No Right To Privacy: GPS and the Road to Unemployment
NY Appellate Division, 2nd Department: Cunningham v. NYS Dept. of Labor
Being a state employee has its benefits. Unauthorized absences and falsifying time records are not among them, especially if you’re part of management. Michael Cunningham was Director of Staff and Organizational Development for the NYS Department of Labor for nearly 20 years. For the last ten, he had been disciplined for workplace misconduct on a number of occasions. Of late, he was suspected of taking unauthorized absences and falsifying time records, so after a failed attempt to follow Mr. Cunningham’s vehicle to confirm their suspicions, his bosses referred the matter to the Office of the Inspector General (OIG) to investigate further.
Not to be thwarted again by petitioner’s heightened awareness that the man was possibly onto him, OIG subpoenaed Cunningham’s E-Z pass records and placed GPS tracking devices on his vehicle to obtain a 30 day picture of Cunningham’s movements. The GPS evidence was damning and Cunningham was brought before a Civil Service disciplinary hearing. Although petitioner moved to suppress the evidence obtained via satellite tracking, the Hearing Officer denied the motion and recommended termination of employment. Cunningham’s bosses adopted the findings, and this Article 78 proceeding followed to see if they could legally can him.
According to the Appellate Division, they could. The administrative proceeding that found Cunningham guilty of most of the charges brought against him was not required to follow the same evidentiary rules applicable to a criminal proceeding. In People v. Weaver, New York State’s highest court held that when investigating criminal activity, absent exigent circumstances, “the installation and use of a GPS device to monitor an individual’s whereabouts requires a warrant supported by probable cause.”
When you work for the taxpayers, no such proscription exists. The test is “reasonableness.” And here, the court found it “undisputed that respondent had reasonable grounds at the inception of the use of the GPS to support individual misconduct by petitioner…Respondent [state employer] clearly had a responsibility to curtail the suspected ongoing abuse of work time not only to preserve its integrity, but also to protect taxpayer’s monies.” (Very refreshing to see someone cares where our tax monies go in this time of billion dollar bailouts to undisclosed recipients.)
The one-month-satellite tail on petitioner’s vehicle was not unreasonable, particularly since Cunnigham had previously given investigators the slip.
As a taxpayer, one can only cheer. As a citizen, the dissent may have the higher ground: “In determining that the unfettered use of GPS devices ‘to pry into the details of people’s daily lives is not consistent with the values at the core of our State Constitution’s prohibition against unreasonable searches’ (People v. Weaver [citation omitted], the Court of Appeals did not create a new law, but articulated the constitutional protection to which petitioner was entitled.”
With every advance in technology, we seem to be more accepting that we are always being watched. In 1928, Herbert Hoover promised a chicken in every pot and a car in every garage.
Now the promise is a camera on every corner and satellite imagery for every car that pulls out of the garage.
The jury’s still out on whether we’re more protected or less free.
Either way, we are more photographed, tracked and filmed than ever before.
So smile for the cameras.
