficiency and productivity.
As a practical matter, employers already have at their disposal
many other effective and less intrusive managerial tools to deal with
safety concerns, security, and productivity: employee training;
tachometers and odometers to measure speed, distance and mileage;
intercom, two-way radios and cell phones; and supervisor and coworker visual observations to ferret out employee misconduct.
Electronic location monitoring enables employers to learn non-work
related information including personal habits, tastes, and interests of
employees. In addition, this information can become vulnerable to
third-party access.
237
Based on the lack of empirical or anecdotal evidence, there
appears to be one central explanation for the growing use of human
tracking technology in employment: an effort by employers to expand
their power and domination over their workforce. Twenty years ago,
Gary T. Marx and Sanford Sherizen recognized that employer use of
electronic technology for employee monitoring is a modern means of
implementing the management ideas of Frederick Taylor which are
aimed at increasing productivity and maximizing employer profit.
238
In order to avoid the stigma of being perceived as engaging in
excessive surveillance, some employers will rely on pretexts to justify
the use of tracking technology. Pretexts and secrecy are used to avoid
a perception that the employer is using totalitarian tools or mistreating
its employees.
Prior to the purchase and implementation of workplace tracking
technology, it is rare for an employer to discuss with its employees the
purpose and nature of the new form of surveillance. Without a union
representing the employees, the employer has no legal obligation to
discuss or negotiate changes in terms and conditions in employment
including the implementation of tracking technology. Nevertheless,
236
Yung, supra note 176, at 175-178.
237
GAO, supra note 234, at 18; Rosenzweig, Kochems & Schwartz, supra note 9, at 7.
238
Gary T. Marx & Sanford Sherizen, Monitoring On the Job: How to Protect Privacy As
Well As Property, 89 TECH. REV. 63, 63-64 (1986). 2006] HERBERT 457
advocates for the expansive use of the new technology encourage
employers to be open and honest with their employees.
239
An unusual public debate regarding the proposed implementation
of tracking technology in employment took place in the City of Boston
in 2004. On November 8, 2004, the Boston City Council conducted a
legislative hearing to consider a proposed order to encourage the
installation of GPS devices on Boston’s 720 public school buses.
240
Councillor John M. Tobin, Jr., as chair of the Boston City Council
Education Committee, scheduled the public hearing to examine the use
of GPS technology as a means of keeping track of the location of
students thereby enhancing their safety.
241
During the hearing,
representatives from the school district, the bus company, and the bus
drivers union debated the need and rationale for the implementation of
GPS technology.
242
At the hearing, witnesses testified that the school
district utilized a two-day radio system along with an electronic
system that kept track of each bus’s mileage and the time when it left
and returned.
243
Supervisory road audits were used to monitor bus
driver work performance.
244
The school bus company representative
present at the hearing articulated various reasons to justify the use of a
GPS system: provide back-up information in emergency situations,
keep tabs on bus arrivals and departures, monitor bus speeds; insure
239
Mark Roberti, RFID and the Worker, RFID J., Nov. 29, 2004,
http://www.rfidjournal.com/article/view/1259.
240
Heather Allen, School Bus Drivers Protest GPS Plan, B. GLOBE, Nov. 9, 2004, at B2.
241
Id.; Steve Garfield, Councillor Tobin to Propose Tracking System Aboard City’s School
Buses, Sept. 21, 2004,
www.votejohntobin.com/blog/PressRoom/_archives/2004/9/21/259566.html.
242
Allen, supra note 240 (noting that at the hearing, the bus drivers’ union vehemently
questioned the motivation and legality of the City Council initiative. The hearing was held
following the conclusion of private sector negotiations between the bus drivers’ union and the
bus company with respect to a new contract. During those negotiations, the bus company had
placed on the table a proposal for the installation of GPS devices. Based on the union’s strong
opposition to the proposal, the company withdrew that proposal which enabled the parties to
reach a tentative agreement for a new contract.).
243
Videotape: Review of feasibility and cost of installation of global positioning system on
school buses Before the Boston City Council Committee on Education (Boston City Council
2004) (on file with author) [hereinafter Boston City Council Hearing].
244
Id. 458 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
bus drivers’ adherence to set bus routes, and provide guidance in
following those routes.
245
In response, union officials and rank and file bus drivers refuted
these alleged purposes.
246
The union president stated that the primary
purpose for the bus company wanting the new technology was to be
able to challenge the drivers’ wages, which were based on the specific
amount of time the drivers worked each day.
247
He explained that the
surveillance system would not enable the company to know the reason
for a bus delay or the modification of a bus route.
248
With respect to
student safety, the primary reason given by City Councillors for
supporting the resolution, various drivers argued that GPS technology
could not provide data regarding which bus a student may be on or
identify the specific location where a student exited.
249
They
emphasized that the best means of insuring that students get on the
correct bus and off at the correct stop would be through personal
supervision by a bus monitor.
250
Finally, the bus drivers explained
that a GPS device, like a two-way radio system, is subject to
interference and mechanical breakdown.
251
Although locating students was the articulated central rationale
behind the Boston GPS legislation, no one at the three hour City
Council hearing mentioned using RFID technology as a means of
keeping track of students like other school districts.
252
A detached
look at the articulated municipal need and the available technology
should have led Boston officials to discuss the possible use of smart
cards and RFID badges for students. The failure to consider the use of
an RFID system for students suggests that student safety was the
pretext for the proposed location scrutiny of Boston bus drivers.
245
Id.
246
Id.
247
Id.
248
Id.
249
Id.
250
Id.
251
Id.
252
See Matt Richtel, A Student ID That Can Also Take Roll, N.Y. TIMES, Nov. 17, 2004, at
A24; Lisa Guernsey, Where’s Johnny? Smart Cards and Satellites Help Keep Track, N.Y.
TIMES, Aug. 3, 2005, at G7. 2006] HERBERT 459
Alternatively, the lack of a discussion regarding the use of the
alternative technology may be reflective of an uninformed and reactive
approach to incorporating new technology in the workplace.
Another example of the use of a pretext to justify the installation of
tracking technology was presented during a 2005 disciplinary
arbitration when a small marketing company offered GPS data to
justify an employee’s termination.
253
In December 2003, the company
secretly installed GPS devices in all of its company’s vehicles.
254
During the arbitration, the company contended that the reason for
installing the tracking technology was to enable supervisors to know
where to contact employees by telephone.
255
The company claimed
that the secret tracking technology would increase productivity over
the prior practice of using cell phones or calling work locations.
256
The illogic of the company’s rationale is self-evident. The secrecy
connected with the installation showed that the GPS device was never
intended to be a means of communication between supervisors and
employees. Even with the availability of the device, supervisors still
had to call employees on their cell phones or at the worksites.
A far more colorable explanation for the company’s decision to
begin using the tracking technology was an incident six months earlier
when the company’s owner discovered that a twenty-year employee,
who was the subject of the arbitration, was missing at a worksite.
257
Subsequent GPS data along with visual verification demonstrated to
the company that the same employee was at home when he was
supposed to be working in the field.
258
The breadth and secrecy of the company’s implementation of
tracking technology backfired. Although the arbitrator concluded that
the employee was guilty of serious misconduct, the arbitrator vacated
the termination and imposed a sixty-day suspension based on the
company’s failure to disclose to its workforce the installation and
purpose of the GPS system.
259
253
In re Beverage Marketing, 120 Lab. Arb. Rep. (BNA) 1388 (2005) (Fagan, Arb.).
254
Id.
255
Id.
256
Id.
257
Id.
258
Id.
259
Id. 460 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
A much more targeted approach to the use of GPS technology was
utilized by a Missouri bottling company seeking to investigate cash
shortages from vending machines in a particular service area.
260
Rather than over-reacting by installing GPS devices in all company
vehicles, the employer placed monitoring devices only in vehicles
used by employees with access to the specific machines with reported
shortfalls.
261
After the employee was cleared of wrongdoing, he
received notification that during the investigation he had been tracked
with GPS technology.
262
The use of pretext and secrecy regarding the use of tracking
technology is aimed at avoiding employee opposition. Based on the
power of the tracking devices, it is not surprising that it has resulted in
employee protests and demonstrations against what is perceived to be
a substantial intrusion into employee privacy. In Massachusetts, both
snowplow operators and bus drivers have engaged in collective action
at legislative hearings to challenge the use of human tracking.
263
In
New York City, cab drivers held a demonstration protesting an
administrative mandate for the installation of GPS devices in all
taxicabs.
264
It is reasonable to expect larger and more sustained
protests if employers attempt to impose human implants as a condition
of employment.
Employees and cabbies are not the only people protesting against
the implementation of tracking devices. Parent protests in a school
district in Sutter County, California resulted in the district withdrawing
its plan to implement RFID tags for the monitoring of its students.
265
260
Elgin v. St. Louis Coca-Cola Bottling Co., No. 4:05CV970, 2005 WL 3050633, at *1 (E.D.
Mo. Nov. 14, 2005).
261
Id. at *1-2.
262
Id.
263
See Forelle, supra note 231; Yung, supra note 176, at 178. In addition to organized
protests, the installation of tracking technology can lead to employees engaging in self-help.
In 2003, employees of a New Jersey company rebelled by disabling recently installed GPS
devices. Otis Elevator Company v. Local 1, Int’l Union of Elevator Constructors, No. 03 Civ.
8862, 2005 WL 2385849 (S.D.N.Y. Sept. 23, 2005). Similarly, in 2001, three days after a
distribution company announced that it had installed GPS devices in all of its trucks, an
employee deliberately disconnected the device. In re Superior Products, 116 Lab. Arb. Rep.
(BNA) 1623 (2002) (Hockenberry, Arb.).
264
Matt Friedman, Cabbies Rally Against GPS Tracking Mandate, NEWSDAY, Mar. 21, 2006,
at A14.
265
Greg Lucas, Students Kept Under Surveillance at School, S.F. CHRON., Feb. 10, 2005, at
B1. 2006] HERBERT 461
In addition to overt protests, human tracking can lead directly to
demoralization, hostility and lower productivity among the most
dedicated and motivated of employees.
266
Under real-time scrutiny,
employees feel dehumanized and fear being disciplined based on
inaccurate electronic data or employers misconstruing the data.
267
For
example, after an ABC television station affiliate installed GPS
tracking devices on the station’s mobile trucks, an unnamed on-air
reporter was quoted by New York Magazine as stating: “Let’s just say
people are pretty pissed off…We were never really consulted, and the
whole Big Brother aspect has us uncomfortable.”
268
A Long Island
snowplow driver expressed similar sentiments when he told a
newspaper reporter that: “They’re tracking us like we’re 5 years
old…I’m very on edge.”
269
The sense of anger and fear articulated by
both the television reporter and snowplow driver underscores the
demoralizing impact caused by electronic tracking in the workplace.
In addition to diminishing morale and productivity,
implementation of computer-based time records has other potentially
adverse consequences for employers. Electronic time records can be
the primary evidence in establishing overtime compensation claims
under the Fair Labor Standards Act and analogous state laws. In
addition, such records may be highly probative in employment
discrimination and other litigation where the time and location of
specific alleged conduct, such as sexual harassment, is a central factual
issue in dispute.
At present, employees have few legal rights against the
implementation or use of tracking technology by their employers
while performing work duties.
270
The scope of recognized employee
freedoms while at work in the United States is quite limited. As the
266
David Colker, Go Ahead, Just Try to Disappear, L.A. TIMES, Dec. 27, 2004, at A1 (quoting
management professor Lucas Introna regarding the discontent caused by employer location
tracking).
267
Yung, supra note 174, at 177-178; NAKED CROWD, supra note 5, at 51.
268
Selim Algar, Spywitness News, N.Y. MAG., Oct. 24, 2005, available at
http:www.newyorkmetro.com/nymetro/news/people/columns/intelligencer/14804/index.html.
269
Brandon Bain, Workers object to Babylon’s satellite tracking system, NEWSDAY, Mar. 13,
2006, at A6, available at http://www.newsday.com/news/local/longisland/nyligps0313,0,5610948.story?coll=ny-li-bigpix.
270
Gundars Kaupins & Robert Minch, Legal and Ethical Implications of Employee Location
Monitoring, 38
TH
HAW. INT’L CONF. ON SYS. SCI. 2 (2005) (noting the lack of any laws in the
United States limiting employee location monitoring). 462 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
United States Supreme Court has observed “[o]rdinarily, an employee
consents to significant restrictions in his freedom of movement where
necessary for his employment, and few are free to come and go as they
please during working hours.”
271
The Oregon Supreme Court’s 2004 decision in State v. Meredith is
indicative of the narrow judicial treatment of location privacy for
employees.
272
Sixteen years before, the same court had broadly
interpreted the Oregon Constitution to prohibit the warrantless use by
the police of a tracking transmitter attached to a car.
273
In contrast, in
State v. Meredith, the same court held that the use of the same type of
electronic tracking device placed on the employer’s vehicle used by an
employee to perform her job duties in a national forest did not require
a warrant.
274
In reaching its decision, the court found that the
employee “did not have a protected privacy interest in keeping her
location and work-related activities concealed from the type of
observation by her employer that the transmitter revealed.”
275
In O’Connor v. Ortega, the Supreme Court ruled that public
employees have constitutional protections against unreasonable
searches and seizures in the workplace.
276
The Fourth Amendment is
implicated only when workplace realities establish that the employee
had a reasonable expectation of privacy through the use of doors, locks
and personal passwords.
277
The openness of an office to the public
and other employees may result in an expectation of privacy being
deemed unreasonable.
278
In 2001, a federal appellate court ruled that a state employee had a
reasonable expectation of privacy in the content contained in his
271
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 624-625 (1989); see also
Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 218 (1984).
272
State v. Meredith, 96 P.3d 342 (Or. 2004).
273
State v. Campbell, 759 P.2d 1040, 1049 (Or. 1988).
274
Meredith, 96 P.3d at 346.
275
Id.
276
O’Connor v. Ortega, 480 U.S. 709, 717 (1987).
277
See id.
278
Id.2006] HERBERT 463
workplace computer.
279
In concluding that the employee had a
reasonable expectation of privacy with regard to the office computer,
the appellate court noted that that the employee occupied a private
office and maintained exclusive use of the computer, desk, and filing
cabinet.
280
Even with the establishment of a reasonable expectation of
privacy, the appeals court found that the search of the employee’s
computer was reasonable because it was based on the employer’s
reasonable suspicion that it would uncover evidence of employee
misconduct.
281
The O’Connor v. Ortega legal standards will result in interesting
future legal challenges to the use of human tracking devices in public
employment. For example, the Supreme Court’s Karo decision may
form the basis for a successful challenge to a public employer utilizing
certain RFID and other internal tracking technology that allows for
location surveillance in private areas, such as employee bathrooms and
break rooms, where employees have a reasonable expectation of
privacy. Another important unresolved issue is whether the
application of Knotts, Karo, and O’Connor analyses will lead to
Fourth Amendment or state constitutional limitations on government
employers using GPS technology in laptops, cell phones, and other
devices that would permit monitoring of employee location and
movement while in the home.
In the private sector, the primary national law granting employees
certain limited statutory workplace freedom, especially the right to
organize, is the National Labor Relations Act.
282
Under that law,
employers are prohibited from engaging in surveillance of protected
concerted conduct and are obligated to negotiate mandatory subjects
279
Leventhal v. Knapek, 266 F.3d 64, 73-74 (2d Cir. 2001); see also United States v. Slanina,
283 F.3d 670, 676 (5th Cir. 2002) (in which the court held that use of passwords and locking
office doors to deny access to computer files can create reasonable expectation of privacy);
but see United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000) (in which the court held
that public employer’s internet policy eliminated any reasonable expectation of privacy);
United States v. Bailey, 272 F. Supp 2d 822, 836-837 (D. Neb. 2003) (in which the court held
that the employee had no reasonable basis to believe activities on work computer were private
based on the screen notification).
280
Leventhal, 266 F.3d at 73.
281
Id. at 75.
282
29 U.S.C. § 151 (2006). 464 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
of bargaining with a certified or recognized union regarding certain
forms of employee surveillance.
283
The information provided by human tracking devices can be a very
powerful tool in an employer’s effort to defeat a union organizing
campaign. By having electronic access to the location of employees at
all times, the employer can determine which employees have been
meeting together during lunch hours and break time and which
employees have visited the union’s office.
284
As a practical matter,
however, it may be very difficult for a union or employee to establish
that an employer’s alleged discriminatory conduct toward an employee
was based on electronic tracking.
In September 2005, a New York federal judge rejected a union’s
effort to vacate an arbitrator’s decision that had found that the
employer had a right, under the union contract, to install GPS
technology in company owned vehicles.
285
The contract contained
language granting the employer the right to continually upgrade
technology it uses and specified certain electronic devices being
utilized by employees.
286
In 2002, the company decided to install the
GPS technology in company vehicles driven by employees.
287
Employees reacted strongly to the installation of the GPS devices and
their union challenged the employer’s action through the contractual
grievance procedure.
288
The arbitrator concluded that the contract
language granted the employer the right to upgrade the technology it
utilized.
289
In rejecting the union’s effort to set aside the arbitrator’s
283
See Chester County Hosp., Case 4-CA-21243, 320 N.L.R.B. 604, 1995 WL 795603 (1995);
Colgate-Palmolive Co., Case 9-CA-32158, 323 N.L.R.B. 515, 1997 WL 202232 (1997).
284
See Kaupins & Minch, supra note 268, at 3 (noting that electronic tracking would enable
employers to more effectively monitor distribution of union materials in the workplace);
Yung, supra note 174, at 192-194 (discussing that employer electronic tracking also has the
potential of running afoul of state laws that prohibit employers from discriminating against
employees for their off-duty activities).
285
Otis Elevator Co. v. Local 1, Int’l Union of Elevators, No. 03 Civ. 8862, 2005 WL
2385849, at *8 (S.D.N.Y. Sept. 23, 2005).
286
Id. at *1.
287
Id. at *2.
288
Id.
289
Id. at *3. 2006] HERBERT 465
decision, the federal court noted that the contract granted the employer
expansive authority to update the technology it utilizes.
290
The National Labor Relation Board’s General Counsel has issued
an advice memorandum on the question of whether a trucking
company was legally obligated to negotiate with the Teamsters’ union
prior to installing GPS technology in company vehicles.
291
The
memorandum concluded that the company did not have to negotiate
with the union because it constituted a replacement of a prior
communications system.
292
Before the installation of the electronic
system, the truck dispatcher utilized a two-way radio to communicate
with drivers.
293
Throughout the day, at specific set times, the drivers
were required to use the radio to communicate with the dispatcher.
294
In addition, log sheets had to be submitted by drivers at the end of
their shift.
295
Although the new GPS technology provided the
employer with substantially greater surveillance power and
information than the prior two-way radio, including the ability to
monitor break times, the General Counsel reached the conclusion that
the GPS technology was equivalent to the radio system and did not
constitute a significant change in employment.
296
The six-year negotiated contract between the United Parcel Service
and the Teamsters contains a clause limiting the ability of the
employer to discipline employees based on data collected through the
GPS device carried by its employees.
297
The contract states, “No
290
Id. at *7.
291
Roadway Express, Inc., Case 13-CA-39940-1 (Nat’l Labor Relations Board Apr. 15 2002),
http://www.nlrb.gov/nlrb/shared_files/admemo/admemo/x041502_roadway.asp?bhcp=1.
292
Id.
293
Id.
294
Id.
295
Id.
296
Id.
297
The legal requirement that an employer negotiate the implementation of a new tracking
technology is not absolute. In 1976, the National Labor Relations Board (NLRB) held that an
employer had an unfettered right to impose a mechanical timekeeping system to replace a
manual record keeping system without negotiating with the union because the new system was
not viewed as being a change in the terms and conditions of employment. Rust Craft
Broadcasting of N.Y., Case 3-CA-6221, 225 N.L.R.B. 327, 329, 1976 WL 7242, at *4 (June
29, 1976). Administrative law judges in the private and public sectors have applied this
reasoning to conclude that employers can impose biometric systems unilaterally in the 466 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
employee shall be disciplined for exceeding personal time based on
data received from the DIAD/IVIS or other information
technology.”
298
In contrast, despite vocal employee opposition to the
implementation of GPS technology in town vehicles in Babylon, New
York, the Teamsters local representing those employees was unable to
persuade the employer to agree to limitations on the employer’s use of
the technology.
299
Negotiated contractual provisions depriving employers of the
ability to utilize location tracking information in discipline fits into
what Jeffrey Rosen has labeled the “control-use model” of regulating
new forms of technology surveillance.
300
In light of the employer’s
power over its employees during work time, a negotiated provision
limiting the use of human tracking in disciplinary cases is a regulatory
victory for employees. It also undercuts a primary articulated purpose
for using such technology, namely discovering and disciplining
employees for misconduct. Nevertheless, this type of negotiated
language has inherent weaknesses. It accepts employer electronic
tracking during an employee’s personal time and does not prohibit
electronic surveillance after hours. The provision does not address the
employer’s use of inaccurate information stemming from improper
settings or malfunction and does not set any boundaries relating to the
employer obtaining personal information about the employees’ nonwork activities.
301
VI. POTENTIAL LEGAL SOLUTIONS
Prior to the establishment of potential legal solutions to human
tracking technology, our society needs to conduct a measured and
workplace as a replacement for prior manual time keeping systems. Res Care, Case 2-CA-
32700, 2001 WL 1598700 (N.L.R.B. June 8, 2001); Cal. State Employees Ass’n v. California
(Cal. Youth Auth.), No. SA-CE-1099-S, 23 P.E.R.C. 30,114 (June 1, 1999).
298
National Master United Parcel Service Agreement for the Period of August 1, 2002
through July 31, 2008, Article 37(d), available at
http://www.browncafe.net/public/upsnma/#NATIONAL.
299
Bain, supra note 269.
300
NAKED CROWD, supra note 5, at 199.
301
See Kaupins & Minch, supra note 270, at 5 (citing unenforceable ethical considerations
relating to an employer’s intrusion into an employee’s personal business as well as the
inaccuracies that can stem from electronic data). 2006] HERBERT 467
meaningful debate to reach a national or local consensus regarding the
acceptable contours of privacy in the new technological age. Such
discussions should be aimed at drawing a proper balance between
liberty, security, individual rights, and property rights. A
reexamination of the reasonable expectation test should be explored
during such a dialogue along with the issue of whether there is a
societal consensus that exterior exposure should constitute the end of
protected privacy.
Reliance on public fears perpetuated by the mass media, and
marketing schemes aimed at responding to such fears, is not a formula
for the development of reasoned public policy. Similarly, horrific acts
perpetuated by the use of tracking devices should not be the only
catalyst for modification of public policy regarding new technologies.
Gary T. Marx’s suggestion that the use of new powerful
surveillance tools may decrease or be modified if managers and
corporate executives were equally subject to such surveillance remains
untested.
302
Jeffrey Rosen has rejected the notion that ubiquitous
technological transparency constitutes an adequate or appropriate
means of balancing liberty with security.
303
Nevertheless, those
advocating for the implementation of human tracking technology on
others do not necessarily want to be subject to the same level of
scrutiny. During the rare public debate in the Boston City Council
regarding GPS technology in employment, the chief shop steward for
the union representing the school bus drivers asked Councilor Tobin
how he would react if his manager or boss monitored his every move
through GPS surveillance.
304
Rather than providing a reflective
answer regarding his own subjective sense of personal autonomy, the
Councilor responded angrily asserting that his constituents would be
able to vote for or against him in the next election.
305
The question of location transparency for public officials and
corporate managers remains unexplored. In developing and
considering remedial legislation, it may be beneficial for a public
official to agree to subject him or herself to location tracking for a day
or week. A well-publicized experiment involving a public figure
wearing a GPS device would lead to a greater understanding regarding
302
Gary T. Marx, Let’s Eavesdrop On Managers, COMPUTERWORLD, April 20, 1992, at 29.
303
NAKED CROWD, supra note 5, at 194-199.
304
Boston City Council Hearing, supra note 243.
305
Id.468 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
the power of the technology as well as potential legal changes needed
to protect individual privacy. There is precedent for such an
experiment. Companies are promoting tracking implants through
publicity surrounding individuals who have consented to human
implant. Public exposure to the results of technological tracking
would enhance the debate regarding the use of the technology.
The negative reaction to the United States State Department’s
proposed rule regarding the introduction of an electronic passport
program supports the conclusion that there is growing public support
for limitations on new tracking technology. In the State Department’s
October 25, 2006 report announcing its final rule, it acknowledged that
98.5% of those who commented opposed electronic passports
primarily on privacy and security grounds.
306
Despite such
documented concerns, the Department determined that by October
2006 virtually all United States passports would contain a 64KB
microchip capable of storing both data and biometric indicators.
307
Cognizant of the level of public opposition, the Department agreed
that it would not require biometric indicators in the passport
microchips until after a new rule is proposed and it obtains additional
public comment.
308
In May, 2006, an advisory subcommittee to the United States
Department of Homeland Security issued an interim report
recommending against the use of RFID technology to track and
identify people.
309
The ability of the government to track and profile
individuals without notice was one of the reasons for the
subcommittee’s recommendations.
310
Based on the slow congressional response to the development of
new technologies and the current political climate, it is unlikely that
federal remedial legislation limiting human tracking technology will
be enacted in the near future. In fact, an explicit policy agenda item for
the Senate Republican High Tech Task Force in the 109
th
Congress is
306
Electronic Passports: Final Rule, 70 Fed. Reg. 61,553, 61,553 (Oct. 25, 2005) (to be
codified at 22 C.F.R. pt. 51), available at http://edocket.access.gpo.gov/2005/05-21284.htm.
307
Id.
308
Id.
309
DEP’T OF HOMELAND SEC. EMERGING APPLICATIONS AND TECH. SUBCOMM., THE USE OF
RFID FOR HUMAN IDENTIFICATION (2006),
www.dhs.gov/dhspublic/interweb/assetlibrary/privacy_advcom_rpt_rfid_draft.pdf.
310
Id. at 7-9. 2006] HERBERT 469
to avoid what it has termed premature regulation of RFID
technology.
311
Significantly, absent from the task force’s agenda are
GPS technology, location privacy protections, and regulation of
human microchip implants.
312
In contrast, in 2005, Congress enacted
legislation establishing and funding a national RFID animal microchip
system for domestic pets.
313
It is possible, however, that rapid and
reactive federal legislation regarding human tracking technology may
be enacted following a well-publicized crime or tragedy or due to
public fear caused by the abuse or misuse of tracking technology.
An alternative to emotive legislative responses to important
privacy issues would be the establishment of a federal privacy
commissioner or privacy commission, similar to governmental offices
established in Canada and Australia, to study and analyze new
technologies and provide Congress with suggested remedies.
Although Congress did not act on the proposed 2004 legislation that
would have created such an office, a federal chief privacy officer or
commission would substantially assist the federal government,
Congress, and the public in analyzing, understanding, and responding
to potential privacy intrusions associated with new technologies. The
European Union has already created a working group, known as the
Article 29 Data Protection Working Party, which has closely examined
privacy and data security issues associated with RFID technology.
314
In the United States, a similar pro-active response to technological
developments would assist in the establishment of sober and balanced
federal legislation relating to privacy and new technologies.
311
Senate Republican High Tech Task Force, Policy Agenda,
http://republican.senate.gov/httf/index.cfm?FuseAction=PolicyAgenda.Home.
312
Id.
313
Anne Eisenberg, For the Fretting Pet Owner, a Wireless Distress Signal, N.Y. TIMES, July
15, 2004, available at
http://www.nytimes.com/2004/07/15/technology/circuits/15next.html?ex=1247630400&en=6
8121d87ca4dd70d&ei=5090&partner=rssuserland; Kathleen Megan, GPS Designed to Find
Lost Pets, Notify Owners, MIAMI HERALD, Feb. 12, 2006, available at
http://www.miami.com/mld/miamiherald/living/home/pets/13843615.htm. The ScheringPlough Animal Health Corporation markets the HomeAgain® pet recovery service that
utilizes RFID implants. See HomeAgain® Pet Recovery Service, HomeAgain Information
Center, http://www.homeagainpets.com/.
314
Article 29 Data Protection Working Party, Working Document on Data Protection Issues
Related to RFID Technology, Jan. 19, 2005,
http://europa.eu.int/comm/justice_home/fsj/privacy/workinggroup/wpdocs/2005_en.htm. 470 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
However, it is far more probable that a majority in the current
Congress will continue to defer to the marketplace for potential
corrective action aimed at avoiding privacy intrusions. Such deferral
is reflective of contemporary deregulation ideology and assumes that
there is more profit to be made in protecting privacy than in collecting,
using, and distributing location and other personal information.
Although voluntary corporate initiated policies can aid in the
protection of privacy, as well as increase profits through consumer
good will, sole reliance on marketplace privacy solutions constitutes a
public policy recipe for disaster.
315
In addition, sole reliance on litigation in federal courts aimed at
establishing constitutional protections against human tracking would
be similarly misplaced. Based on the reasonable expectation of
privacy test, along with precedents such as Knotts, it is doubtful that
the Supreme Court will find that the use of newer and more powerful
technologies to track public location and movement is subject to the
Fourth Amendment. To the extent that new tracking technologies
involve monitoring within the home, Karo and Kyllo suggest that
Fourth Amendment standards would be applicable. However, law
enforcement and public employers deserve more than post-hoc federal
guidance relating to the constitutional dangers connected with the use
of portable tracking devices contained in cell phones and laptops that
can lead to unlawful location monitoring within a home. The
computerized nature of GPS and cellular technology may result in the
transition from constitutional public monitoring to unconstitutional
surveillance within a home without real-time human supervision.
Since the development of human tracking devices, state
legislatures and courts have been far more responsive to the privacy
implications of such technology. State legislative initiatives have been
aimed at criminalizing certain use of tracking technology, establishing
judicial oversight over the police use of tracking devices, and
extending consumer protections against the use of such technology in
rented vehicles.
Based on the speed of technological change, states should also
consider establishing a privacy commissioner or legislative
commission with the authority to study technological developments
and provide guidance regarding potential state legislative responses to
a particular technology. Reports issued by Ontario Information and
Privacy Commissioner Ann Cavoukian regarding the privacy
implications of biometrics and RFID technology demonstrate the
315
See Allan Holmes, The Profits in Privacy, CIO MAG., Mar. 15, 2006, at 64. 2006] HERBERT 471
valuable role that such local government offices can play in
developing public policy.
316
A state privacy commissioner or
commission would aid in determining whether current state laws
restricting the use of electronic tracking devices should be amended to
regulate human implants as well as tracking devices attached to
personal objects other than vehicles. States also need to reexamine
their common law or statutory privacy causes of action to determine
whether and to what extent lawsuits for damages and injunctive relief
should be permitted for unwanted electronic location surveillance in
public or in the home. In addition, serious consideration needs to be
given to amending current state law to include prohibitions against the
sale or distribution of location information to third parties from
wireless products that are not subject to the Wireless Communications
and Public Safety Act of 1999. Similarly, restrictions should be
explored with respect to the distribution and sale of personal
information emanating from RFID and biometric technology. Finally,
another means of checking the potential abuse of tracking technology
would be to subject tracking devices to state licensing regulation.
The need for careful legislative deliberation is particularly urgent
in the area of human implants where the adverse social consequences
of such devices have not been examined. The use of human implants
is ripe for abuse and constitutes the most likely technological means
for imposing geoslavery. State regulatory schemes and procedures
have been enacted in some states regarding the implantation of
microchips in dangerous dogs. It is a testament to the differing speeds
of change between technology and the law that dangerous dogs in
states such as Colorado have clearer procedural protections against
mandatory implants than humans.
317
Although many states regulate
more benign intrusions into the human body, such as tattooing and
body piercing, regulations regarding human implants have not been
promulgated. A prohibition or regulation regarding human implants
should be carefully examined to properly weigh the varying interests
associated with the technology. In determining whether to ban human
implants, an examination should take place regarding whether the
availability of bracelets, cards, and badges with encoded information
316
See, e.g., Ann Cavoukian, Privacy and Biometrics, INFORMATION AND PRIVACY
COMMISSIONER/ONTARIO, Sept. 1999, http://www.ipc.on.ca/userfiles/page_attachments/pribiom.pdf; Ann Cavoukian, Tag, You’re It: Privacy Implications of Radio Frequency
Identification (RFID) Technology, INFORMATION AND PRIVACY COMMISSIONER/ONTARIO, Feb.
2004, http://www.ipc.on.ca/docs/rfid.pdf.
317
See COLO. REV. STAT. § 18-9-204.5(3)(E.5) (2006). 472 I/S: A JOURNAL OF LAW AND POLICY [Vol. 2:2
meet the same needs as implants. In addition, the substantive
distinction between information obtainable from identification-based
RFID implants and location-based GPS implants needs to be explored
in developing state public policy in this area. At minimum, state
restrictions should ban mandatory human implants without a court
order following a due process hearing before a state judge with the
burden of evidentiary proof being placed on the individual or entity
seeking to impose a mandatory implant. In addition, states should
debate and consider legislation banning mandatory GPS human
implants. Finally, any state regulatory scheme that permits the
voluntary use of human implants should require informed consent with
respect to the nature of the implant, the risk of privacy intrusions
associated with the implant and the means of removing the implant.
In the area of employment, state or local legislative initiatives may
include a complete ban on human implants, a mandate for informed
employee consent prior to the implementation of human tracking,
written notice to employees regarding the surveillance, limitations on
the daily period when surveillance would be permissible, specific legal
sanctions for employers who utilize the technology for unlawful
discriminatory purposes or to intrude on personal privacy, or a
prohibition against employers sharing the electronic data with third
parties. The need for such legislative action is particularly important
based on the growing portability of tracking devices that enables an
employer to monitor an employee while working or not working and
within the employee’s own dwelling. Such initiatives should be
considered after careful legislative examination of the technology and
a determination regarding the scope of protected employee personal
privacy during and after working hours.
To the extent that fear justifies imposing electronic tracking on
children and infirm elderly parents, a state requirement for judicial
intervention or licensing may be an appropriate response. Courts
already have been granted the power and jurisdiction to deal with
children in need of supervision and mentally infirm individuals
needing guardians. Placing a judicial or regulatory check on
electronic tracking of children and the ill may provide a balanced
means of permitting a technological response to rational or irrational
fears while protecting personal privacy.
In the absence of or as an alternative to remedial legislation,
industry groups and privacy advocates have been working on
establishing voluntary, industry-wide standards to protect against
inappropriate intrusions into individual privacy. On May 1, 2006, the
Center for Democracy and Technology announced interim draft 2006] HERBERT 473
guidelines prepared by a working group relating to the privacy
implications of RFID technology.
318
Similarly, in the United
Kingdom, Codes of Practice have been established for various forms
of location based services.
319
Although “self-regulation” based on
industry standards and guidelines has some benefits, they lack
necessary safeguards including enforcement tools. Nevertheless,
experiences connected with the development, implementation, and
application of industry standards may assist in the formulation of
future remedial legislation. Finally, another non-regulatory means of
protecting privacy against human tracking would be modifications to
the actual technology that may include an ability to turn the tracking
device off or a signal indicating that the tracking component of the
device has been deactivated.
In conclusion, the explosive growth of human tracking technology
in the past two decades calls for a deliberative reexamination of our
society’s concepts of individual autonomy and the scope of protected
privacy. The best means of reaching a societal consensus is through
sober examination, deliberations, and debate with respect to the nature
of new and developing technologies and the impact it has on our
concepts of privacy. Through such a dialogue, an appropriate legal
framework can be established to insure a reasonable balance between
conflicting interests associated with the technology.
318
Center for Democracy and Technology, CDT Working Group on RFID: Privacy Best
Practices for Deployment of RFID Technology, http://www.cdt.org/privacy/20060501rfidbest-practices.php (last visited May 18, 2006).
319
Orange, Our Commitment to You, http://www.orange.co.uk/about/regulatory_affairs.html
(last visited May 18, 2006).
