Here are a couple of recent legal developments concerning the privacy implications of global positioning system (GPS) technology.
1) Not-So-Sly Fox
On November 9, Fox Rent A Car, a Phoenix-based company with locations throughout California, settled a complaint filed against it by Attorney General Bill Lockyer and the San Mateo District Attorney concerning Fox’s use of GPS to track renters’ mileage and destinations. The complaint alleged that Fox had used GPS technology (1) to track mileage in order to impose mileage fees, which directly contradicted Fox’s advertised policy of unlimited mileage; and (2) to charge customers fees for leaving the state.
Though the GPS tracking section of the complaint was based on , which forbids liquidated damage penalties of the kind Fox imposed for mileage, Fox’s actions likely also violate Civil Code § 1936(p), which prohibits rental car companies from employing “electronic surveillance devices” for the purposes of assessing fines or surcharges. That provision became effective January 1, 2005.
Under the terms of the settlement, Fox is enjoined from using GPS technology for any purpose other than tracking vehicles suspected of being lost or stolen, Fox must keep a record of each time it uses GPS telemetry and must inform renters if they use other surveillance technology. Fox will pay a total of approximately $700,000, including $200,000 in civil penalties and $89,000 in restitution to customers who incurred mileage and travel surcharges.
2) Federal judge enjoins enforcement of Proposition 83
One day after voters approved Proposition 83, which, among other things, mandates GPS tracking of sex offenders and sexually violent predators, U.S. District Court Judge Susan Illston of the Northern District of California temporarily enjoined its enforcement. The Proposition requires persons imprisoned for felony sex offenses to wear a GPS monitoring device for the rest of their lives, and that such individuals pay a fee to cover the administrative costs of the monitoring program.
John Doe, the plaintiff in the case, alleged that the new law is unconstitutional because it interferes with his right to work, his right to privacy, and his right to travel freely. Doe was convicted fifteen years ago of a sex offense that required him to register with the state.
Judge Illston scheduled a November 27 hearing to consider a permanent injunction. However, on Wednesday, government lawyers told the court that Proposition 83 does not apply retroactively to the thousands of ex-convicts who have served their prison time and are off parole. Lawyers representing the plaintiff indicated that they likely would dismiss the lawsuit.