Surveillance Devices Law

Confluent Issues - Tracking Devices

Tracking Devices

Some jurisdictions have laws against the use of tracking devices, but not all. The common thread is that it is unlawful to deploy or make use of a tracking device without the consent of the person being tracked or the person in possession of the object being tracked.

 

In situations where there is no-one in lawful possession of an object – such as if a vehicle has been stolen – then the law should permit the use of a tracking device. However if a vehicle is lent, hired or sold to another person, then the new party has lawful possession and must be informed of the tracking device. If they proceed to use the vehicle without objection, then their consent is implied. On the other hand if they object then it must be removed or switched off, or its data must cease to be collected.

 

In different jurisdictions the law is different with respect to it covering other devices capable of giving a geographic location. In most applicable jurisdictions all devices having that capability are included. In Victoria, only devices having it as a primary function are included. Another common device that is – or may be – caught by the legislation is a mobile telephone. (Victorian readers need to examine further discussion on this in relation to the Victorian legislation).

Some mobile telephones have software available which allows geographic tracking. Additionally the approximate location of a mobile telephone is essential to the network which must be able to determine which network cell the device is to communicate through, and which it will move to while traveling. Without this information the telephone’s primary functions would be unavailable and so there is no mobile telephone incapable of doing this. This makes all mobile telephones tracking devices, save for the fact that it is normally only the network equipment using this information, and that the intended purpose of the legislation is very different to this.

 

It is an interesting question whether this prohibition which effectively catches giving, selling or lending a mobile telephone due to its ability to be tracked, would be effective in prohibiting mobile telephone networks from tracking a phone user’s position. However, the fact that this data is not directly accessible to any person who provided the device is likely to distinguish network activity from surveillance activity. The law appears to require that any person receiving a mobile telephone from anyone else be told of its tracking capabilities in order to obtain their consent, implied or express. This is an advisable course of action in relevant jurisdictions.