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Legal Report April 2012


PRIVACY. A state appeals court has ruled that an employer may track an employee’s movements for employment purposes. This differs from the recent U.S. Supreme Court ruling, reported in last month’s “Intelligence” department, that such activities are illegal when used by law enforcement in a criminal context.

The New York appeals court case involved a state employee, Michael Cunningham. In 2008, Cunningham was suspected of taking unauthorized absences from work and of falsifying his time sheet. Though Cunningham had been a director of staff and organizational development for 20 years at the time of the allegations, he had been disciplined frequently for workplace misconduct.

In an attempt to determine whether Cunningham was submitting false time sheets, the state had him followed. However, Cunningham realized he was being followed and changed his habits. So, the state placed a GPS tracking device on Cunningham’s car when it was parked near his office. The device collected location data for 30 days. Based on the GPS evidence, the state determined that Cunningham had given false information about the hours and days he worked and had submitted false vouchers for work-related travel.

After Cunningham was terminated, he filed a lawsuit against the state, alleging that his constitutional rights had been violated. The court ruled that the matter at hand was an employment issue and could, therefore, be considered a civil matter rather than a criminal one. Therefore, Cunningham’s case would hinge on whether the state’s tracking activities constituted an invasion of privacy.

The court ruled that the state’s actions were reasonable and did not invade Cunningham’s privacy.

The court noted that the tracking device was not monitored in real time, but rather a history of Cunningham’s movements was extracted from the device after it had been removed from his car. The court further noted that “Obtaining such information for one month was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his non-work-related ventures during work hours.”

Two of the five judges issued a dissenting opinion in the case. While the judges agreed that the tracking itself was reasonable, they found that the scope of the investigation was too broad. The state’s interest in Cunningham’s movements, the judges noted, was limited to his working hours, yet the GPS device tracked Cunningham 24 hours a day, seven days a week, and even during a week-long family vacation.

The case stands in contrast to the recent U.S. Supreme Court case in which the high Court ruled that police may not use a GPS unit to track a person’s movements for a long period of time without a warrant. Doing so violates a person’s Fourth Amendment right to be free of unreasonable search and seizure, according to the Court. (See “Intelligence” March, for details.)

(Cunningham v. New York State Department of Labor, New York Supreme Court, No. 512036, 2011. U.S. v. Jones, U.S. Supreme Court, No. 10-1259, 2012)


BORDER SECURITY. A bill (H.R. 3801) that would extend an existing border security program has been signed into law (P. L. 112-93) by President Barack Obama.

The new statute requires that the government continue a program under which the Department of Defense and the Department of Homeland Security identify equipment and technology that could also be used by U.S. Customs and Border Protection to combat illicit trafficking across the U.S. borders with Mexico and with Canada. The law specifically notes that information should be shared on how to detect and track ultralight aircraft.

EMPLOYMENT. A bill (H.R. 2501) introduced by Rep. Rosa DeLauro (D-CT) would make it illegal for employers to discriminate against unemployed applicants in hiring decisions. The bill would also prohibit the practice of advertising a job and indicating that unemployed status is a disqualification.

Under H.R. 2501, applicants who felt they had been unlawfully excluded from consideration because of their employment status could file a complaint with the secretary of labor. The government would then be required to investigate the complaint.

The bill has 43 cosponsors and has been referred to the House Education and the Workforce Committee’s Subcommittee on Health, Employment, Labor, and Pensions.

EXPUNGEMENT. A bill (H.R. 2065) introduced by Rep. Charles Rangel (D-NY) would amend the federal criminal code to allow an individual to have a nonviolent criminal conviction expunged in certain circumstances.

To get a felony or misdemeanor expunged, the individual must have committed only the nonviolent crime in question and must have no violent crimes on record. The person must have met all the requirements of the nonviolent crime to be expunged, including prison terms if applicable. The person may not be an abuser of alcohol or drugs, must have obtained a high school diploma or the equivalent, and must complete at least one year of community service. If the individual is subsequently convicted of any state or federal offense, the expunged record will be restored.

The bill would require that the Department of Justice maintain a database of expunged records to be made available to law enforcement under certain circumstances, such as during police investigations and background checks for firearms licenses. Unless the expungement is reversed, the records made available would reveal only the name of the person and the fact that he or she had a criminal offense legally expunged.

H.R. 2065 has nine cosponsors and has been referred to the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security.

CYBERCRIME. A bill (S. 1469) introduced by Sen. Kirsten Gillibrand (D-NY) would require that the federal government provide an annual report to Congress on cybercrime directed at the United States by foreign countries.

The report would include the effect of such activities on the government, individuals, and commerce. The president would be required to establish a plan to address cybercrime from countries deemed active in carrying out cyberattacks against the United States. The government would be required to assess whether the legal, judicial, and law enforcement systems are adequate in nations known to perpetrate cyberattacks. The assessment would include plans to improve assistance to countries whose systems are subpar.

S. 1469 has one cosponsor and has been referred to the Senate Foreign Relations Committee.


New Jersey

TRADE SECRETS. A New Jersey law (formerly A.B. 921) establishes the protection of trade secrets and establishes penalties for violation of the law. The law is a version of the Uniform Trade Secrets Act, adopted by most U.S. states. (New York, North Carolina, Massachusetts, and Texas are the only states that have yet to adopt a similar law.)

The law sets out remedies for violations of trade secrets, ranging from injunctions to protect trade secret information to punitive damages for “willful and malicious” misappropriation of trade secrets. The law notes that legal actions dealing with trade secrets should be open to the public as much as possible, but it tells courts to use reasonable means to preserve the secrecy of alleged trade secrets.


FIRST RESPONDERS. A bill (S.B. 55) in the Kentucky legislature would permit jurisdictions in the state to enter into mutual-aid agreements with other states to share first-responder personnel in case of an emergency. The bill would also extend the same immunity to these first responders as is afforded to those from within Kentucky.

S.B. 55 has been approved by the Kentucky Senate and is currently pending in the Kentucky House of Representatives.

This column should not be construed as legal or legislative advice.