The Illinois Supreme Court upheld Chicago’s draconian food truck regime last month, which bans mobile vendors from selling within 200 feet of any restaurant, supermarket, or other brick-and-mortar business that serves food. To ensure compliance, Chicago is one of the only cities in the nation that forces food truck owners to install GPS tracking devices on their vehicles. The city can then access that data without a warrant. Incredibly, not only did the Illinois Supreme Court uphold the GPS requirement, it ruled that it wasn’t even a “search,” partly because it was a “condition of their license to operate on the streets of Chicago.”
With this decision, small business owners now have fewer constitutional protections than accused criminals in Illinois. And by rewriting licensing requirements, cities can create sweeping dragnets to surveil entrepreneurs, free from court scrutiny. Licensing, of course, goes far beyond food trucks. Today, occupational licensing covers almost one-fifth of the Illinois workforce, with more than one million Illinoisans needing a license to earn a living.
“This is a grave threat to all Illinoisans, not just those who run food trucks,” said Institute for Justice Senior Attorney Robert Frommer, who sued the city of behalf of food truck owners. “People are being forced to choose between their right to privacy and their right to work.”
“We are pleased with this decision,” Rosa Escareno, commissioner of the city’s Department of Business Affairs and Consumer Protection, told the Chicago Tribune. “We have always maintained that our food truck regulations strike the right balance between the interests of food trucks and restaurants.”
In Chicago, food trucks can only operate after they have permanently installed a GPS device that “sends real-time data to any service that has a publicly-accessible application programming interface (API).”As the city’s rules make clear, the data collected is both extensive and intrusive: The GPS device must be always active whenever the food truck is open for business or at a commissary, while the tracker has to transmit its location every five minutes. Moreover, the GPS providers must retain at least six months of historical location information.
To vindicate the rights of food truck owners, IJ turned to the 2012 decision United States v. Jones, where the U.S. Supreme Court case ruled that placing a GPS tracking device on someone’s car counted as a “search” under the Fourth Amendment. In Jones, the FBI attached a GPS tracker onto Antoine Jones’ Jeep Grand Cherokee and monitored it without a warrant for 28 days, which the government then used to convict Jones on cocaine charges.
“The Government physically occupied private property for the purpose of obtaining information,” the late Justice Antonin Scalia wrote for the court. “We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”
But the Illinois Supreme Court claimed that Jones was “distinguishable” and “very different” from Chicago’s mandatory GPS tracking. First, in Jones, the government directly placed the device on the car, while in Chicago, the government orders food truck owners to self-install. In addition, “the GPS device does not transmit the food truck’s location data directly to the city,” but instead to a third-party service provider. As a result, the tracking wouldn’t violate article I, section 6 of the Illinois Constitution, the state’s equivalent of the Fourth Amendment.
Those distinctions aren’t nearly as relevant as the court claims. In a major victory for digital privacy, the U.S. Supreme Court ruled last year that accessing cell phone records from a third party without a warrant violated the Fourth Amendment. “Whether the government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier,” Chief Justice John Roberts wrote for the majority in Carpenter v. United States, “we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through [cell-site location information]. The location information obtained from Carpenter’s wireless carriers was the product of a search.” As Roberts noted, “Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.”
Moreover, the U.S. Supreme Court unanimously ruled in 2015 that North Carolina’s mandatory satellite-based monitoring of sex offenders who had served their sentences was bound by the Fourth Amendment, even though it was a civil, and not criminal, proceeding. “The state’s program is plainly designed to obtain information,” the court held in Grady v. North Carolina. “And since it does so by physically intruding on a subject’s body, it effects a Fourth Amendment search.”
Perhaps unsurprisingly, the Illinois Supreme Court never even mentioned the Grady or Carpenter decisions in its opinion, much less try to distinguish them. Yet even if the GPS tracking did qualify as a search, the Illinois Supreme Court would still uphold the law: “We find that it is not an unreasonable search and, therefore, passes constitutional muster.”
The justices relied on a 1987 U.S. Supreme Court decision that lets the government inspect “closely regulated” industries without warrants. In New York v. Burger, the High Court claimed that business owners have a “reduced expectation of privacy” when working, and so “a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment,” so long as it serves a “substantial” government interest, is necessary, and provides “a constitutionally adequate substitute for a warrant.”
However, the 200-foot rule (the raison d’ être for the GPS mandate) was designed to protect restaurants from competition, which is not a “legitimate government interest,” IJ argued. The Illinois Supreme Court glossed over the main justification for the trackers, and, siding with city, held that the devices were necessary to conduct inspections and respond to health issues. The court further claimed that other, “less intrusive” ways to locate mobile vendors, like social media or just calling them, were “unreliable.”
But in an October 2014 deposition, the city’s representative and director of food protection admitted that if someone forgot to turn on the GPS device, “then it is going to make it impossible for us to find them unless we use social media.” In other words, GPS tracking suffers from the same shortcomings as those other technologies the court derided as “unreliable.”
Even if the GPS tracking were meant to ensure health inspections, rather than track down restaurant rivals, IJ argued that Chicago failed the other two prongs in Burger. Chicago’s GPS requirement is a stark outlier, with the overwhelming majority of cities regulating food trucks without violating their Fourth Amendment rights. That includes Los Angeles, which, thanks to liberalization, has a thriving, world-famous street-food scene (and dispersed over a much larger geographic area). In fact, Chicago officials even conceded that “the city has never requested location data from any food truck’s service provider.” That further undermines the argument that it actually needs satellite surveillance to monitor food trucks.
“There is nothing reasonable about the government prohibiting you from operating near your competitors or tracking you like a criminal out of fear you may sell delicious food to willing customers,” Frommer said. “The Illinois Supreme Court’s failure to stand up to the powerful on behalf of ordinary folks does a profound disservice to the constitutional rights of everyone in the state.”
