Virginia Bill to Ban Unauthorized GPS Tracking Advances

February 10, 2012

The problem encountered by Del. Joe May’s constituent seemed simple enough to solve.

The citizen had taken his car in for service and was shocked when the mechanic found a GPS device attached to the undercarriage. The car owner learned that the tracking device had been surreptitiously placed there by a private investigator hired by his estranged wife.

He went to the police and the local prosecutor and was told that what happened was not illegal. It should be, the man concluded, so he turned to his legislator. May, R-Loudoun, agreed.

“I honestly believe that’s an invasion of privacy,” said May, whose bill was endorsed 14-1 Wednesday by the House Science and Technology Committee.

The legislation has been in the works for two years as May sought to address the concerns of various individuals and groups, some of them claiming legitimate reasons for electronically tracking someone without permission. In 2010, the bill was deferred for further study and last year it was killed by a Senate committee.

The version headed to the House floor for a vote early next week carves out exemptions for law enforcement officials, parents tracking their kids, any legally authorized representative of an incapacitated adult, owners of fleet vehicles and electronic communications providers like OnStar and cell phone companies.

May acknowledged that a consensus was not easy to reach.

“It’s a pretty simple concept, but it’s such new ground. We don’t have 400 years of precedent and case law,” May said. “Approaching things cautiously is the Virginia way.”

The American Civil Liberties Union raised concerns about May’s bill after the U.S. Supreme Court ruled last month that police cannot use GPS devices to track a person without a warrant. However, May said his bill complies with that ruling because it allows electronic tracking by police only “in accordance with other state or federal law.” The ACLU did not oppose May’s bill in committee.

Not everyone is happy with the legislation, however. Nicole Bocra of Infinity Investigative represented private investigators in many of the negotiations on the legislation over the last two years, and she said she opposes the measure.

“My objections are the fact that the bill is very closed-minded,” she said in a telephone interview. “It doesn’t take into account what private investigators do.”

She said that in addition to the kind of cases that brought the matter to May’s attention, private investigators work on insurance fraud, embezzlement and other white collar crimes.

“We play a vital role in this system,” she said, and unlike police, private investigators cannot obtain a warrant.

She also said that under May’s bill, a domestic abuse victim could not use GPS to keep tabs on her abuser.

Del. Scott Surovell, D-Fairfax, voted against the bill after the committee rejected his proposal to allow a car owner to use GPS to track his own vehicle. Surovell had told the committee at a previous meeting that he and his wife have an au pair who sometimes drives their car, and if they wanted to track where she was going they should be allowed to do so.

Surovell was not swayed by committee members who suggested his scenario would be covered by the “fleet vehicle” exemption since the au pair is an employee.

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