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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 precedent."

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 work time.

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.

The 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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