Thursday, September 24, 2009

GPS Evidence-Waiving Possible Location-Based Evidentiary Rights

There is no question that in many jurisdictions, there are open questions as to whether individuals have a right to keep their location information private from tracking by GPS devices. While this is ironic, because no one can argue that public travel that is exposed to the naked eye is private, some courts have, based on state constitutions, found specific rights to be free from GPS tracking, at least by law enforcement. Furthermore, legislatures and the Federal Government may (and should, according to this author) put reasonable limitations on GPS tracking and the admissibility of the evidence it creates, thus creating limited rights not to be tracked.

Where rights exist, the ability to waive those rights exists. Everyone has heard of Miranda rights given to accused individuals by police officers, just before the accused is given an opportunity to waive those rights and talk with the officer. There is no reason any right to be free from locational GPS tracking cannot be waived, if rights as important as the Miranda rights can be waived. Just because a right hasn't been established doesn't mean that someone can't waive that right, should it be recognized. So, what should prudent prosecutors, attorneys, insurers, child support enforcers and employers do? Place GPS evidence collection and introduction waiver clauses in every contract, agreement, employment manual, court order, plea agreement, bond condition that crosses their desk. Just because today you can't think how to use GPS evidence doesn't mean tomorrow you won't. Waivers give the holder the right to collect and use GPS evidence where the rest of the world might not. Make sure to include the right to collect GPS evidence, as without it, you'll have nothing to introduce in court.

How might such waivers work? Take child support collection. Countless single parents have to raise children on their own income alone because payor parents find ways to work in "undocumented" jobs. Child support enforcement attorneys have the difficult task of "proving" the payor had employment with a virtual vacuum of information. How could GPS waivers help?

Employment has certain characteristics. First, it usually takes travel. Two, it takes time, usually upwards of 8 hours a day. Three, it is usually "periodic" and follows a set schedule.

Step 1: At the first possible hearing, the Child Support Enforcement Attorney requests (and probably will get) the GPS evidence collection and use waiver from the court. Of course, since it doesn't guarantee GPS monitoring, payor without visible employment might take efforts to avoid GPS tracking at first , but eventually will fall back into an ordinary routine.

Step 2: After a reasonable amount of time, Child Support Enforcement commences tracking. If it shows no pattern that would show employment, very few resources are lost (simply the time to review the track), and the investigator goes on to the next potential payor. However, if there is a pattern of employment (regular stops at factories, places of business, etc. with extended stays.) the investigator goes on to the next step.

Step 3: The investigator stakes out the potential employment site at the time the payor usually arrives and photographs entry and leaving times. If the GPS track shows regular periods, the investigator need only stay at the site long enough to get photos entering, then return to get photos leaving.

Step 4: The investigator finally consults with other law enforcement about suspicions of undocumented employment. Law enforcement can either confront the employer about the allegations, who will likely cut a deal and give evidence about the payor, or confront the payor with a deal (including back support) to give evidence on the employer.

The beauty of such a system is that, once the waiver is in place, the payor can't ever tell if he is being tracked. After a few cases of GPS child support enforcement hit the papers, payors will either start to sweat about whether there will be a knock on their door, or get valid, documented employment that the payee parent can get enforcement from.

Any periodic activity lends itself to this kind of tracking- workers compensation fraud (track them to the bowling league or baseball field), employee moonlighting, etc.

There is no downside to getting a GPS waiver in a contract as soon as possible.

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