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Abstract

Lisa Magrin, a 46-year-old math teacher from New York, makes the 14-mile trip from her home to her middle school classroom multiple times a week. On an innocuous day in 2018, she hiked with her dog, attended a Weight Watchers meeting, visited her dermatologist, and slept at her ex- boyfriend’s home.2Little did she know that an app on her phone tracked her precise location as often as every two seconds. Though Ms. Magrin knew apps could track geolocation data, she found it “disturbing” to know how often her precise location was tracked and then sold to advertisers. Ms. Magrin’s identity was not tied to the information sold to advertisers, but The New York Times reportedly connected the tracked geolocation dot to Ms. Magrin with ease, given that she was the only person during that time of day who regularly traveled the 14-mile commute to school. With her permission, The Times reviewed four months of Ms. Magrin’s geolocation data and determined that her location was recorded over 8,600 times—an average of once every 21 minutes. Another cell phone user, Elise Lee, said she found it “very scary” having her precise geolocation data tracked: “It feels like someone is following me, personally.” Yet perhaps to Ms. Lee’s dismay and surprise, geolocation tracking may intrude further than even a private investigator, who has the legal right to follow her in public places, as long as they are not shadowing her in “unreasonable and obtrusive” ways. As soon as Ms. Lee enters her home, the investigator’s right to follow her ceases. They cannot record her movements within her own home; such an action would likely constitute trespass under property law and an invasion of privacy under tort law. If private investigators cannot lawfully record Ms. Lee’s movements within her home, why should her phone be any different? This Note analyzes whether trespass and privacy tort standards could be reasonably applied to electronically tracking precise geolocation data within an individual’s own home. …

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