Privacy Lawyer & Attorney : Proskauer Rose Law Firm : CAN-SPAM, FCRA, FACTA

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.

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