A deeply divided New York Court of Appeals has held the government
can attach a GPS tracking device to a public employee's personal vehicle
without a warrant, establishing what three judges called a "dangerous
The judges agreed last week that remote surveillance
of a car is a search within the meaning of the state and federal
constitutions. They also agreed in Matter of Cunningham v. New York State Department of Labor,
123, that the state acted unreasonably in tracking an employee during
his non-working hours in an effort to discover if he was lying about his
The judges sharply disagreed about whether the
government should be allowed to electronically monitor the movements of
its workers without judicial supervision.
The case presented the
court with an opportunity to extend into the civil realm a landmark 2009
decision that the state cannot install a GPS device on a criminal
suspect's vehicle without a judicially approved search warrant. But the
decision left targets of a civil probe with less protection.
case involved a state Department of Labor middle-management employee who
had repeatedly been disciplined for work-related misconduct and was
once suspended for lying about his work hours. The inspector general
installed a GPS tracking system on his personal vehicle. Since the
inspector general lacks authority to obtain a warrant in a civil case,
no warrant was requested or issued.
The court majority found the GPS use was reasonable.
The decision turned largely on a 1987 U.S. Supreme Court precedent, O'Connor v. Ortega,
480 U.S. 709 (1987), where the U.S. Supreme Court held that public
employees have a diminished right of privacy in the workplace if a
search satisfies a standard of reasonableness.
A dissenting judge wrote that the decision went too far.
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