privacy in the age of tracking technology: … · talia e. neri* introduction ... v. gps technology...

PRIVACY IN THE AGE OF TRACKINGTECHNOLOGY: WHY G.P.S. TECHNOLOGY

SHOULD NOT BE USED TO TRACKPROCESS SERVERS

Talia E. Neri*

Introduction .................................................. 210I. Service of Process ..................................... 214

A. Requirements for Lawful Service of Process ........ 214B. Abuse of Process ................................. 216C. Consequences of Abuse of Process ................. 220

II. Fourth Amendment ................................... 223A. The Fourth Amendment Protects Expectations of

Privacy that Society Would Deem Reasonable ...... 223B. The Development of the Justification for the Use of

"Sense-enhancing" Technology .................... 224C. The Introduction of the "Readily Available"

Standard ......................................... 227D. The Fourth Amendment's Protection of Privacy

Expectations in the Workplace .................... 227III. Global Positioning System (GPS) Technology and

Employee M onitoring ................................. 228A. The History of GPS Technology .................. 228B. Employee M onitoring ............................ 229C . Privacy Issues ..................................... 230

IV. The Recent Impact of GPS Technology in EmploymentSettings .............................................. 233A. New York City Taxicabs .......................... 233B. Department of Education ......................... 238

V. GPS Technology Should Not be Used to Track ProcessServers ............................................... 24 0A. Society Maintains a Reasonable Expectation of

Privacy in the W orkplace ......................... 241i. The Danger of Implementing GPS Technology

in this Government-regulated Setting .......... 242

Benjamin N. Cardozo School of Law, Candidate for J.D., 2010; Loyola College in Mary-land, B.B.A., 2007.

209

210 CARDOZO PUB. LAW, POLICY & ETHICS J.

ii. GPS Surveillance is Unlikely to Prevent Abuseof Process .................................... 245

B. Society Maintains a Reasonable Expectation ofPrivacy in Public Spaces .......................... 246

C. Kyllo's "Readily Available" Standard Does NotAdequately Address Privacy Concerns Raised byTechnological Surveillance ......................... 248

D. Society Maintains a Reasonable Expectation ofPrivacy Against the Use of "Sense-enhancing"Technology ....................................... 249

C onclusion ................................................... 253

INTRODUCTION

The telescreen received and transmitted simultaneously. Any soundthat Winston made, above the level of a very low whisper, would bepicked up by it; moreover, so long as he remained within the field ofvision which the metal plaque commanded, he could be seen as well asheard. There was of course no way of knowing whether you werebeing watched at any given moment. How often, or on what system,the Thought Police plugged in on any individual wire was guesswork.It was even conceivable that they watched everybody all the time. Butat any rate they could plug in your wire whenever they wanted to.You had to live-did live, from habit that became instinct-in theassumption that every sound you made was overheard, and, except indarkness, every movement scrutinized.'

George Orwell foresaw a future in which the government overseesand controls every movement its citizens make. He warned of the perilsof extending the application of technology too far, to a point wheresociety bears no resemblance to that of the past. Orwell posed whatmay seem to many a far-fetched and paranoid image of the future, butwith ever-evolving technological advances moving our society forward atlightning speed, he may not have been very far off.

New technology and human ingenuity are being used to achieveamazing feats like discovering new sources of energy, curing disease, andmaintaining some of the world's leading industries, and we have eagerlywelcomed these advances. If technology can be used to fix a problem, itis often assumed that society generally benefits as a whole. Yet despite

1 GEORGE ORWELL, 1984 3 (New American Library 1961) (1949).

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our new capabilities to do things we never thought possible, it hasn't allbeen for the better. In fact, some of our past technological implementa-tions are coming back to haunt us. Nuclear power creates much of ourelectrical energy, but power plants that produce this energy can causecancer, 2 and the technology has been wielded to create weapons of massdestruction that have scarred history.3 New medicines intended to solvehealth problems can result in unforeseen long-term side effects or birthdefects.' The industrial revolution has made our society vastly moreefficient, but its resulting pollution has left us facing a daunting envi-ronmental crisis that is disrupting our planet's delicate balance. 5 Lackof restraint and even good judgment have sometimes caused greaterproblems than those we were attempting to solve in the first place.

One such problem facing American society that has recentlyevolved in the legal field involves the initial stages of a legal proceeding,specifically, service of process. Service of process is one of the first stepsto getting a legal proceeding off the ground; it is a means of obtainingjurisdiction over the other party or their property,6 as well as notifying aparty of the pendency of a legal action and his or her right to defendagainst it. 7 Typically, when something goes awry and a party does notreceive this legal notice, this can result in a failure to appear before the

2 See, e.g., Ian Fairlie, Childhood Cancers Near German Nuclear Power Stations: The Ongoing

Debate, 25 MED., CONFLICT & SURVIVAL 197 (2009) (discussing a 2007 German study report-ing increases in the incidence of all cancers and leukemia in children living within five kilome-ters of all German nuclear power stations).

3 See, e.g., U.S. Dep't of Energy, Office of History and Heritage Res., The Atomic Bombingof Hiroshima, http://www.cfo.doe.gov/me70/manhattan/hiroshima.htm (last visited Nov. 25,2009) (describing the 1945 bombing of Hiroshima and its effects).

4 See, e.g., U.S. Food and Drug Admin., Congressional Statement of Sandra Kweder, Dep-uty Director of the Office of New Drugs, Center for Drug Evaluation and Research, on Vioxxand Drug Safety before the Senate Committee on Finance (Nov. 18, 2004), http://www.fda.gov/NewsEvents/Testimony/ucm 113235.htm (last visited Nov. 25, 2009) (discussing Merck's deci-sion to voluntarily take its prescription drug Vioxx off the market when it discovered that thedrug, prescribed to reduce the signs and symptoms of osteoarthritis and acute pain in adults, andto treat primary dysmenorrheal, was linked to cardiovascular problems and stroke).

5 See, e.g., U.S. Envtl. Prot. Agency, State of Knowledge, http://www.epa.gov/climatechangelscience/stateofknowledge.html (last visited Nov. 25, 2009) (explaining what scientists havelearned about climate changes caused by human activities, and the probable effects of climatechange). For information on climate change generally, see U.S. Envtl. Prot. Agency, ClimateChange, http://www.epa.gov/climatechangelindex.html (last visited Nov. 25, 2009).

6 Parks v. Neuf, 578 N.E.2d 282, 285 (I11. App. Ct. 1991).

7 New York City Department of Consumer Affairs Exploratory Public Hearing on Process ServerPractices in New York City 2 (June 13, 2008) (on file with author) [hereinafter Mintz] (statementof Jonathan Mintz, Comm'r of the New York City Department of Consumer Affairs).

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court, which can lead to adverse consequences such as frozen bank ac-counts, detrimental effects on credit ratings, and other financial hard-ship.8 Often the reason why a party does not receive legal notice isbecause there was abuse in the service of process. This problem iswidely known among legal professionals who see the adverse effects ofabuse of process in their daily work.9

One possible remedy and/or preventative solution to this abuse ofprocess problem is the use of surveillance technology, such as GlobalPositioning System (GPS) technology,'0 which can be used to track themovements of an individual or object. GPS technology, which is cur-rently being used by law enforcement in a beneficial way," could beimplemented in the process service industry in a similarly beneficial wayif it could ensure that process servers actually go where they allege tohave gone in their affidavits of service.' 2 The problem, however, withusing GPS technology occurs when this surveillance technology goes toofar. The use of this technology raises many privacy concerns such aswhether we are surrendering our fundamental privacy values to the in-

8 See infra text accompanying notes 59-71 for discussion of the consequences of abuse of

process to various legal entities.

9 See also Mintz, supra note 7, at 3.For many years there has been a perception shared by some attorneys, and courtofficials, and others working in the civil legal system that noncompliance with the lawby some in the process serving industry deprives a substantial number of city residentsof notice when businesses such as debt collectors or landlords take legal action thatwill affect their homes, earnings or savings.

Id. at 3.10 See infra text accompanying notes 126-36 for discussion of CPS technology.

11 GPS technology has previously been used fairly successfully by law enforcement to trackand transmit a domestic violence abuser's location so that he does not violate a protective orderfiled against him by his victim, thus ensuring that domestic violence abusers do not come withina restricted range that is deemed too close to a past abuse victim. See generally Leah Satine,Maximal Safety, Minimal Intrusion: Monitoring Civil Protective Orders Without Implicating Pri-vacy, 43 HA v. C.R.-C.L. L. Rev. 267 (2008) (discussing the use of GPS monitors to transmit abatterer's location when he violates a protective order). Law enforcement has also used GPStechnology to track the movements of criminal suspects on public roads to help them gatherevidence and solve cases. See, e.g., United States v. Knotts, 460 U.S. 276 (1983) (law enforce-ment officers traced the movement of respondent's car by putting a beeper inside a five gallondrum containing chloroform purchased by one of the codefendants); People v. Lacey, 3 Misc.3d1103(A), 2004 WL 1040676 (N.Y. County Ct. 2004) (detectives placed a GPS device on a carbelonging to a burglary suspect). Employers have also begun to use GPS technology to monitoremployees for misconduct. See, e.g., Dep't of Educ. v. Halpin, OATH Index No. 818/07 (Aug.9, 2007), available at http://archive.citylaw.org/oath/07-Cases/07-818.pdf; see infra text accom-panying notes 209-25 for a discussion of this case.

12 See infra text accompanying notes 29-32.

PRIVACYAND TRACKING TECHNOLOGY

terests of the government13 and the legal system," and whether weshould be concerned that extending the application of this type of tech-nology across a wider range of industries will have negative conse-quences down the road.15

In the opinion of this author, extending the use of GPS technologyto the process service industry is a step down a slippery slope that mayeventually bring us tumbling toward a society with an overreaching gov-ernment, and an open door to overreaching employers. What mightseem to be a minor intrusion on personal privacy could actually be astep closer to excessive intrusiveness invading too many aspects of ourpersonal lives. Numerous concerns and questions arise, such as: whateffect will such surveillance have on the relationship between employersand their employees? What are the consequences of perceived distruston job performance and career satisfaction? And if we allow technologi-cal surveillance in this setting, how do we draw the line and distinguishthe use of surveillance in other contexts? How can we ensure that gov-ernment or employer interests, which are often legitimate ends, are notsimply used to justify the means of intrusion on our personal privacy?How can this be determined within an objective legal framework, ratherthan on a case-by-case basis?

Section I begins with an overview of service of process, as well aswhat constitutes abuse of process and its consequences to all parties andentities in our legal system. Section II analyzes leading Fourth Amend-ment case law regarding claims of privacy violations due to some formof monitoring. Section III explains how GPS technology operates, itshistorical development and applications, and the effects of using thisand similar technology in the workplace. Section IV analyzes the recent

13 In some jurisdictions, the government licenses process servers and sets forth requirementsfor proper service of process. See Mintz, supra note 7 at 2-3 ("Process service is one of fifty-fivelicenses that the Department [DCA] administers .... Those who have chosen to serve process asan occupation are required by licensing laws to comply with these [New York Civil PracticeRules] service requirements.").

14 The legal system depends on proper service of process if it is to function properly.

15 The use of monitoring technology like GPS also raises the concern that its use mightviolate the Fourth Amendment's guarantee of privacy to all citizens. This argument, however,often loses out against other legitimate interests, like the government's need to adequately regu-late various industries, employers' needs to efficiently manage their staff and resources, and theinterests of our criminal justice system in catching and punishing criminals. See, e.g., Buliga v.New York City Taxi Limousine Comm'n, No. 07 Civ. 6507, 2007 WL 4547738, at *3(S.D.N.Y. Dec. 21, 2007); Alexandre v. New York City Taxi and Limousine Comm'n, No. 07Civ. 8175, 2007 WL 2826952, at *10 (S.D.N.Y. Sept. 28, 2007).

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214 CARDOZO PUB. LAW, POLICY & ETHICS j[V

impact that GPS technology has had in two specific employment set-tings. Section V presents this author's concerns over the use of GPStechnology to track the movements of process servers and proposes asolution to strike a balance between privacy concerns and the harsh im-pact that improper service of process can have on affected individuals.

I. SERVICE OF PROCESS

The basic function of service of process is to ensure "that no personshall be deprived of property without due process. Central to the rightof due process is the right to receive meaningful and timely notice of alawsuit, and the opportunity to be heard by a neutral arbiter."' 6 Processtypically consists of a summons and a copy of the complaint, and mustbe served upon each defendant in the lawsuit. 17 A process server'8 gen-erally serves the summons and complaint according to procedures laidout in federal, state, and city laws. In New York City, a process server isrequired to be licensed by the New York City Department of ConsumerAffairs.' 9 Anyone who is at least 18 years of age and not a party to thelawsuit can fill this role. 20

A. Requirements for Lawful Service of Process

Federal, state, and city law generally enforce the same requirementsfor proper service of process, and it is appropriate to discuss them ingeneral terms. 2' The preferred method of service is personal service,

16 Mintz, supra note 7, at 2.

17 FED. R. Civ. P. 4(c)(1). See also N.Y. COMP. CODES R. & REGS. tit. 6, § 2-231 (1991)("'Process' shall mean a summons, notice of petition, order to show cause, subpoena, notice,citation or other legal paper issued under the laws of the State of New York directing an appear-ance or response to a legal action, legal proceeding or administrative proceeding ....

18 N.Y. COMP. CODES R. & REGS. tit. 20, § 20-404a (1991).

A process server is a person engaged in the business of serving or one who purports to

serve or one who serves personally or by substituted service upon any person, corpora-tion, governmental or political subdivision or agency, a summons, subpoena, notice,citation or other process, directing an appearance or response to a legal action, legalproceeding or administrative proceedings.

Id.19 N.Y. CoMP. CODES R. & REGS. tit. 20, § 20-403 (1991) ("It shall be unlawful for any

person to be employed as or perform the services of process server without a license therefore.").20 FED. R. Civ. P. 4 (c)(2). See also N.Y. C.P.L.R. 2103(a) (McKinney 1991) ("Except

where otherwise prescribed by law or order of court, papers may be served by any person not a

party of the age of eighteen years or over.").21 This discussion focuses on the requirements to serve process in New York State.

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meaning actual delivery of the papers to each defendant,22 and it mustbe attempted before utilizing other methods. If personal service is notpossible, a process server may instead leave a copy of the legal docu-ments with a "clerk or other person in charge" at the person's office, orat the person's "dwelling or usual place of abode with someone of suita-ble age and discretion who resides there. 23 This is known as "substi-tuted service."' 24 A process server may also mail the documents to theperson's last known address, or leave them with the court clerk if theperson's address is unknown. 25 New York also allows process servers to"nail and mail" if after "due diligence," 26 neither personal nor substi-tuted service can be accomplished. 27 This method, also known as "con-spicuous service of process," involves posting a copy of the papers on, orsliding them under, the entrance door to the person's dwelling or busi-ness, or on any other conspicuous part of the property, as well as mail-ing a copy to the defendant's last known residence.28

The process server must keep a record of relevant information todemonstrate proof of service, known as an affidavit of service. 29 Itshould generally provide details such as the papers served, the individualserved, the date, time, address at which service was made, and any otherfacts necessary to show that service was made and received by lawful

22 ATTORNEY GEN. OF THE STATE OF N.Y., N.Y.C. DEP'T OF INV., & N.Y.C. DEP'T OF

CONSUMER AFFAIRS, A JOINT INVESTIGATIVE REPORT INTO THE PRACTICES OF SEWER SER-

VICE IN NEW YORK CITY 5 (1986) [hereinafter REPORT].

23 FED. R. Civ. P. 5(b)(2)(B)(i), (ii). See also Legal Services NYC, Written Testimony of

David Robinson before the New York City Department of Consumer Affairs Exploratory PublicHearing on Process Server Practices in New York City 2 (June 13, 2008), http://www.legalservicesnyc.org/index.php?option=com_content&task=view&id=172&Itemid= 142; (follow"Click here for the PDF" hyperlink) [hereinafter Robinson] (noting that in addition to be ofsuitable age and discretion, this person must also reside or be employed at the residence). NewYork additionally requires that in the event that service must be performed upon another suchindividual, within twenty days, the documents must also be mailed to the person at their lastknown residence, or mailed by first class mail to the person "at his or her actual place of business

in an envelope bearing the legend 'personal and confidential' and not indicating on the outsidethereof, by return address or otherwise, that the communication is from an attorney or concernsan action against the person to be served." N.Y. C.P.L.R. 308(2) (McKinney 1991).

24 REPORT, supra note 22, at 5.

25 FED. R. Civ. P. 5(b)(2)(C), (D).

26 "Interpreted by the courts to mean at least two attempts." REPORT, supra note 22, at 5.

27 Id.

28 N.Y. C.P.L.R. 308(4) (McKinney 1991). See also REPORT, supra note 22, at 6; Robinson,

supra note 23, at 2.29 FED. R. Civ. P. 4 (l)(1). See also N.Y. C.P.L.R. 306(d) (McKinney 1991).

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individuals. 3 ° If service is made upon an individual (a defendant, oranother individual by substituted service), New York law requires thatthe affidavit include a description of the individual served.3' If processcannot be served upon a person and must be made by conspicuous ser-vice, New York law also requires the process server to make note of the"dates, addresses and the times of attempted [personal] service . ."32

B. Abuse of Process

Abuse of process occurs when the requirements for proper serviceof process are not met or are improperly carried out, thereby undermin-ing its basic and essential function of providing a party with notice of apending legal action against him, as well as notice of his opportunity todefend himself.3 3 Such abuse of process is a widespread problem, andthe number of default judgments34 that result is staggering.35 The nega-tive effects of abuse of process seem to warrant the implementation of

30 N.Y. C.P.L.R. 306(a) (McKinney 1991). The Rules & Regulations of the City of New

York note additional information to be included in the record, including "the title of the action;the name of the person served, if known; . . . the court in which the action has been com-menced; the index number of the action, if known" (internal subsection numbers omitted).N.Y. CoMP. CODES R. & REGS. tit. 6 §§ 2-233(a)(2)(i), (ii), (vi), (vii) (1991).

31 N.Y. C.P.L.R. 306(b) (McKinney 1991). This includes details like "sex, color of skin,hair color, approximate age, approximate weight and height, and other identifying features." Id.

See also N.Y. COMp. CODES R. & REGS. tit. 6 § 2-233(a)(3) (1991).32 N.Y. C.P.L.R. 306(c) (McKinney 1991). See also N.Y. COMP. CODES R. & REGS. tit. 6

. 2-233(a)(4) (1991). Recording requirements are even more stringent for process servers li-censed in New York City by the New York City Department of Consumer Affairs. See N.Y.COMP. CODES R. & REGS. tit. 6 § 2-233(b) (1991).

33 See, e.g., REPORT, supra note 22, at 4-5 ("Proper service is a critical due process and

jurisdictional prerequisite to permit defendants to protect their rights and receive a fair hearingin court. A person may have a valid defense but be denied a day in court solely because ofunawareness of the proceeding.").

34 A default judgment is "[a] judgment entered against a defendant who has failed to plead

or otherwise defend against the plaintiffs claim." BLACK'S LAw DICTIONARY 449 (8th ed.2004); see also Fishman v. Fishman, 377 N.Y.S.2d 166, 166 (N.Y. App. Div. 1975).

35 See, e.g., MFY Legal Services, Inc., Justice Disserved: A Preliminary Analysis of the Excep-tionally Low Appearance Rate by Defendants in Lawsuits Filed in the Civil Court of the City ofNew York (June 2008), http://www.mfy.org/JusticeDisserved.pdf [hereinafter Justice Dis-served] (investigation uncovered an exceptionally low rate of response by defendants in debtlawsuits); see also MFY Legal Services, Inc., Written Testimony of Carolyn E. Coffey before theNew York City Department of Consumer Affairs Public Hearing on Process Server Practices 1

(June 13, 2008), http://www.mfy.org (follow "News" sidebar hyperlink; then follow "NYC De-partment of Consumer Affairs Public Hearing on Process Server Practices (June 13, 2008)"hyperlink under "Testimony") [hereinafter Coffey] (referencing MFY's investigation which re-vealed that "more than 90 percent of defendants failed to appear to defend themselves in

2007").


some sort of check on the effectiveness of process servers that perhapssurveillance technology like GPS could provide.

Abuse of process is not a recent problem; in 1986, the AttorneyGeneral of New York (AG), along with the New York City Departmentof Consumer Affairs (DCA) and the New York City Department ofInvestigation (DOI) reported on a two-year joint investigation of "sewerservice" running rampant in New York City.36 The report defines sewerservice as "[f] raudulent service of process by licensed process servers," 37

or "the deliberate failure of process servers to make proper service ondefendants in civil lawsuits. '38 Sewer service is generally characterizedby a server's ignoring the laws and regulations instructing proper meth-ods of service, and filing false affidavits of service in court.3 9

The abuses in the process service industry in New York City thatwere uncovered in the 1980s continue today. And while improper ser-vice of process affects anyone who falls victim to it, the negative conse-quences on low-income individuals are much more substantial. 40 TheDCA took up this issue again when it held a public hearing on June 13,2008, inviting testimony from judges, industry representatives, consum-ers, and consumer advocates to shed light on the problem of abuse inthe process service industry.4' Some of the providers of legal services tolow-income New Yorkers reported their observations of rampant abuseat the hearing.4 2 According to David Robinson, a representative of Le-

36 The intensive investigation uncovered sewer service in three different ways. First, major

licensed process servers in New York City were identified and placed under surveillance. Thediscovery of fraudulent service of process led to the indictment of five process servers by a grandjury. Second, an undercover investigator worked as a process server for one month, working anaverage of fifteen hours per day, six days per week. This undercover operation demonstrated theimpossibility of process servers' properly and legally serving the massive amounts of process they

were claiming to have served industry-wide. Third, an analysis of the conflicting records of

several process service agencies revealed that much of the process alleged to have been servedcould not have been served based on the alleged time and location of service. For an in-depthdiscussion of this investigation and its findings, see generally REPORT, supra note 22.

37 Id. at 1.38 Id. at 4.

39 Id. at 1.40 Robinson, supra note 23, at 1 ("[Qjuestionable service practices have the most impact on

the poor and those least capable of obtaining relief from an improper default judgment.").41 Press Release, New York City Department of Consumer Affairs, Department of Con-

sumer Affairs Holds Public Hearing to Investigate Unscrupulous Practices of the Process ServerIndustry in New York City Uune 13, 2008), http://www.nyc.gov/html/dca/html/pr2OO8/pr_061308.shtml [hereinafter Press Release].

42 Coffey, supra note 35, at 1 ("In almost 100 percent of the consumer [debt] cases we see,

the defendant was not served properly."); Robinson, supra note 23, at 1 ("Legal Services NYC

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gal Services NYC, approximately fifteen percent of notices of petitionfiled in 2007 resulted in default judgments against residentialrespondents.1

3

While the 1986 investigation and report revealed the extent of anindustry-wide sewer service problem in New York City, the DCA's re-cent hearing revealed greater details about how this improper service isaccomplished. The erroneous information that process servers recordon affidavits of service4 4 varies greatly. If service is actually made upon"a person of suitable age and discretion, '45 as required, "the person de-scribed is inevitably not someone the defendant knows, much less liveswith. '46 Frequently, however, an affidavit will state that service wasmade upon a fictitious individual.47 For example, in several instances,an affidavit has stated that service was made upon an individual living inthe respondent's home whose name and description were unknown tothe respondent.48 In another example, a process server alleged that heserved another person (other than the respondent) in the home, claim-ing that the respondent was not home when service was attempted. Inreality, the respondent was wheelchair-bound and confined to his home,and therefore clearly available to be served.4 9

Affidavits of service may also contain other forms of completefabrications. For example, an affidavit may state that service was eitherpersonally made or mailed to the respondent's residence when in fact it

attorneys have observed numerous incidents of process server misconduct in our housing prac-

tice."); Written Testimony of Claudia Wilner, Staff Attorney, Neighborhood Economic Devel-

opment Advocacy Project before the New York City Department of Consumer Affairs

Exploratory Public Hearing on Process Servers in New York City 2 (June 13, 2008), http://

www.nedap.org (follow "Resources" hyperlink; then follow "Publications" hyperlink; then fol-

low "Comment Letters/Testimony" hyperlink; then follow "Written testimony delivered to NYC

Department of Consumer Affairs, on process server practices that harm low income New

Yorkers and deprive them of due process" hyperlink) [hereinafter Wilner] ("A sampling of our

database shows that out of the 92 cases involving debt collection lawsuits opened between

March and May 2008, we identified improper service in more than half of the cases. In addi-

tion, we are not certain that proper service occurred in the other cases.").

43 Robinson, supra note 23, at 3 (stating that 45,013 default judgments resulted from

293,732 petitions filed).

44 See supra text accompanying notes 29-32.

45 See supra text accompanying note 23.

46 Coffey, supra note 35, at 1.

47 Id.; Wilner, supra note 42, at 2.

48 Coffey, supra note 35, at 2; Wilner, supra note 42, at 2.

49 Coffey, supra note 35, at 2; Wilner, supra note 42, at 2.

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was not.50 Sometimes, conspicuous service of process"' is the first at-tempt at service,5 2 even though this manner of service should only beused if the process server cannot locate and serve the respondent or an-other suitable individual in person.5 3 In other cases, it may becomeapparent that a process server has not used all the available resources thathe or she has access to in order to locate the defendant and determinehis or her actual residence in order to personally serve them. 4 In onecase, respondent, a resident of Georgia for twenty years, was served ather previous New York address by a process server who affixed a copy ofthe summons and complaint on the door and mailed a copy to thatsame New York address.55 The respondent learned of the lawsuit onlywhen her joint bank account was restrained as a result of the judgmententered against her.

Victims of improper service, or lack of service, may claim an abuseof process defense in court.5 6 However, as Judge Fisher stated in her

50 Coffey, supra note 35, at 1. See also Robinson, supra note 23, at 4. In his testimony, Mr.

Robinson related two actual cases in which this occurred. In the first case, a landlord was

required to prove by affidavit that a tenant was not in the military before evicting the tenant.This rule was put into place in order to protect soldiers and their dependents when a soldier

cannot be present to defend himself due to military service. The process server, however, falsely

stated in his affidavit that the soldier's wife, living at the residence at the time, had stated that

she was not dependent upon anyone in the military. This resulted in the wife's eviction, even

though her husband was a soldier stationed in Iraq. In the second case, the affidavit of service

falsely stated that personal service was made upon the respondent on a certain date when he was

at his home in the Bronx. In reality, the respondent was in a Long Island treatment facility for

drug rehabilitation. Robinson, supra note 23, at 4.51 See text accompanying notes 26-28.

52 Robinson, supra note 23, at 1-2.

53 Id.54 Coffey, supra note 35, at 2-3.55 Id. at 2.56 See N.Y. C.P.L.R. 317 (McKinney 1991).

A person served with a summons other than by personal delivery to him or to his

agent for service designated under rule 318, within or without the state, who does not

appear may be allowed to defend the action within one year after he obtains knowl-

edge of entry of the judgment, but in no event more than five years after such entry,

upon a finding of the court that he did not personally receive notice of the summons

in time to defend and has a meritorious defense. If the defense is successful, the court

may direct and enforce restitution in the same manner and subject to the same condi-

tions as where a judgment is reversed or modified on appeal.

Id.; see also New York City Department of Consumer Affairs Exploratory Public Hearing on Process

Server Practices in New York City 32 Uune 13, 2008) (on file with author) [hereinafter Fisher]

(statement of J. Fern Fisher, Civil Court of the City of New York) (noting improper service as an

available defense); FED. R. Crv. P. 12(b)(5) (listing "insufficient service of process" as an availa-

ble defense to be asserted by a motion before pleading).


testimony before the New York City DCA Public Hearing, this route israrely pursued. 57 Failure to claim abuse of process is likely due to lack ofinformation regarding proper service requirements and the availabilityof this defense in court, as well as lack of funds for legal services organi-zations that provide free legal services for individuals dealing with theseissues.58

C. Consequences of Abuse of Process

Respondents in legal proceedings who have been improperly servedcan face harsh consequences that may have long-lasting effects. TheSecond Circuit specifically addressed the impact of falsified affidavits ofservice in United States v. Wiseman. 59 In that case, two professional pro-cess servers admitted to routinely filling out affidavits with false infor-mation, stating that individuals were served with process when, in fact,they were not.60 As a result, default judgments were entered against theindividuals named as defendants in the legal actions to which the affida-vits of service related.6 In some cases, these default judgments led toincome executions (also called wage garnishments),62 while some indi-viduals found their credit ratings lowered and were unable to obtaincredit from lenders.63 The most frequently noted problem among legalprofessionals serving low-income communities is wage garnishment,64

57 Fisher, supra note 56, at 34 ("[S]ervice is one of the defenses that is very seldom litigatedin my court, both [in] landlord-tenant [cases] and consumer [credit cases]."). See also REPORT,

supra note 22, at 5 ("Sewer service is rarely subject to challenge. Although a defendant maycontest service through a traverse hearing in Court, such hearings are rarely sought."); Fisher,supra note 56, at 27 ("[M]ost cases where there is an allegation of lack of service, those cases areeither discontinued, or they're settled without dealing with the service issue.").

58 Fisher, supra note 56, at 33-34.

59 United States v. Wiseman, 445 F.2d 792 (2d Cit. 1971).60 Id. at 793-94.

61 Id. at 794.

62 A garnishment is "[a] judicial proceeding in which a creditor (or potential creditor) asks

the court to order a third party who is indebted to or is bailee for the debtor to turn over to thecreditor any of the debtor's property (such as wages or bank accounts) held by that third party."BLACK's LAW DICTIONARY 702 (8th ed. 2004).

63 Wiseman, 445 F.2d at 794, 797 n.6.64 See, e.g. Coffey, supra note 35, at 2 ("When people of limited means, in particular, lose

access to their bank accounts, they are unable to pay their bills and their rent, they are unable topay for food or medicine, and they are unable to pay for transportation to their jobs."); Robin-son, supra note 23, at I ("In particular, questionable service practices have the most impact onthe poor and those least capable of obtaining relief from an improper default judgment."); Wil-net, supra note 42, at 1 ("Improper service causes great harm to low income New Yorkers.").

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which is particularly devastating for these individuals who are alreadystruggling to make ends meet with their limited means.

Often, people are forced to expend large sums of money repairingthe damage caused by a default judgment against them. In one in-stance, a woman spent $70,000 plus court costs in order to reclaim herex-husband's share of their home when it was sold in a bankruptcy pro-ceeding of which she was never notified.65 In another example, a manfaced traumatic consequences when he was not notified of a hearing todetermine the amount of child support he would be required to pay.6 6

At the hearing, the amount was set based on his ex-wife's claim that hisincome was $235,000 greater than his actual income. As a result hefell into arrears on child support, lost his share of his former home, andended up in jail.68

One respondent was denied public housing because a default judg-ment had been entered against him and had affected his credit rating. 69

The affidavit of service stated that another individual of suitable age anddiscretion was served at his dwelling place, even though the respondentlived alone.70 The respondent was unable to have the judgment vacatedor the case dismissed in the time allotted by the housing agency to cor-rect his credit report; consequently, the respondent became ineligible forpublic subsidized housing.71

Parties to a lawsuit are not the only ones who suffer from a processserver's negligent service. For example, in the 1993 case Kleeman v.Rheingold,72 the Court of Appeals of New York held that a lawyer couldbe held liable for a process server's negligence in serving process improp-erly upon the defendant's secretary rather than the defendant himself.73

This was a unique case in which the plaintiff, rather than the defendant,was harmed by the process server's alleged negligence. At a traverse

65 Bruce Lambert, What Happens If Process Server Doesn't Serve?, N.Y. TIMES, Apr. 4, 1999,

at 1, available at 1999 WLNR 3063541.66 Id.

67 His ex-wife claimed he made $250,000 per year, when he actually made $15,000. Id.

68 Id.

69 Justice Disserved, supra note 35, at 9.

70 Id.

71 Id.

72 Kleeman v. Rheingold, 614 N.E.2d 712 (N.Y. 1993).

73 Id. at 718. See also Sidney H. Stein, New York Court ofAppeals Roundup: Vicarious Liabil-

ityfbr Process Server, 209 N.Y. L.J. 3, 3 Uune 10, 1993).

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hearing74 it was revealed that while the legal documents for the pendingmedical malpractice lawsuit were served on time, they were served uponthe doctor's secretary, and were therefore improperly served. 75 By thetime the traverse hearing took place, the statute of limitations had runon the cause of action, and the plaintiff brought a legal malpracticelawsuit against her lawyer for liability based on the process server's negli-gence.76 The court held that although a process server is an indepen-dent contractor (which normally frees an employer of potential liabilityfor the independent contractor's actions),77 the duty that lawyers owe toclients is non-delegable, meaning that lawyers cannot escape liability forbreach of that duty simply by electing someone else to carry it out.78

Thus, an attorney may be held "vicariously liable to his or her client forthe negligence of a process server whom the attorney has hired on behalfof that client." 79

Finally, the justice system suffers as a result of abuse of process.Former Chairman of the New York State Bar Association's civil litiga-tion section, Mark C. Zauderer, is quoted as saying, "[ii t's a shame andit's disgraceful when you get massive fraud. It not only has implicationsfor the people involved, but when the public sees that, it impairs confi-dence in the system."8 ° Our justice system is part of the foundation ofAmerican society. If properly functioning, the justice system should in-spire faith and trust in the average citizen that certain fundamentalrights, interests, and values are protected. Abuse of process and otherbreakdowns in the system undermine that trust.

74 N.Y. COMP. CODES R. & REGS. tit. 6 § 2-236 (1991) (mentions "hearings commonlyknown as 'traverse hearings,' where service of process is contested").

75 Kleeman, 614 N.E.2d at 714. See also Stein, supra note 73, at 3.76 Kleeman, 614 N.E.2d at 714. See also Stein, supra note 73, at 3.

77 Kleeman, 614 N.E.2d at 715. See also Stein, supra note 73, at 3.78 Kleeman, 614 N.E.2d at 714.

[P]roper service of process is a particularly critical component of a lawyer's over-allresponsibility for commencing a client's lawsuit, since a mistake or oversight in thisarea can deprive the client of his or her day in court regardless of how meritorious theclient's claim may be. Given the central importance of this duty, our State's attorneyscannot be allowed to evade responsibility for its careful performance by the simpleexpedient of "farming out" the task to independent contractors.

Id. at 716. See also Stein, supra note 73, at 3.79 Kleeman, 614 N.E.2d at 713-14. To prevail on this claim, the plaintiff still needed to

prove that the process server was actually negligent and that she would have prevailed in theunderlying medical malpractice suit but for the process server's negligence. Id. at 717-18. Seealso Stein, supra note 73, at 4.

80 Lambert, supra note 65, at 1.

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II. FOURTH AMENDMENT

The rights of the people to be secure in their persons, houses, papers,and effects, against unreasonable searches and seizures, shall not beviolated, and no Warrants shall issue, but upon probable cause, sup-ported by Oath or affirmation, and particularly describing the place tobe searched, and the persons or things to be seized. 8 '

This brief provision of our Constitution often comes into playwhenever privacy interests are, or may be, at stake. It is necessary todiscuss cases in which these issues have arisen because the standards thathave come out of these cases bear heavily on a determination of whetherthe use of GPS technology to monitor process servers is, or should be,permissible.

A. The Fourth Amendment Protects Expectations of Privacythat Society Would Deem Reasonable

The first case to determine the level of privacy protection providedby the Fourth Amendment was Katz v. United States in 1967.82 In thatcase, FBI agents attached an electronic listening and recording device tothe outside of a public telephone booth and were able to listen to andrecord the defendant's conversations involving criminal activity.83 Inconsidering whether the government's actions constituted a search inviolation of the Fourth Amendment, the Court first made the importantdistinction that this amendment "protects people, not places. ' 84 But itwas Justice Harlan's concurrence that contained the case's most notablecontribution to Fourth Amendment analysis; in the often-quoted stan-dard, Justice Harlan stated that the Fourth Amendment requires "firstthat a person have exhibited an actual (subjective) expectation of privacyand, second, that the expectation be one that society is prepared to rec-ognize as 'reasonable. ' '8 5 The Court also stated that the FourthAmendment does not protect that which a person does in public. 86 Jus-

tice Harlan framed this principle slightly differently however, emphasiz-ing the idea of activities in "plain view" of others: "objects, activities, or

81 U.S. CONST. amend. IV.82 Katz v. United States, 389 U.S. 347 (1967).83 Id. at 348.84 Id. at 351.85 Id. at 361 (Harlan, J., concurring).86 Id. at 351 ("What a person knowingly exposes to the public, even in his own home or

office, is not a subject of Fourth Amendment protection.").

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224 CARDOZO PUB. LAW, POLICY & ETHICS J [

statements that [one] exposes to the 'plain view' of outsiders are not'protected' because no intention to keep them to [oneself] has beenexhibited.

87

B. The Development of the Justification for the Use of"Sense-enhancing" Technology

In 1980, United States v. Knotts88 reinforced the principles set forthin Katz, that the Fourth Amendment protects against warrantlesssearches and seizures by the police in places where one has a reasonableexpectation of privacy.89 In this case, law enforcement officers placed abeeper in a container of chemicals used to produce illegal drugs. 90 Thedefendant placed the container in his car and the officers were able tofollow him to a cabin where he produced the drugs. 9 At one point,officers were forced to end their "visual surveillance"-they stopped fol-lowing the car-and relied solely on the signal received from the beeperto lead them to the cabin.92 The Court nonetheless deemed this analo-gous to visual surveillance because the beeper did not reveal any infor-mation that "would not have been visible to the naked eye. "93

The Court reached this decision despite the fact that the officershad to stop their pursuit by car because the defendant was becomingsuspicious and was attempting to get them off his tracks.94 Visual ob-servation of the defendant's route and destination was not actually pos-sible, and thus the beeper technology did not enhance anything; ratherit served as a replacement. The Court even admitted this, but appar-ently deemed it unimportant in the determination of whether a searchoccurred: "[a]dmittedly, because of the failure of the visual surveillance,the beeper enabled the law enforcement officials in this case to ascertainthe ultimate resting place of the chloroform when they would not havebeen able to do so had they relied solely on their naked eyes." 95 Fromthis case, we get the notion that the use of mere sense-enhancing tech-

87 Id. at 361 (Harlan, J., concurring).

88 United States v. Knotts, 460 U.S. 276 (1983).89 Id. at 280.90 Id. at 278.91 Id.92 Id.93 Id. at 285.94 Id. at 278.95 Id. at 285.

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PRJVACY AND TRACKING TECHNOLOGY

nology is permissible 96 because it is analogous to naked eye observa-tion. 97 Further, the Court also reinforced Katz, by stating that noviolation of the Fourth Amendment exists because of the public natureof the defendant's activity: "[a] person traveling in an automobile onpublic thoroughfares has no reasonable expectation of privacy in hismovements from one place to another."98

In a factually similar case, United States v. Karo,99 law enforcementofficers replaced a drum of ether with a similar drum containing abeeper, with the consent of its owner.'0° The drum was later transferredto the defendant and was to be used for drug-related purposes.' Policetracked the movement and location of the drum, which would not havebeen possible by visual surveillance alone. 0 2 After the drum was movedto different locations over the course of several days, police were able tohunt down the drum to a self-storage facility where it was eventuallystored in a locker.'1 3 In this case, the Court took the principle enunci-ated in Knotts and applied it in reverse, finding that a search revealinginformation that could not be obtained by visual surveillance does con-stitute a violation of the Fourth Amendment. 10 4

In 1986 and 1989, the Supreme Court decided three more cases'0 5

in which it stretched the boundaries of observation achieved by "sense-enhancing" technology that might still be considered analogous to "na-ked eye" observation, and therefore be constitutionally acceptable. InCalifornia v. Ciraolo, police received an anonymous tip that the defen-dant was growing marijuana in his backyard, but were unable to visuallyverify this information because a ten-foot fence completely enclosed theyard.'0 6 Two officers flew over the backyard in a private plane to verify

96 Id. at 282 ("Nothing in the Fourth Amendment prohibited the police from augmenting

the sensory faculties bestowed upon them at birth with such enhancement as science and tech-nology afforded them in this case.").

97 Id. at 286 ("But there is no indication that the beeper was used in any way to revealinformation as to the movement of the drum within the cabin, or in any way that would nothave been visible to the naked eye from outside the cabin.").

98 Id. at 281.

99 United States v. Karo, 468 U.S. 705 (1984).100 Id. at 708.101 Id.

102 Id.

103 Id. at 708-09.104 Id, at 714.105 Florida v. Riley, 488 U.S. 445 (1989); Dow Chem. Co. v. United States, 476 U.S. 227

(1986); California v. Ciraolo, 476 U.S. 207 (1986).106 Ciraolo, 476 U.S. at 209.

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226 CARD OZO PUB. LAW, POLICY & ETHICS J [

that marijuana was growing there. 1 7 Although the Court did not usethe term "sense enhancing technology," it applied the same principalapplied by the Knotts Court to this analogous situation, and held thataerial surveillance of a person's backyard within "public navigable air-space" was not a search because the information revealed was visiblewith the naked eye. 10 8 Here, again, visual observation was simply notpossible, and it was only through the use of technology (in this instance,a plane) that the officers were able to obtain the information they wereseeking. The Court subsequently affirmed this decision in Florida v.Riley, a case involving similar facts.10 9

In Dow Chem. Co. v. United States, the plaintiff-company operated

a facility manufacturing chemicals, consisting of numerous coveredbuildings.110 Because the company denied the Environmental Protec-tion Agency (EPA) a second inspection, the agency used a "standardfloor-mounted, precision aerial mapping camera, to take photographs ofthe facility from altitudes of 12,000, 3,000, and 1,200 feet," while innavigable airspace at all times.11' Despite the fact that the companyattempted to conceal at least some of its buildings and maintained se-curity around the facility's perimeter to restrict access,' 1 2 the use of thisequipment to obtain detailed photographs of the facility from an aircraftwas not deemed a search in violation of the Fourth Amendment.' 13 TheCourt admitted that naked-eye observation could not reveal the detailsthat the government was able to observe, yet still deemed this mere "en-hancement" not a constitutional violation.

107 Id.

108 Id. at 213.

109 Riley, 488 U.S. at 450 (following Ciraolo in holding that law enforcement's surveillance ofa partially enclosed and covered greenhouse behind defendant's mobile home from a helicopter

400 feet above ground was not a search in violation of the Fourth Amendment).110 Dow Chem., 476 U.S. at 229.

111 Id.112 Id.

113 Id. at 239.

[T]he photographs here are not so revealing of intimate details as to raise constitu-

tional concerns. Although they undoubtedly give EPA more detailed information

than naked-eye views, they remain limited to an outline of the facility's buildings and

equipment. The mere fact that human vision is enhanced somewhat, at least to the

degree here, does not give rise to constitutional problems.

Id. at 238.

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C. The Introduction of the "Readily Available" Standard

In 2001, the Court in Kyllo v. United States114 gave us a new stan-dard by which to determine whether a Fourth Amendment violation hasoccurred. In that case, the government used thermal imaging technol-ogy to determine the amount of heat emanating from defendant'shouse, which led to the conclusion that special high-intensity lampswere being used inside the home to grow marijuana.115 The Court de-cided that this constituted a search in violation of the Fourth Amend-ment, 1

16 primarily basing its decision on the sophistication of the

technology used, holding that, "[w]here . .. the Government uses adevice that is not in general public use ... the surveillance is a 'search'and is presumptively unreasonable without a warrant.'117 One authorcalls this the "readily available" standard because it predicates the rea-sonableness of a search on the extent to which the technology used isreadily available to the general public.11 8 While the outcome of this casedoes not present a problem, its rationale departs from prior case law andleaves us with a standard that could potentially make constitutionallyacceptable a much wider range of technological observation than wehave seen to date. 1 9

D. The Fourth Amendment's Protection of PrivacyExpectations in the Workplace

In a different vein of Fourth Amendment analysis, it is importantto note the Supreme Court's decision in O'Connor v. Ortega,2 ' whichconcerned the Fourth Amendment rights of public employees. TheCourt stated that the nature of the workplace is determinative of theexpectation of privacy that a person may have against a search by theiremployer. 21 Office practices and policies can reduce an employee's ex-pectation of privacy,122 and in some circumstances, "offices may be soopen to fellow employees or the public that no expectation of privacy is

114 Kyllo v. United States, 533 U.S. 27 (2001).115 Id. at 29-30.116 Id. at 34-35.117 Id. at 40.118 Quin M. Sorenson, Losing a Plain View of Katz: The Loss of a Reasonable Fxpectation of

Privacy Under the Readily Available Standard, 107 DICK. L. REv. 179, 180 n.6 (2002).1 19 See generally id.120 O'Connor v. Ortega, 480 U.S. 709 (1987).121 Id. at 717.122 Id.

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228 CARDOZO PUB. LAW, POLICY & ETHICS j [

reasonable."1 23 Whatever small expectation of privacy may remain foran employee, it must be balanced against the government's "direct andoverriding interest in ensuring that the work of the agency is conductedin a proper and efficient manner.' 1 24 Given this, even if an employeehas some reasonable expectation of privacy, the Court made clear thatany work-related search by an employer will generally be deemed rea-sonable, and therefore will not violate the Fourth Amendment. 25

III. GLOBAL POSITIONING SYSTEM (GPS) TECHNOLOGY

AND EMPLOYEE MONITORING

A. The History of GPS Technology

GPS technology has been around for approximately thirty yearsand was first developed by the U.S. government for military purposes.126

The U.S. Air Force currently maintains the technology for general pub-lic use.' 2 7 The technology utilizes a system of satellites orbiting theEarth, as well as "ground monitor stations and satellite upload facilities,and user receivers. ' To put it simply, "the GPS satellites transmitsignals to the equipment on the ground,"' 129 and the technology cantypically determine a position within a few meters of the actual loca-tion. 3 The technology's locating capabilities are often even more accu-rate, 13 1 and can even determine a person's speed and direction of travel

123 Id. at 718.

124 Id. at 724.

125 Id at 720-21.

126 On Your Tracks: GPS Tracking in the Workplace, THE NATIONAL WORKRIGHTS INSTI-

TUTE 4, http://www.workrights.org (follow "Electronic Monitoring" hyperlink; then follow"NWI Report: On Your Tracks: GPS Tracking in the Workplace" hyperlink) [hereinafter OnYour Tracks]. See also Jill Yung, Big Brother is Watching: How Employee Monitoring in 2004Brought Orwell's 1984 to Life and What the Law Should Do About It, 36 SETON HALL L. REv.163, 170 (2005) ("The military developed the technology after the Vietnam War 'to form aworldwide navigational system' that could track troops on the ground in remote locations.").

127 On Your Tracks, supra note 126, at 4.

128 Id.

129 Id.

130 See Jeremy Gruber, GPS Monitoring and the Mobile Workforce, THE NATIONAL WOR-

KRIGHTS INSTITUTE 7, http://www.workrights.org (follow "Electronic Monitoring" hyperlink;then follow "Article: GPS Monitoring and the Mobile Workforce" hyperlink); On Your Tracks,supra note 126, at 5.


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while they are in motion.1 32 Because it is not affected by weather, it hasthe capacity to provide constant monitoring. 133

Today, GPS technology has exploded into all areas of society,1 34

and it is now required that all cell phone service providers include thetechnology as a standard feature on all cell phones so that emergencycalls can be immediately traced back to their source and caller loca-tion. 13 It now comes standard on most new vehicles and has droppedconsiderably in price, making it more accessible in many new outlets,and increasing its use by employers.136

B. Employee Monitoring

In the work setting, this type of monitoring technology (GPS tech-nology as well as video surveillance and Internet-use policies) can pro-vide many benefits for an employer by preventing, discovering, and evenhelping to fix problems that can occur in the workplace. If an employeeclaims disability, some form of monitoring of that employee could actu-ally reveal his good health and exploitation of the employee disabilitybenefits. 137 Monitoring employees' Internet and email use can uncoverinappropriate use of workplace technology that violates company poli-cies regarding content, restricted access to particular sites, or download-ing pirated files.' 38 A well-implemented Internet-use policy that iswidely known among employees can even prevent such occurrences.

The main concern for most employers is productivity, 139 and mon-itoring technology can be used to deter many activities that can decreaseproductivity, 40 as well as coordinate resources and employees in a way

132 Yung, supra note 126, at 170.133 On Your Tracks, supra note 126, at 5.134 See id. (providing statistics regarding the prevalence of GPS technology in different work

environments in 2003).135 Gruber, supra note 130, at 7; On Your Tracks, supra note 126, at 5.136 Gruber, supra note 130, at 7 ("The vast majority of employers in America are using some

sort of monitoring technologies in their workplace."); On Your Tracks, supra note 126, at 5-6.137 Bryce Chandler, Employee Surveillance in the Workplace, 45.3 ED C. CAN. 49, 49 (2005).138 See id.; Andrew Contry-Murray, The Pros and Cons of Employee Surveillance, 16.2 NET-

WORK MAG. 62, 63 (2001).139 See Contry-Murray, supra note 138, at 62 (discussing productivity as the "number one"

concern for companies, and the top reason that companies implement surveillance ofemployees).

140 See Chandler, supra note 137, at 49; Gruber, supra note 130, at 7 ("GPS monitoring

allows employers to maintain constant and specific track of their employees. Employers can usethis technology to determine not only location but time spent at locations and whether the

employee has gone places the employer has designated as off-limits.").

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that can dramatically increase the productivity of the workforce. Forexample, in some workplace settings in which employees move fromlocation to location, GPS technology has been successfully implementedto increase productivity."' The technology helps locate employees formore efficient dispatch assignments, which in turn provides faster re-sponse times and allows more customers to be served within the sameamount of time. 14 2

C. Privacy Issues

While the case law on the subject finds that employees have at leastdiminished privacy expectations while in the workplace, 14 3 and mayeven have no expectation of privacy if an employer implements and in-forms his employees of an effective monitoring policy, 4 many employ-ees still feel that surveillance of their work activities is a violation of theirprivacy.'4 5 The major problem is that while work activity falls neatlywithin the realm of employer concerns, when GPS technology tracks anemployee's every move, an employer learns much more information thatcan cross the line into an employee's personal life. 146 One's personal lifedoes not stop when he begins his workday, and work life and personallife inevitably overlap to some degree.'4 7 For example, surveillance tech-nology, like GPS, can tell an employer not only how many calls hisemployee has responded to that morning, but can also reveal where hisemployee went before and after work, and even where he went during

141 See Cindy Waxer, Navigating Privacy Concerns to Equip Workers with GPS, 84.8WORKFORCE MGMT. 71, 71 (2005).

142 See id. Roto Rooter technicians equipped with GPS-enabled cell phones were able to

speed up response times to job sites, use GPS for directions to job sites, and allowed 20% morecustomers to be served overall, meaning higher commissions for employees. Another company,Collegeboxes, saw similarly increased response times. Id.

143 See generally O'Connor v. Ortega, 480 U.S. 709 (1987). See also supra text accompanying

notes 120-25 for a discussion of this case.144 See O'Connor, 480 U.S. at 717. See also supra text accompanying notes 120-25 for a

discussion of this case.145 Myria Watkins Allen et al., Workplace Surveillance and Managing Privacy Boundaries, 21.2

MGMT. COMM. Q. 172, 178 (2007) ("Irrespective of legal rights, individuals often assume theyhave the right to control their private information, including when at work.").

146 See, e.g., On Your Tracks, supra note 126, at 19.147 Sample Op-Ed Column, THE NATIONAL WORKRIGHTS INSTITUTE 1, http://www.work

rights.org (follow "Electronic Monitoring" hyperlink; then follow "Sample Op-Ed Column"hyperlink) [hereinafter Op-Ed] (discussing the blurring lines between work and home life). Seealso On Your Tracks, supra note 126, at 38 (arguing that employers must accept the need foremployees to sometimes take care of personal tasks while working).

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his lunch break."4 8 When an employer has access to information aboutan employee's personal life and personal preferences,14 9 much of whichan employer has no reason or right to know, 5 ' privacy issues arise. 151

Besides a perceived violation of one's privacy rights, workplace sur-veillance negatively affects employees in various other ways. The Na-tional Workrights Institute has reported the result of various studies ofemployee monitoring and its effect on employees.' 52 While the studiesdo not discuss the use of GPS specifically, they reveal that increasedstress is consistently a major result of surveillance. 5 3 Part of the reasonfor this might be that once surveillance is implemented into the work-place setting in some form, the way that employees are evaluated oftenchanges, and employees feel increased performance pressure. 5 ' In addi-tion to stress, employees are likely to experience decreased job satisfac-tion 155 and employers can expect a corresponding increase in the rate ofturnover.'

56

An employer is likely to face additional negative consequencesfrom monitoring because it may unwittingly be perceived as placing agreater emphasis on quantity and productivity over quality of work. 157

Also, monitoring technology that is implemented as a management andsupervisory tool cannot effectively evaluate "the 'human' aspects of per-

148 See also On Your Tracks, supra note 126, at 19.

149 Id. ("At the end of the day, the employer will have enough pieces of the puzzle to create afully fleshed out picture of the off-duty life of his employee. Extremely personal and private

details of an employee's life are revealed, including their political activities, physical and mentalhealth and relationships.").

150 Op-Ed, supra note 147, at 1 (discussing how email monitoring can reveal employees'

personal information in which the employer has no legitimate interest).151 See generally On Your Tracks, supra note 126.

152 Electronic Monitoring: A Poor Solution to Management Problems, THE NATIONAL

WORKEIGHTS INSTITUTE 2, http://www.workrights.org (follow "Electronic Monitoring" hyper-link; then follow "Article" hyperlink) [hereinafter Electronic Monitoring].

153 See generally id.

154 Id.155 Id. at 2.156 Barry A. Friedman & Lisa J. Reed, Workplace Privacy: Employee Relations and Legal Impli-

cations of Monitoring Employee E-mail Use, 19 EMp. RESp. & RIGHTS J. 75, 81 (2007) (notingthat employee perceptions that their employer's monitoring policy has invaded their privacycorresponds with employee turnover intentions).

157 Electronic Monitoring, supra note 152, at 4 ("Employees responded that as the number of

tasks their employer monitored increased, employees increasingly believed that production wasmore important to their employer than quality."); On Your Tracks, supra note 126, at 20(describing the modern workplace as an "electronic sweatshop").

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formance, including work ethic, motivation, and quality."1 58 Employees

don't appreciate feeling as though their performance is based on purely

quantitative measures and that they are valued for their output alone.159

The National Workrights Institute characterizes the problem as such:

"[e]mployees are left to surrender the very aspects of individuality that

often make them good employees. '"160 The authors note that this isparticularly problematic when employers utilize GPS technology be-

cause "such monitoring by its very nature is used outside the office set-

ting, in situations where employees have traditionally enjoyed the most

autonomy and in situations that often require greater levels of indepen-dent decision making. ' 16 1

Communication between employer and employee decreases if the

roles of intermediary managers and supervisors are replaced, at least to

some degree, by technology. "[M]anagers communicate less with

surveilled employees, and surveilled employees may feel they lack oppor-

tunities to communicate freely with others and act autonomously.

Hampered communication may lower productivity, limit the develop-

ment of important informal organizational networks, and prevent em-ployees from exchanging key job-related information. 162

As employers gain access to personal details that employees maynot wish to share, they diminish the trust necessary in employment rela-

tionships, 163 replacing it instead with increased intimidation and a sense

of disempowerment. 164 Employees feel a sense of loss of control over

certain personal details about their lives and how that information will

be used. 165 Employees may also find themselves thinking twice about

every move they make, knowing that someone is watching. 166 "When a

person can no longer make her decisions based on her own thoughts

158 Electronic Monitoring, supra note 152, at 3.

159 Id. ("Managers who allow a computer to become an employee's supervisor are taking an

employee's control over their work away. Employees who lose all control over their work are notlikely to find their job satisfying.").


161 Id.162 Allen, supra note 145, at 193 (citations omitted).

163 Id. at 192; On Your Tracks, supra note 126, at 20.


165 Allen, supra note 145, at 176.

166 On Your Tracks, supra note 126, at 19. See also People v. Oates, 698 P.2d 811, 816

(Colo. 1985) ("Government surveillance necessarily reduces this sense of privacy; many citizens

may choose to curtail their freedom of action rather than risk exposure of their activities to

government scrutiny.").

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and beliefs, she has lost her sense of privacy, her freedom of choice, andher dignity." 167 In the end, what is lost in overall employee perform-ance and satisfaction may outweigh any potential benefits GPS technol-ogy has to offer.

Thus, in the specific context of process servers, while GPS technol-ogy might help determine more efficient routes and increase the amountof process that could be served throughout the workday, the downsideof this type of monitoring technology on employees (and people gener-ally) should not be overlooked or underestimated. "[A] Ithough there aremany positive and legitimate uses for GPS equipment, employees mustbe aware of the possible invasions of privacy that come with thetechnology.

168

IV. THE RECENT IMPACT OF GPS TECHNOLOGY

IN EMPLOYMENT SETTINGS

As previously established, all parties involved in litigation have le-gitimate interests in having service of process properly and effectivelycarried out, and can face a multitude of negative consequences fromimproper service of process.1 69 Tracking technology may be one easyand efficient method of solving these problems; however, this methodmust be carefully weighed against the possibility that it may compro-mise our privacy interests or adversely affect our society's ethical values.

There are two job settings, separate from law enforcement, inwhich the implementation of GPS technology has led to, or been a sig-nificant aspect of, subsequent litigation. In the first, New York City cabdrivers raised privacy concerns regarding the use of GPS technology intheir taxicabs, as mandated by the regulating agency. In the second, anemployee of the Department of Education in New York took issue withhis employer's use of GPS data for disciplinary purposes.

A. New York City Taxicabs

The New York City Taxi and Limousine Commission (TLC)amended the New York City Rules in 2004170 to require taxicab medal-lion owners in New York City to install new technology in their cabs,

167 On Your Tracks, supra note 126, at 19.168 Id. at 7.169 See supra text accompanying notes 59-80.170 Buliga v. New York City Taxi Limousine Comm'n, No. 07 Civ. 6507, 2007 WL

4547738, at *1 (S.D.N.Y. Dec. 21, 2007).

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called the Taxicab Technology System (TTS), that would, among other"customer service enhancements,"1 71 allow for electronic submission ofthe drivers' travel routes. 172 The Chairman of the Commission,Michael Daus, stated in a 2004 hearing that the new technology would"change an antiquated, difficult process . . . of drivers filling out tripsheets manually, to one where information about vehicle location, tripduration and frequency, as well as fare amount could be automaticallycollected." 173 The technology also enables customers to pay by credit ordebit card, and includes monitors to provide customers with informa-tion like maps, sports scores, and other entertainment. 174 The GPScomponent was deemed necessary in order to track lost property, makesure drivers were not taking roundabout routes, and improve efficiencyby replacing the time-consuming manual recordation of trip informa-tion by drivers. 175

Despite these benefits, taxicab drivers feared that the technologywould be primarily used for surveillance, 176 and would impinge upontheir Fourth Amendment right to privacy. 177 They also objected to thecost burdens of the new technology system. Under the New York CityRules, 78 medallion owners were required to install technology systems

171 See infra text accompanying notes 173-74, 195-97.172 See NEw YORK, N.Y., R.C.N.Y. tit. 35, ch. 3, § 3-06(b) (N.Y. Leg. Publishing Co. 2008).

Each taxicab shall be capable of transmitting data to the Commission or its designatedrepository at pre-determined intervals established by the Chairperson.... The data tobe transmitted shall include the taxicab license number; the taxicab driver's licensenumber; the location of trip initiation; the time of trip initiation; the number of

passengers; the location of trip termination; the time of trip termination; the metered

fare for the trip; and the distance of the trip.Id. See also Alexandre v. New York City Taxi and Limousine Comm'n, No. 07 Civ. 8175, 2007WL 2826952, at *3 (S.D.N.Y. Sept. 28, 2007).

173 Alexandre, 2007 WL 2826952, at *3 (quoting Declaration of Andrew Salkin, First DeputyCommissioner of the New York City Taxi and Limousine Commission (September 23, 2007)[hereinafter Salkin]).

174 Ray Rivera, High-Tech Gadgets in Taxis Will Cut Profits, Cabbies Say, N.Y. TIMES, Jan. 5,2007, at 4, available at 2007 WLNR 188213.

175 Alexandre, 2007 WL 2826952, at *3.176 Id. at *4.

177 Id. at * 1. See also Glenn Collins, As Strike Looms, Mayor Vows to Install Taxi Devices, N.Y.

TIMES, Sept. 4, 2007, at 2, available at 2007 WVLNR 17221823.178 See generally NEW YoRK, N.Y., R.C.N.Y. tit. 35, ch. 1, §§ 1-11 (N.Y. Leg. Publishing

Co. 2008); NEW YoRK, N.Y., R.C.N.Y. tit. 35, ch. 3, § 3-03, 3-06, 3-07 (N.Y. Leg. Publish-ing Co. 2008).

The "taxicab technology system" is hardware and software that provides the following

four core services (collectively "four core services"): (i) credit, debit and prepaid card

payment required by section 3-03(e)(7) of this chapter, (ii) text messaging required by

2009] PRIVACY AND TRACKING TECHNOLOGY 235

in their taxicabs capable of the "four core services,"1 79 and sign three-year contracts with service providers. 8° Installation costs and servicecharges have allegedly been passed on through higher lease terms todrivers who rent taxicabs.' 81 These costs amount to a heavy financialburden, made worse by credit and debit card transaction fees borne bydrivers. 182

For these reasons, the New York Taxi Workers Alliance (TWA) ledtwo strikes' 8 3 and two cases were also brought before the Southern Dis-trict of New York in 2007 raising these privacy and financial con-cerns. 184 In Alexandre v. New York City Taxi & Limousine Commission, agroup of taxicab drivers and the TWA filed a class action lawsuit chal-lenging the TLC's rules requiring the installation of the TTS technologyin their taxicabs.' 85 Plaintiffs alleged that because the TTS technologywas capable of monitoring the taxicabs' movements between fares andwhile drivers are off duty, the technology would inevitably encroachupon the drivers' Fourth Amendment rights.' 86 The overarching con-cern was the ability of the TLC to "search deeply into the private lives of

section 3-03(e)(8) of this chapter, (iii) trip data collection and transmission requiredby section 3-06 of this chapter, and (iv) data transmission with the passenger informa-tion monitor required by section 3-07 of this chapter.

Id.179 NEW YoRK, N.Y., R.C.N.Y. tit. 35, ch. 3, § 3-03(e)(6) (N.Y. Leg. Publishing Co. 2008).

180 See NEW YORK, N.Y., R.C.N.Y. tit. 35, ch. 3, § 3-03(e)(6) (N.Y. Leg. Publishing Co.

2008) ("A 'taxicab technology service provider' is a vendor who has contracted with the Com-mission to install and maintain the taxicab technology system in taxicabs.").

181 See Alexandre, 2007 WL 2826952, at *5.

182 See id. at *3 ("The TLC has estimated that the cost of TTS installation-to be borne by

medallion owners-would be between '$10 and $4,115' plus a monthly service charge of between'$43 and $200."'); Rivera, supra note 174 at 4 (discussing credit card fees charged to cab own-ers); see also Melissa Plaut, An Unwanted Passenger, N.Y. TIMES, Sept. 2, 2007, at 11, available at2007 WLNR 17157109 ("The bottom line is, once we've installed the G.P.S. device, paid for itsmaintenance, ponied up for repairs and shelled out the transaction fees, what most cabbies willbe left with is, in effect, a pay cut.").

183 The first strike lasted two days, while the second lasted only twenty-four hours. Fernanda

Santos, Cabbies Plan 2nd Strike to Protest New Devices, N.Y. TIMES, Oct. 22, 2007, at 3, availa-ble at 2007 WLNR 20687773.

184 Buliga v. New York City Taxi Limousine Comm'n, No. 07 Civ. 6507, 2007 WL 4547738

(S.D.N.Y. Dec. 21, 2007); Alexandre, 2007 WL 2826952.185 Alexandre, 2007 WL 2826952, at "1.

186 Id. at "1, *9 (noting plaintiffs' argument that "their fundamental right to privacy guaran-

teed by the Fourth Amendment . . . is being violated by the GPS facet of the TTS program,which will enable drivers to be tracked at all times, whether on duty or off, twenty four hours aday, seven days a week") (internal quotations omitted).


drivers,"'187 because the technology would provide such information as"the location of taxi vehicles in between fares, as well as when the drivers[were] off duty."' 188

Florica Buliga, a taxicab driver representing himself pro se in Buligav. New York City Taxi & Limousine Commission,189 raised an additionalconcern for financial privacy. The TTS equipment records fare and tipinformation when customers choose to use a credit or debit card as theirmethod of payment, and plaintiff asserted that drivers have a right toprivacy in the amount of tips they collect.1 90 In both cases, the courtfound that the plaintiffs' concerns were insubstantial in comparison tothe interests of the TLC and the general public.' 91

In response to privacy concerns raised in Alexandre,' 92 the TLCstated that the new regulations do not permit the TLC to access infor-mation about a driver's travel in his cab while off duty, nor do thecontracts with the technology providers allow the vendors to disclosethis information. 193 The court deemed this sufficient protection fordrivers.194 The TLC also noted that the customer service enhancementsserve the public interest by benefiting all parties involved. 195 For exam-ple, the credit and debit payment capabilities appeal to those customerswithout cash on hand, while drivers benefit from more business andhigher fares. 196 The technology improves communication, which bene-fits passengers by quickly informing drivers of traffic information so thatthey may shorten rides and prevent unnecessary delays. 197 It may also

187 Id. at *2.

188 Id. at *1.189 Buliga, 2007 WL 4547738, at -1.190 Id.

191 Id. at *2; Alexandre, 2007 WL 2826952, at *10. The Alexandre court denied the plain-tiffs' request for a preliminary injunction because it determined that the claims were not likely tosucceed on the merits. Alexandre, 2007 WL 2826952, at *6. The Buliga court similarly grantedthe TLC's motion to dismiss. Buliga, 2007 WL 4547738, at *1.

192 Alexandre, 2007 WL 2826952, at *1-2.

193 Id. at *2, *9.

194 Id at *9 ("[P]ractical steps have been taken by the TLC to help maintain the confidential-ity of electronic trip data, including inserting a provision in TLC contracts with TTS vendorsprohibiting vendors from 'giving to any person or entity, which influences the City, the [TLC],or their employees, information about the location of a taxicab while it is off-duy.'") (quotingSalkin, supra note 173).195 Id. at *2.

196 Id. at *3.

197 Id.

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help locate lost property left in a taxicab, 198 as well as collect informa-tion beneficial to the TLC, the Department of Transportation (DOT),and government officials by mapping out route information and de-mand for taxi service in different areas of the city.' 99 The Buliga courtdescribed the taxi drivers' privacy interests as "minimal at best," anddetermined that they did not outweigh the many benefits offered by theGPS technology.200

The success of a claim under the Fourth Amendment first dependsupon a showing of a personal expectation of privacy in the given situa-tion that society deems reasonable,2 ' and the Alexandre court essentiallyfound that no such "reasonable" expectation existed in this situation.Quoting the language of the Supreme Court in United States v.Knotts,2 °2 the Alexandre court explained, "Itlhere is a diminished expec-tation of privacy in a vehicle because of its availability to public scru-tiny ...A person traveling in an automobile on public thoroughfareshas no reasonable expectation of privacy in his movements from oneplace to another."20 3 Thus, drivers of taxicabs were therefore deemed tohave no legitimate expectation of privacy in the location or movementof their cars, whether on or off duty.20 4

In both cases, the Buliga and Alexandre courts noted that even ifthe drivers did maintain a reasonable expectation of privacy while driv-ing, this expectation could be outweighed by the legitimate and substan-tial government interest in collecting trip information.20 5 Notably, thecourt in Buliga recognized that taxi drivers have some expectation ofprivacy regarding the amount of money they receive in tips. 20 6 How-ever, the court rejected this concern for financial privacy because it iswork-related and falls within a heavily regulated industry,20 7 and there-

198 Id.

199 Id.200 Buliga v. New York City Taxi Limousine Comm'n, No. 07 Civ. 6507, 2007 WL

4547738, at *4 (S.D.N.Y. Dec. 21, 2007).201 See supra text accompanying notes 82-87 for a discussion of Katz v. United States, 389

U.S. 347 (1967), which created this standard.202 United States v. Knotts, 460 U.S. 276 (1983).203 Alexandre, 2007 WL 2826952, at *9 (quoting Knotts, 460 U.S. at 281 (1983)).204 Buliga, 2007 WL 4547738, at *2; Alexandre, 2007 WL 2826952 at *9.205 Buliga, 2007 WL 4547738 at *2; Alexandre, 2007 WL 2826952 at *10.206 Tip information on fares paid for by credit or debit card is collected by the TTS technol-

ogy and conveyed to the TLC. Buliga, 2007 WL 4547738, at *1.207 See id at *2 ("Adults who choose to participate in a heavily regulated industry, such as the

taxicab industry, have a diminished expectation of privacy, particularly in information related to

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238 CARDOZO PUB. LAW, POLICY & ETHICS j

fore, drivers must expect some intrusion upon their privacy. In bothopinions, the court placed a great deal of emphasis on the need for theTLC to appropriately regulate the taxi industry and the greater publicgood served by use of the TTS technology, 20 9 which beat out individualprivacy interests.

B. Department of Education

Another example of the challenged use of GPS in the workplaceoccurred when a Supervisor of Carpenters in New York was suspected ofsubmitting false time records and his employer, the Department of Edu-cation, brought charges against him.210 The case was heard at a discipli-nary proceeding in the New York City Office of Administrative Trialsand Hearings. Respondent John Halpin had submitted records to hisemployer regarding his work schedule which contained several inconsis-tencies. His time card punches each day appeared to be made from thesame machine, even though his itinerary and movement sheet placedhim at different locations at the end of each day.21 1 Suspicions aboutHalpin's whereabouts during work hours were confirmed by the datacollected from the GPS technology installed in his Department-issuedcell phone. 212 The data confirmed that Halpin was in fact heading inthe direction of his home by 1:30 or 2:00 p.m. on most days, while hisworkday did not end until 3:30 p.m. 213

The Department's stated purpose for issuing the GPS-enabled cellphones to employees was to efficiently locate and reassign personnel asneeded.2 4 Halpin therefore argued that the government's use of theGPS technology for surveillance and disciplinary purposes in this casewas unfair. Halpin claimed that the Department failed to disclose thatthe data captured by the GPS technology would be used for disciplinarypurposes, and therefore such use constituted a violation of employee

the goals of the industry regulation."). For New York City Taxi & Limousine Commission

Rules & Regulations, see generally N.Y. Comp. Codes R. & Regs. tit. 35 (1991).208 Buliga, 2007 WL 4547738, at *2.

209 Alexandre, 2007 WL 2826952, at *10.

210 Dep't of Educ. v. Halpin, OATH Index No. 818/07, 1 (Aug. 9, 2007), available at http://

www.citylaw.org/OATH/07_Cases/07-818.pdf.211 Id. at 2-3.

212 Id. at 3.

213 Id. at 2-3.

214 Id. at 2.

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privacy.215 While it was unclear to the court whether use of the GPStechnology for surveillance and disciplinary purposes was ever ade-quately disclosed to supervisors when the phones were issued,216 thecourt ruled that "tt]o the extent that use of this [GPS] data does notviolate respondent's privacy interests ...respondent cannot object tothe method by which the Department proves his misconduct. The De-partment is not expected to notify its employees of all the methods itmay possibly use to uncover their misconduct. 217

The Department claimed that off-hours movements would not betracked, yet Halpin noted, and the evidence that the Department sub-mitted implicating the respondent clearly indicates, that the technologyin fact captured employee movements from 7:00 a.m. until 6:00 p.m.,which includes several off-duty hours.218 It also tracked movementsduring holidays and sick days when Halpin did not come into work.219

The technology was able to determine latitudinal and longitudinal coor-dinates and even the speed at which the respondent was moving whiletraveling in his car.220 The Department had unrestricted knowledge ofits employees' whereabouts and movements, even during certain off-duty hours and days, as well as information not related to job perform-ance or the stated purpose of the GPS surveillance.

Despite this evidence and Halpin's argument, the judge deter-mined that the government's use of the GPS technology for surveillancedid not violate employee privacy. 221 The judge further stated that therespondent had no legitimate expectation of privacy deemed reasonableby society, and therefore there was no privacy interest capable of beingviolated.222 Launching into a discussion of O'Connor v. Ortega, whichessentially stated that an employee's reasonable expectation of privacyagainst work-related searches by his employer is slight, 3 the judge

215 Id. at 21. In support of this argument, Halpin introduced as evidence the receipt he

signed when he was issued the phone, which did not contain a disclosure of this information.

Additionally, another carpenter testified that he was specifically told that the "GPS technology

would never be used for tracking employees for purposes of discipline." Id. at 21-22.216 Id. at 2.

217 Id. at 22.

218 Id.

219 Id. at 10, 22.

220 Id. at 11.

221 Id. at 22.

222 Id.223 See generally O'Connor v. Ortega, 480 U.S. 709 (1987). See also supra text accompanying

notes 120-25 for a discussion of this case.

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stated that Halpin had no reasonable expectation of privacy in his move-ments during work hours, particularly once assigned a Department-is-sued cell phone with GPS.224 Given that the Department's "undisputedintent" in giving supervisors GPS-enabled cell phones was to locate su-pervisors in the field, the judge stated that "[a]lthough he may not haveanticipated that the data would be used for disciplinary purposes, re-spondent cannot claim to be surprised that his employer was trackinghis movements with the GPS mechanism." 225 Ultimately, the Depart-ment of Education successfully proved its case and the administrativelaw judge recommended Mr. Halpin for termination.226

V. GPS TECHNOLOGY SHOULD NOT BE USED TO

TRACK PROCESS SERVERS

People seem to have an inherent curiosity and desire to know allthat they can about other people,227 yet at the same time expect othersto respect personal boundaries and not invade a base level of individualprivacy. The case law addressing surveillance technology and corre-sponding privacy concerns has expanded the scope of legally permissibletechnological observation while limiting the extent of individual privacyexpectations that courts will recognize as "reasonable." In this way, thestandards that have evolved from our case law do not adequately coin-cide with societal expectations of acceptable levels of privacy.

Therefore, while societal expectations would seemingly prohibitthe use of GPS technology to monitor process servers, these legal stan-dards provide little legal basis for limiting or blocking its use. This isproblematic given that the Fourth Amendment is meant to protect citi-zens in situations in which they maintain an expectation of privacy that"society is prepared to recognize as 'reasonable.' ",228 Certainly, then,courts have gone too far by allowing several instances of personal intru-sion that undoubtedly conflict with societal attitudes about the right toprivacy.

An appropriate test for determining whether surveillance technol-ogy like GPS should be permissible in a given context should better

224 Dept of Educ., OATH Index No. 818/07, at 22.225 Id.

226 Id. at 30.227 Allen, supra note 145, at 173.228 Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). See also supra

text accompanying notes 82-87 for a discussion of this case.

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reflect societal expectations. It should therefore state that (1) the use ofsurveillance or "sense-enhancing" technology for observational purposesis permissible only if the observation could reasonably be accomplishedby purely visual observation; if the use of this technology would makepossible observation that would exceed this reasonable level, it shouldconstitute a search in violation of the Fourth Amendment. The testshould also state that (2) the context of the observation (whether in apublic space, private space, or employment setting) is irrelevant.Whether or not the observation occurs in public, society maintains areasonable expectation that if they are to be observed, it will be by casualobservation, not intense surveillance, and certainly not through ad-vanced technological means such as GPS. Similarly, while employees'reasonable privacy expectations may be lowered while at work,22 9 a fun-damental level of privacy is a realistic societal expectation in the employ-ment context as well and should be recognized as legitimate. Under thistest, monitoring the movements of process servers with GPS technologyis impermissible.

The discussion that follows reviews particular aspects of case lawthat not only conflict with societal expectations generally, but also withsocietal expectations applied to the potential application of GPS tech-nology to monitor process servers. The application of this technologyalso raises other concerns at a societal level that should be given ade-quate consideration in determining whether such technology would beappropriate in the process service industry.

A. Society Maintains a Reasonable Expectation ofPrivacy in the Workplace

O'Connor v. Ortega made clear that in the employment setting,employees enjoy little to no reasonable expectation of privacy.2 30 SinceGPS monitoring of process servers would take place in an employmentsetting, process servers have no real legal basis to object to this surveil-lance because of O'Connor's holding. Yet it would seem that society as a

229 See generally O'Connor v. Ortega, 480 U.S. 709 (1987). See also supra text accompanying

notes 120-125 for a discussion of this case.230 O'Connor, 480 U.S. at 717. See also On Your Tracks, supra note 126, at 22 ("Courts have

traditionally found a low expectation of privacy regarding workplace monitoring. They com-monly require that the invasion of privacy is unreasonable, that it implicate highly personalinformation about the individual . . . and in the traditional workplace setting this can be adifficult barrier to cross."); see supra text accompanying notes 120-25 for a discussion ofO'Connor.

20091


whole would deem reasonable a greater expectation of privacy at workthan that which the Court was willing to recognize in O'Connor. Aspreviously discussed, many employees feel that workplace surveillanceviolates their privacy rights,2 3 ' and they feel that this type of monitoringgives an employer access to a great deal of personal information and anoverall picture of one's personal life and habits. 23 2

In a report by the National Workrights Institute, the organizationstates, "[i] ndividuals have heightened expectations of privacy outside theconfines of a traditional workplace. Such expectations can include pub-lic as well as private locations where technology such as GPS supplantsthe need for direct observation. 12 33 This evidence is clearly applicable tothe use of GPS to track the movements of process servers who operateoutside the confines of a traditional office space and on public streets,and therefore demonstrates a reasonable societal expectation of privacyin this setting that should receive the protection of the Fourth Amend-ment. A clear example of a reasonable expectation of privacy in thissetting was demonstrated by the concerns raised by the New York Citytaxicab drivers in response to the installation of GPS technology in theirtaxicabs, which was perceived as a violation of privacy. 4 Additionally,the extensive negative impact that such surveillance can have on employ-ees' psychological health, personal satisfaction, morale, employment re-lationships, and job performance,235 should generally dissuade anyoneconsidering the implementation of such surveillance in the process ser-vice industry.

i. The Danger of Implementing GPS Technology in thisGovernment-regulated Setting

Employers have already developed comprehensive monitoring sys-tems that seem reasonably justified in light of the important productiv-ity standards and other business concerns that employers have atstake.2 36 For example, the TLC and DOT had legitimate interests inmapping out faster travel routes and providing a more efficient systemto record trip information, among other concerns, when they required



233 On Your Tracks, supra note 126, at 22-23.234 See supra text accompanying notes184-88.



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the installation of TTS equipment in New York City taxicabs.237 Em-ployees may be unaware of the systematic changes in the workplace oc-curring throughout our society in small, and perhaps seeminglyinsignificant, ways.238 To extend the application of GPS tracking tech-nology even further into the process service industry, another field ofwork over which the government flexes its control, is a step furtherdown the slippery slope of workplace surveillance.

Since employee monitoring is on the rise,239 it is plausible that allemployees across all industries will soon face the onslaught of privacyinvasions that will be too pervasive to fight. In fact, that day may al-ready be here. The gap in power between employer and employee inmaking relevant managerial decisions creates a tough battle for any em-ployee trying to maintain a sense of privacy in the face of an employer'smonitoring policy.24° As one employee is quoted

as saying, "I've had a couple of coworkers who ... were rebelliousagainst it, but they can't really do much about it. They're workingunder company policy and once you're under company rules and regu-lations, you lose all your rights. ' 24 1 Yet some employees may not seemto mind the intrusion.242 However, a lack of resistance to surveillance atwork may simply indicate acquiescence to the state of affairs, or a senseof inevitability of the loss of individual privacy rights to employer con-trol that seems too great to overcome.243 Additionally, any sort of at-tempt to change the status quo could backfire and lead to undesirablerepercussions, such as loss of one's job.244

These issues are magnified when the government takes part in em-ployee surveillance, as in the context of process servers who are oftenlicensed by government agencies. In New York City, it is the licensingagency alone-the DCA-that has the authority to amend the NewYork City Rules & Regulations to require that all licensed process serversbe subject to GPS monitoring.215 While the process service agency

237 See supra text accompanying notes 171-74, 196-98.238 See Allen, supra note 145, at 172.239 See id. at 173.240 Id. at 190; On Your Tracks, supra note 126, at 41.241 Allen, supra note 145, at 190 (internal quotations omitted).242 On Your Tracks, supra note 126, at 44.

243 Allen, supra note 145, at 191.244 Id. ("An insurance company manager said, 'Employees usually do not come forward and

complain about or question the company's rule. If they did, they could lose their job."').245 N.Y. COMP. CODES R. & REGS. tit. 20 § 20-104 (1991).

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244 CARDOZO PUB. LAW, POLICY & ETHICS j [

through which the process server receives assignments would technicallybe the employer,246 it would effectively be this government agency im-plementing such monitoring requirements and keeping tabs on themovements of process servers.

Government involvement in surveillance can magnify privacy con-cerns and be more problematic because people tend to be even moreresistant to government control, particularly if they feel it is excessivelyintrusive. Clearly, the New York City taxicab drivers were unhappyabout the ability that TTS technology would give the TLC to monitortaxicab movements and exert greater control over drivers.24 7 Perhapsthis resistance comes from the fear of an Orwellian reality-fear thatstems from the knowledge that if government is given too much powerto control where we go and what we do, there is potential for abuse thatwould leave us defenseless. 248 Though this may seem like an imagina-tive and paranoid prediction, government surveillance can lead to "aprevailing climate of suspicion, an increase in adversarial relationshipsbetween citizens and government, and an increased tendency to opt outof the official level of society. ' 249

There is a greater likelihood of abusive surveillance in monitoringprocess servers because the surveillance would probably not be limitedin any meaningful way. Any action on the part of the licensing agencywould likely create a blanket requirement of all process servers, withoutindividualized application.25 ° Process servers might be required topurchase cell phones with GPS capabilities under a service contract witha pre-selected (by the licensing agency) service provider, much like theTTS technology installed by New York City taxicab drivers.251 All pro-cess servers would have to submit to surveillance, even if their employersdid not suspect any misconduct. Even if tracking were limited to speci-

246 See REPORT, supra note 22, at 3 ("Most process servers work simultaneously for a number

of different process service agencies which are also required to be licensed.").247 See supra text accompanying note 189.

248 See generally Christopher Slobogin, Public Privacy: Camera Surveillance of Public Places and

the Right to Anonymity, 72 Miss. L.J. 213, 250-51 (2002) [hereinafter Public Privacy] (describingOrwell's fictional society).

249 Id. at 246.

250 Several New York City Rules and Regulations enforce blanket requirements. See, e.g.,

N.Y. COMp. CODES R. & REGS. tit. 20 § 20-403 (1991) (requiring all process servers to belicensed); NEW YORK, N.Y., R.C.N.Y. tit. 35, ch. 3, § 3-06 (N.Y. Leg. Publishing Co. 2008)(requiring all New York City taxi cabs to be equipped with TTS technology).


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PRIVACYAND TRACKJNG TECHNOLOGY

fLied hours, there would be potential for abusive surveillance practices252

(recall evidence that the Department of Education recorded GPS loca-

tion data during non-work hours), 2 " and the fact remains that GPS-enabled cell phones still transmit a signal even if they are turned off.254

Process servers would have no guarantee that their private activitieswould be free from the watchful eye of the government.

ii. GPS Surveillance is Unlikely to Prevent Abuse of Process

Societal expectations aside, the government's implementation of

GPS monitoring requirements in the process service industry is trouble-some because it is unclear how the technology could be used to effec-tively prevent abuse of process and ensure that process servers go wherethey are supposed to go. Use of monitoring technology might detersuch misconduct to some degree just by the fact that its existence createsa watchful presence over process servers' movements. But this alone is apassive application of the technology; without a means of actively weed-ing out inappropriate behavior, it would likely prove ineffective onceprocess servers realize that it is merely a means of intimidation.

While GPS technology has been used successfully in the past in

other contexts,255 these methods would be inapplicable for achieving theDCA's objectives. For example, much of the relevant case law on the

use of GPS or similar technology involves law enforcement officerswhose suspicions about a particular individual brought about the use ofthe technology.256 The DCA's monitoring requirements, however,would not be based on individualized suspicion. Uniform requirementsthat are likely to apply equally to all licensed process servers will nottarget those process servers engaging in particularly egregious abuses of

252 See, e.g. Waxer, supra note 141, at 73 (discussing abusive practices of employers using

GPS, such as "[i]ntroducing GPS without notifying employees, monitoring workers during off

hours and using GPS data to set unreasonable quotas"); On Your Tracks, supra note 126, at 13

(noting the experiences of employees at a television station in Washington with managers phon-

ing them while out on the road to tell them to slow down or to question them about stopping at

certain locations).253 See supra text accompanying note 218-20.254 See On Your Tracks, supra note 126, at 16 ("As for when the phone itself is turned off, it

appears that if the battery is inserted, the phone, turned off or not, transmits its identifier signal

to the wireless network every few seconds so that the network knows what cell the phone is in.").255 See supra text accompanying notes 137-42; supra text accompanying notes 88-92 and 99-

103 for a discussion of the application of similar technology in law enforcement.256 See, e.g., United States v. Karo, 468 U.S. 705 (1984); United States v. Knotts, 460 U.S.

276 (1983).

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246 CARD OZO PUB. LAW, POLICY 6- ETHICS J [

process, yet these individuals cause the most concern. Additionally,while GPS technology can be used to ensure that certain individuals donot go to designated places,25r because the DCA's goal would be to en-sure that process servers do go where they are supposed to, this GPS usewould be inapplicable. Furthermore, the use of GPS in this settingwould be ineffective because there are no set boundaries over which pro-cess servers may not cross since process servers need to serve process allacross New York City and its five boroughs.

Conceivably, a record of GPS data would be helpful after abuse ofprocess occurs, assuming that defendants who fall victim to it complainto the appropriate authorities. At that point, the data could provideclear evidence of misconduct and a basis for punishment, analogous tothe discovery by the Department of Education that John Halpin was notworking the hours that he reported.25 But it is hard to conceive of away in which this data could prevent sewer service, or effectively alertappropriate authorities that sewer service has occurred before its victimsfeel the effects. After all, it is unrealistic to imagine that anyone wouldreview GPS data for each process server on a consistent basis, whilesimultaneously looking for inconsistencies in the process server's recordsof allegedly completed service. Such a person would also have the diffi-cult task of determining-with no objective guidelines-whether theprocess server's chosen routes were selected and performed in a mannerthat indicates an intention to actually achieve service. Thus, it is hard tosee how GPS technology could actually be used to accomplish theDCA's goals.

B. Society Maintains a Reasonable Expectation ofPrivacy in Public Spaces

Another, perhaps greater, roadblock to establishing a legal basis tolimiting GPS monitoring of process servers is the fact that much of whatprocess servers do on the job is performed in public spaces. As previ-ously discussed, courts have consistently denied any reasonable expecta-tion of privacy in public because that which an individual does in public

257 For example, sex offenders and batterers subject to civil protective orders are subject to

GPS monitoring to ensure that they do not enter prohibited areas where their previous victimsmay be present. For a discussion of the use of GPS technology for this purpose, see generally

Zoila Hinson, GPS Monitoring and Constitutional Rights, 43 HARv. C.R.-C.L. L. REv. 285(2008); Satine, supra note 11.


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is in "plain view" of anyone who wishes to observe it.25 9 But this "plainview" standard similarly does not align with the fact that society gener-ally maintains some expectation of privacy while in public.

Admittedly, a reasonable person cannot expect complete secrecy oftheir actions and words in a public arena, but there is some thresholdboundary that we expect other people to respect when we are in theirpresence. One author calls this "the right to public anonymity," whichhe describes as "something very close" to the right to privacy.26 ° Ano-nymity means the sense of privacy that "occurs when the individual is inpublic places or performing public acts but still seeks, and finds, free-dom from identification and surveillance. ' 26 Essentially, we have a cer-tain expectation about the level of observation that is acceptable inpublic.2 62

For example, staring at another person, though perhaps a mild in-trusion, is at least disconcerting and generally considered rude.263 Stalk-ing someone is certainly perceived as an even greater intrusion and canresult in criminal charges. In both instances, the person who is on thereceiving end of the stare or who is being followed is placing himself inthe public eye, yet societal standards afford a base level of privacy not tobe crossed. Notably, GPS surveillance achieves similar objectives ofboth staring at and stalking another person-"seeing" where that persongoes and "following" their every move-but it does so at a comfortabledistance that does not openly violate our sense of decency. Yet even ifwe are being watched from afar, knowledge that someone is watchingmay have psychological and emotional effects, and may inhibit our free-dom to go about our lives as we please.264

The "plain view" doctrine runs afoul of actual societal privacy ex-pectations because it holds that no level of privacy can be maintained, orshould be expected, in public spaces. Yet society generally does main-tain some expectation of a basic level of privacy in public that GPStechnology would undoubtedly violate. For this reason, the context oftechnological surveillance-whether in public or private spaces-should

259 Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). See also supra

text accompanying notes 82-87 for a discussion of this case.260 Public Privacy, supra note 248, at 238.261 Id. at 239 (internal quotations omitted) (quoting ALAN F. WESTIN, PRIVACY AND FREE-

DOM 31 (Bodley Mead 1967)).262 Id.263 Id. at 245.264 Id. at 242-45. See also supra text accompanying notes 143-66.

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be of little relevance in determining the propriety of technological sur-veillance in a given context. The public or private setting should serveonly to establish the corresponding degree of privacy reasonably ex-pected in the particular public or private setting.

C. Kyllo s "Readily Available" Standard Does Not Adequately AddressPrivacy Concerns Raised by Technological Surveillance

The rule that developed in United States v. Kyllo has been termedthe "readily available standard,"26 5 and it illogically predicates the rea-sonableness of the use of surveillance technology on whether or not thattechnology is "readily available" for use in society.2 66 Specifically, theCourt held that if the government uses technology that is not in thegeneral public use for surveillance purposes, then this use of technologyviolates the Fourth Amendment.267 If, however, the government usestechnology that is in the general public use for surveillance purposes,this does not violate the Fourth Amendment and is constitutionallypermissible.

Technically, because of the Kyllo standard, there can be no legalobjection to the use of GPS technology to monitor process servers be-cause GPS technology is in the general public use in varying formatsand applications,268 and thus can be considered "readily available." Theproblem with this reasoning, however, is that the legitimate objectionsto the use of GPS technology in the process service industry have littleto do with the GPS technology itself, but rather consist of privacy con-cerns about personal information being made available to others. Theseprivacy concerns are not diminished by the fact that many people mayhave access to GPS technology.26 9

Under this "readily available" standard, widely-used technology,like GPS technology, is permissible for surveillance purposes in any con-text regardless of its intrusiveness or the context of the observation. Ad-ditionally, increasingly invasive technology will become legallypermissible over time because it seems inevitable that as more surveil-lance technology becomes more "readily available" to the public, this

265 See generally Sorenson, supra note 118.

266 Kyllo v. United States, 533 U.S. 27, 40 (2001). See generally Sorenson, supra note 118.

See also supra text accompanying notes 114-19 (discussing Ky/o).267 Kyllo, 533 U.S. at 40.


269 Sorenson, supra note 118, at 199.

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technology will become increasingly invasive271 until little privacy

remains.

Applying the Kyllo standard in this context would thus effectivelyrender the Fourth Amendment meaningless271 because it opens the doorfor much greater intrusions by the government. It essentially gives thegovernment a green light to use whatever technology it can to accom-plish a search no matter where it may take place because eventually alltechnology can become "readily available. '272 This is dangerous becauseit not only leaves individuals with nowhere to retreat to escape techno-logical surveillance (particularly GPS technology), but it also severelyrestrains legitimate privacy expectations.273

D. Society Maintains a Reasonable Expectation of Privacy Against theUse of "Sense-enhancing" Technology

Courts have adopted terms like "sense-enhancing" for GPS andsimilar technology that is claimed to merely augment observation thatcan be accomplished through the human senses alone.274 As such, theuse of this type of technology has been deemed not to violate any rea-sonable expectations of privacy based on the reasoning that whatever canbe observed using this type of technology is equally observable by thenaked eye. The absurdity of this conclusion is apparent in several casespreviously mentioned,275 in which it is highly unlikely that the searchthat took place would have been possible without the "sense-enhancingtechnology" that was used. It is thus hard to characterize the use of agiven technology as enhancing human powers of observation when, in

270 With time, technology generally advances and becomes more available for public use.

Such technological advances will likely make surveillance technology more invasive. See, e.g.,Christopher Slobogin, Peeping Techno-Toms and the Fourth Amendment: Seeing Through Kyllo 'sRules Governing Technological Surveillance, 86 MINN. L. REV. 1393, 1412-13 (2002) [hereinafterPeeping Techno- Toms].

271 See id. at 1413 ("Advanced technology can find its way in to the average home very

quickly . . . the courts will either have to change their stance, manipulate the meaning of thegeneral public use doctrine, or ignore it.").

272 See Sorenson, supra note 118, at 202.

273 Kyllo v. United States, 533 U.S. 27, 47 (2001) (Stevens, J., dissenting) ("(I]t seems likely

that the threat to privacy will grow, rather than recede, as the use of intrusive equipment be-comes more readily available.").

274 See United States v. Knotts, 460 U.S. 276, 282, 285 (1983); see also supra text accompa-

nying notes 88-98 for a discussion of this case.275 See supra text accompanying notes 88-113 for a discussion of these cases.

2009] 249

250 CARDOZO PUB. LAW, POLICY 6- ETHICS J [

reality, the technology is used to replace, or at least far exceed, humancapabilities of observation under the circumstances.

The greatest level of observation that people reasonably expect andaccept is that which would be reasonably possible by human sensesalone. In light of this fact, use of "sense-enhancing" technology toachieve a level of observation that clearly exceeds this level should not beconstitutionally permissible. The fact that technology reveals informa-tion that could conceivably be viewed by the naked eye under the rightcircumstances does not fall within the realm of society's reasonable ex-pectations of our government, or of anyone for that matter.2 76

Some of the cases previously discussed demonstrate this point andmerit brief analysis here. For example, in Knotts,2 77 the officers simplywould not have been able to obtain the information that they did with-out surveillance technology (a beeper). Despite the Court's assertionthat the beeper did not reveal any information that "would not have beenvisible to the naked eye,"2 78 there was in fact nothing visible to the nakedeye because the officers were forced to end their visual surveillance dueto the defendant's suspicion. 279 The beeper in this case clearly served toreplace visual observation, not enhance it.

California v. Ciraolo28 ° presented an even greater stretch of the"sense-enhancing" technology principle by holding that law enforce-ment officers' observation of the defendant's yard from a plane did notimplicate the Fourth Amendment because it was technically "naked eye"observation in public navigable airspace.281 In this case as well, the of-ficers were simply not capable of achieving visual observation of thedefendant's enclosed backyard, and were not able to obtain the informa-tion that they were seeking, without the use of "sense-enhancing" tech-nology (a plane). This case, along with the factually similar case ofFlorida v. Riley,282 provides the clearest sense that the "sense-enhancing"

276 See also Florida v. Riley, 488 U.S. 445, 457 (1989) (Brennan, J., dissenting) (recognizing

the unreasonableness of a standard that allows the expectation of privacy to be defeated "if a

single member of the public could conceivably position herself to see into the area in questionwithout doing anything illegal").

277 United States v. Knotts, 460 U.S. 276 (1983).

278 Id. at 285 (emphasis added).

279 Id. at 278.

280 California v. Ciraolo, 476 U.S. 207 (1986).

281 Id. at 213.

282 Florida v. Riley, 488 U.S. 445 (1989).

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rationale is clearly in conflict with reasonable societal privacyexpectations.

Surely societal standards provide a reasonable expectation of pri-vacy in one's own backyard, particularly after fencing it off from publicview. Nor is there a societal expectation that people regularly go to suchlengths as flying over one's backyard to peer over the fence.283 TheCourt stated that "[a]ny member of the public flying in this airspacewho glanced down could have seen everything that these officers ob-served, '284 as though this were a typical or even feasible activity for pri-vate individuals! The fact that the officers were technically in "publicnavigable airspace ' 285 cannot justify the absurd conclusion that the de-fendant exposed his activity to the public.286 As one author aptlysummed up this reasoning, "the privacy protected by the FourthAmendment is no greater than the privacy one can expect from thepublic at large-and a decidedly curious public at that . . 287 It isunreasonable to expect that even a "decidedly curious public" would goto such lengths as to charter a plane and fly over a neighbor's backyardjust to discover what is occurring there.

From these cases it is apparent that characterization of surveillancetechnology as merely "sense-enhancing" undermines the Fourth Amend-ment's protection of privacy interests that "society is prepared to recog-nize as 'reasonable.' ",288 This is an inappropriate legal standard becauseit makes permissible observation that could not reasonably be accom-plished by visual observation alone and thereby exceeds societal expecta-tions. These concerns are inherently present in the potential applicationof GPS for monitoring the movements of process servers. The technol-

283 See also Peeping Techno-Toms, supra note 270, at 1399 ("[T]he Court assumed that mem-

bers of the public might engage in the type of behavior the police did, and reasoned from thatassumption that the behavior did not offend reasonable expectations of privacy.").

284 Ciraolo, 476 U.S. at 213-14.285 Id. at 213.286 In a factually similar case with a similar outcome, Justice Brennan, writing for the dissent,

stated "I cannot agree that one 'knowingly exposes [an area] to the public' solely because ahelicopter may legally fly above it." Riley, 488 U.S. at 457 (Brennan, J., dissenting). See alsoPeeping Techno-Toms, supra note 270, at 1405-06.

287 Peeping Techno-Toms, supra note 270, at 1395. See also Riley, 488 U.S. at 465 (1989)(Brennan, J., dissenting) (recognizing that flying over someone's backyard in order to observewhat is kept there is extremely rare and should therefore constitute a search). Dow Chem. alsoilluminates this disconnect between the court's reasoning and reasonable societal expectations ofprivacy. See supra text accompanying notes 110-13 for a discussion of this case.

288 Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). See also supra

text accompanying notes 82-87 for a discussion of this case.

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252 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 8:209

ogy would be used not just as a substitute for managerial oversight, butas a replacement for visual observation of employees. This goes beyondour notion of what can reasonably be accomplished through humansense alone because, unlike visual observation, GPS surveillance is con-stant, without interruption, and virtually without error.289 Humans, onthe other hand, are prone to distraction, and it is simply not plausiblethat an individual could follow someone around and record exact timeand location data without making a mistake at any point.290 Therefore,this application of GPS technology in the process service industryshould not be constitutionally permissible.

The court in one Washington State case, State v. Jackson,29t recog-nized these concerns and reached a similar conclusion regarding the useof GPS for tracking purposes. The court found that the use of GPStracking by law enforcement officers to trail a suspect's car without awarrant violated the Fourth Amendment.292 While this case relied heav-ily on state law, and in the end the court did not find for the plaintiff-suspect because the officers did in fact obtain a warrant before thesearch, it is important here for several reasons. For one, it recognizedthat government use of GPS technology is an invasion of privacy be-cause it has a tendency to reveal an abundance of personal informationthat is outside of the government's concern.293 This principle as appliedin the law enforcement context is equally applicable in other govern-ment contexts. 294 The court also asserted that the use of GPS does notmerely enhance, but serves as a substitute for, visual observation.295 Fi-


290 See also State v. Jackson, 150 Wash. 2d 251, 262 (2003) (noting the difference between"the kind of uninterrupted, 24-hour a day surveillance possible through use of a GPS device,

which does not depend upon whether an officer could in fact have maintained visual contact

over the tracking period, and an officer's use of binoculars or a flashlight to augment his or her

senses"); April A. Otterberg, GPS Tracking Technology: the Case for Revisiting Knotts and Shifting

the Supreme Court's Theory of the Public Space Under the Fourth Amendment, 46 B.C. L. Rv.

661, 682 (2005).291 Jackson, 150 Wash. 2d 251 (2003).

292 Id. at 264.293 Id.


295 Jackson, 150 Wash. 2d at 261-62.

[W]hen a GPS device is attached to a vehicle, law enforcement officers do not in fact

follow the vehicle. Thus, unlike binoculars or a flashlight, the GPS device does not

merely augment the officers' senses, but rather provides a technological substitute for

traditional visual tracking. Further, the devices in this case were in place for approxi-

mately two and one-half weeks. It is unlikely that the sheriffs department could have


nally, the court acknowledged the validity of citizens' expectations thatthey will be free from government intrusion upon their privacy, and thattechnological advancement should have no effect on those

296expectations.

CONCLUSION

Despite the current status of the law, a legal basis for blocking, orat least limiting, the use of GPS technology to monitor the movementsof process servers should be recognized. Alternative remedies shouldalso be explored and tested before measures as intrusive as monitoringtechnology are considered. Consumer advocates posed several possibleremedies for this problem to the DCA at the exploratory hearing onJune 13, 2008.297 For example, the DCA could require comprehensiveaudits, under oath, of process servers and process service agencies seek-ing to renew their licenses. 298 Through rulemaking, the agency mightalso set standards of acceptable methods for process servers to verify theaddress of the person to be served.299 If the agency simultaneouslyheightened its record-keeping requirements to require that a processserver record how he has complied with these requirements to determinethe respondent's actual residence, these changes might decrease the over-all level of improper service and resulting default judgments °.30

Some consumer advocates feel that fundamental problems in theprocess service industry may be to blame for rampant abuse of process,

and therefore, a better solution may require industry-wide changes.One solution may be to overhaul the fee structure currently in place inthe process service industry.3°' Current prices for service of process maynot match its overwhelming demand. If these fees do not adequatelycover the cost of serving process, financial concerns may cause process

servers and process service agencies to take on more than they can possi-bly serve in order to make a profit. 30 2 Minimum fees, or an overhaul of

successfully maintained uninterrupted 24-hour surveillance throughout this time by

following Jackson.Id.

296 Id. at 264.

297 See supra text accompanying notes 41-58 for discussion of the hearing.

298 Coffey, supra note 35, at 3; Justice Disserved, supra note 35, at 10.



301 Wilner, supra note 42, at 2.

302 Id.

2009] 253


the industry's fee structure in a way that creates incentives for con-ducting proper service, may assuage these problems.3 1

3 Furthermore,there is simply not much incentive for a plaintiff in a legal proceeding toensure that process is served upon his opponent properly. Becausejudges may often push aside issues of improper service as insignificant, adefault judgment can provide swift and cheap resolution for plaintiffs.3 1

4

Claudia Wilner, on behalf of Neighborhood Economic DevelopmentAdvocacy Project, therefore suggested that the DCA "partner with thecourt system to raise awareness of this problem among judges." 30 5

Punishment for improper service of process, though it would beimposed after abuse of process has occurred, would create a strong disin-centive against falsifying affidavits in the long run. Revoking the licenseof any process server or process service agency found to have violated thelaws requiring proper service of process would induce various industryplayers to reevaluate their practices. 30 6 Criminal prosecutions wouldlikely be even more effective. 3 7

Finally, the implementation of GPS technology into the processservice industry would be a drastic step toward greater infringement ofprivacy expectations and should only be considered as a last resort. Theuse of GPS technology in this context would provide information thatcould not reasonably be obtained by visual observation alone. Thus, toextend the use of surveillance technology into this area would extend thereach of the government further into the realm of personal privacy, be-yond a level of intrusion that society is willing to accept.

303 Id. at 3.304 Id.305 Id.306 Coffey, supra note 35, at 3; Robinson, supra note 23, at 5.307 See also Robinson, supra note 23, at 5; Wilner, supra note 42, at 3.

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