By Stephen N. RobertsÂ
Modern technology means we can track our children, but do we have the right to know where they are, and do they have the right to keep their location from us?
Parents may not be able to keep their children in sight at all times, but GPS technology allows them to track their location almost anywhere. Many emerging products focus on children. With either existing GPS technology or that which one day may find its way onto the retail shelves, parents will be able to keep track of teenagers’ use of cars, to know how fast the teens have been driving, or to find them when they do not return from a date by 11 in the evening.
Little children can be given a bracelet to track their movements and help frantic parents when they get lost in the mall. An online retailer advertises a GPS-connected wristwatch that enables a parent to locate a child within a minute by making a simple telephone call. The same technology is available for your puppy’s collar, by the way. Some have even hypothesized the implanting of a chip into little children that could be read by GPS in the event of a kidnapping.
At some point, a teenager just might tell mom and dad to forget the tracking and count on the teen calling home. Every household will grapple with this issue in its own way, but what does the law have to say about a child’s right to privacy from GPS tracking by parents?
Do These Products Raise Legal Issues?
Children do have privacy rights, just like adults, although even the most important constitutional rights of children may be limited because of their minority status. I have found that virtually nothing specific to GPS and children has been legislated, nor has much been written about the subject. In contrast, concerns about children’s privacy have been raised in other areas. There have been outcries in Europe about identity cards that might carry such data as health information about a child. In this country, the Children’s Privacy Protection Act of 1998 limits the ways Web site operators and others may collect and disseminate information pertaining to customers under the age of 13.
But those concerns relate to protecting children from privacy invasions by outsiders, not by their parents. In contrast, GPS chiefly raises issues in the realm of parent-child relationships. One area where the parent-child relationship has collided with privacy concerns is the medical arena, especially with the controversial and politically charged issue of abortion. But neither the legislation nor judicial decisions arising out of such issues provide clear rules for GPS.
Is there any guidance for GPS manufacturers or tech-confident parents? With nothing on record, we have to step back to basics.
Traditionally, a child is considered legally an adult at 21, but each state is free to legislate that limit to be 18 or some other number, and free to set it differently for different things. In this day and age, where children are often more technologically savvy than their parents, such laws may seem an anachronism. Regardless, one must first find out what the local rules are in the state where the child resides.
Contrary to there being any clear rules protecting children from parents using surveillance devices on them, the law generally runs in the other direction. Parents have the legal right to extensive control over their children, and that would include the right to govern where the children go. Children, on the other hand, generally owe a legal duty of obedience to their parents. These rights by and large are not taken away from parents except in instances of parental neglect and abuse; absent that, a parent has great latitude.
Indeed, the courts, from the United States Supreme Court on down, have recognized that children are different than adults when it comes to rights. In the 1979 Bellotti case, the Supreme Court said: “We have recognized three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.” That leads, in the Supreme Court’s view, to a tradition in the United States of enforcing parental authority unless there are exceptional circumstances.
The courts have gone against that tradition and limited parental rights in such areas as abortion. But that is done only after paying great deference to the rights of the parents and determining there is, in the court’s view, a more important issue at stake. One area where parental rights have been limited slightly involves “location,” if not GPS. Generally, the courts allow youth curfew statutes, even against the wishes of parents. But those decisions would not likely stand in the way of parents wanting to track the whereabouts of their children. If anything, they support the notion that children may be limited in their locational rights.
The Bottom Line
While there is little law on the subject, a parent’s desire to track a teenager’s auto usage or keep a young child from getting lost will not likely present strong enough breaches of any right of privacy to cause the courts to interfere. Rather than look to the courts for relief, teens will have to resort to old-fashioned negotiation with mom or dad to be freed of GPS tracking.
Stephen N. Roberts is a partner in the San Francisco office of Nossaman Guthner Knox and Elliott LLP where he has a general business litigation practice. His work focuses on public contracts and related infrastructure and public law issues, including privacy and open records laws. Steve has chaired the ITS America Legal Issues Committee task force on privacy. firstname.lastname@example.org