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Does What Happens in Your Car; Stay in Your Car? Maybe not, say OnStar and the Washington, D.C. Police Department

Categories: Internet and Technology, Article

tracking users

Recently, the United States Supreme Court heard argument on the case of United States v. Jones.  At issue is the legality of the Washington, D.C. police surreptitiously - and without a warrant - placing a GPS tracking device on a suspect's car, and then using information taken from the GPS to convict him of drug trafficking.  Nearly all of the judges expressed their concern with the government's position, but the questioning by certain justices was particularly pointed.  Concerned that a decision in favor of the police could facilitate a rise of the machines, Justice Alito posited: "With computers, it's now so simple to amass an enormous amount of information about people that consists of things that could have been observed on the streets," suggesting that the surveillance state envisioned in George Orwell's classic cautionary tale 1984 could indeed become reality if the Court decided this case without distinguishing between being tracked via GPS and being tailed on the sidewalk.  The government, on the other hand, argued that cars traveling on public roadways do not have the same Fourth Amendment privacy protections afforded citizens in their home and placing a GPS device on the car to track those same movements is not a "trespass" under the Fourth Amendment.

Corporations Get Into the Syping Game

The implication of using GPS devices for tracking people does not simply include someone suspected of engaging in criminal activities.  Reports have recently emerged that OnStar reserved the right to track and sell information about a vehicle's location and speed even after the driver cancelled service by altering their Terms and Conditions with their customers.  OnStar, a division of General Motors, provides a variety of services to vehicles including driving directions and vehicle diagnostics.  Concerns about potential abuse of this information - tracking consumer location and speed - fueled privacy advocates and prompted quick responses from OnStar and General Motors to soften the public outcry.  Interestingly enough, this is the same type of data and information that the government is seeking to collect in the Jones case.  The collection of this information by a private corporation creates even more concerns for the Federal Trade Commission, and, more importantly, the general public.

Of course, the question then becomes "What can I do to protect myself from this unwanted intrusion?"  For starters, read very carefully the privacy policies of any product or service you use.  That should include anything with the capability of transmitting information, whether you activate the service or not.  Companies are required to publish their privacy policies, and if you can't locate the information easily, the best place to look is the corporation or product's website.  If you still can't find it, contact the company directly and request the information in writing.  Along the same lines, a "terms and conditions" agreement may also be required prior to using or downloading software, or accessing a website.  They are also binding and may be several pages in length, and as soon as you use the product or service, you become bound by that agreement, regardless of whether you read it or not.  Privacy policies also become binding on you once you purchase the product or use the service, so if you are not satisfied with the company's policies, you need to discard or recycle the product and/or discontinue use of the service.

Unfortunately, we will not have an answer from the Supreme Court on the GPS tracking issue until at least June, 2012.  Until then, we recommend carefully reading privacy statements and terms and conditions before using or buying any product or service.


About the author: Laura A. Rogal is an attorney at the Phoenix law firm of Jaburg Wilk.  She assists clients with their intellectual property legal needs including internet law, social media, domain disputes and commercial litigation.  Laura can be reached at lar@jaburgwilk.com