Thursday, December 02, 2010

GPS Tracking/Logging

I asked what I thought would be a simple question but have been unable to get a straight answer either through internet research or a call to the Office of the Canadian Privacy Commission: Is the use of covert GPS Tracking/Logging illegal in Canada?

I should start out by telling you that covert GPS Tracking/Logging is a surveillance technique that involves surreptitiously affixing a GPS-enabled device to a target's vehicle in order to observe where the vehicle goes. If the device is one which broadcasts the target vehicle's location in real-time (usually by cell signal) that is GPS Tracking. If the device is one which records the target vehicle's locations for later retrieval (by retrieving the device) that is GPS Logging. Obviously this can be a much more efficient means of tailing a target than the traditional method of an investigator following the vehicle and with the ever dropping cost of GPS technology it becomes increasingly attractive. But before investing in that equipment or undertaking to use it, I wanted to know if I can do so legally.

In my view, at present it is not illegal in Canada. Others are not so sure.

The definitions under The Personal Information Protection and Electronic Documents Act do not include my (or more correctly, my vehicle's) location as being an item of "personal information". If my location (either current or historical) is not personal information then, logically, it is not protected under the act.

Could it be argued that the legislature simply did not anticipate the emergence of this specific technology in drafting its definitions? Well, Roger Easton of the U.S. Navy Research Laboratory, filed the enabling patent for GPS in 1974. In 1982, Texas Instruments Defense Systems and Electronics Group were the first to enter the commercial GPS market with the TI 4100 NAVSTAR Navigator. Magellan introduced the first consumer hand held GPS unit in 1989. Clearly, knowledge of the availability of GPS technology was well within the reach of the educated consumer more than ten years before PIPEDA became law on April 13th 2000. It would be disingenuous to claim that the legislature was unaware of the technology.

Technological questions aside, it would actually be contrary to traditional Canadian Public Policy to include my vehicle's location as being an item of "personal information" that requires protection. When I drive my black Chrysler Neon along the public highways of any province or territory in Canada I am required by law to affix a device to my car so that it is apparent that it is not just ANY black Chrysler Neon but that it is MY black Chrysler Neon.

That device is called a "Licence Plate".

The Licence Plate specifically and uniquely identifies that motor vehicle as being mine and I am legally required to display it any time that vehicle makes use of any public road anywhere in Canada. Not only am I required to display it but I am required to display it prominently and visibly - I am not permitted to cover it up or otherwise make it unreadable. That has been public policy since 1903 in Ontario (where I live) and shortly thereafter in the rest of Canada. I have no way of knowing who is going to make what use of the information obtained by the display of that device but I am required to display it.

And that makes sense. I am using public roads; I have no expectation of privacy regarding my vehicle's location. Neither do I have an expectation of privacy regarding my vehicle’s rate of speed nor its direction of travel - the roads are public; I expect my use of them to be a public matter as well.

Well then, what about private property? Don't I have an expectation of privacy inside my own home?

Yes I do. I have a complete and almost absolute expectation of privacy about what I do in the privacy of my own home. And I want that privacy protected. Vigorously.

...about what I do in there. Not the fact that I AM there. I can take steps to conceal the fact that I am at home if I choose to do so (leave the lights off, don't answer the phone) but it would be ludicrous to insist that I need the knowledge of the fact that I am present in my home protected from being known by others. If I want to play hide and seek with the bill collector that's my privilege but I can't insist that the bill collector not be allowed to use whatever legal means are available to him to determine if I am home.

Well, that's all GPS Logging/Tracking will tell you about my home - the fact that I am there. Actually, it won't even tell you that - it will tell you that my car is there; I could be out for a walk.

In my view, so long as a GPS Tracking/Logging device is affixed to my vehicle without causing any alteration or damage to my vehicle and is accomplished without trespassing (either in its placement or retrieval) then no law has been broken. I'm not a lawyer (and I don't even play one on TV) but that's my take on the legality of GPS Tracking/Logging. I would welcome any guidance anyone can provide in getting a more definitive answer.