Is the GPS Tracking of a Cheating Spouse an Invasion of Privacy?

Can I track my cheating ex-wife with a GPS or some other type of hi-tech gizmo? The answer to this question is a very “grey” maybe. Technically, a legal argument can be made after reviewing current case law that you can legally place a GPS on your spouse’s vehicle and spy on her. Nonetheless, please keep in mind that your ex-wife can always find the GPS device, and then file a harassment charge against you. Thereafter, she can also file for a restraining order, and base her DV case on the underlying harassment case.

A very insightful case is Villanova v. Innovative Investigations, Inc., 420 N.J. Super. 353 (App. Div. 2011). Here, the major issue was whether the placement of a global positioning system (“GPS”) device in a person’s vehicle without his or her knowledge constitutes the tort of invasion of privacy. Here, the Appellate Division held that putting a GPS device in a spouse’s car was not considered to be an invasion of privacy.

In the Villanova case, the wife, in the middle of a divorce case, hired a private investigator to follow her husband. She was trying to catch him cheating on her. The plaintiff-husband Villanova then filed a complaint for the intentional or negligent invasion of his right to privacy after his ex-wife (then current wife) installed a GPS device in the family car following the advice of her private investigator. Mrs. Villanova retained the services of Innovative Investigations, Inc., a private investigation company, after she suspected her husband of cheating on her.

The plaintiff alleged that by placing a GPS tracking device in the vehicle that was shared by the couple violated his privacy rights. The trial court granted summary judgment in favor of defendants because the plaintiff/husband Villanova was unable to establish that he had any reasonable expectation of privacy in any of the information that was allegedly obtained by the GPS device. It was undisputed that the vehicle in which the GPS was installed was jointly owned by the Villanova couple. The Appellate Court opined, that in order to substantiate a claim for the invasion of privacy, a plaintiff must be able to prove he/she has some privacy interest in the information at issue.

Ultimately, the wife used this GPS evidence that she obtained at the divorce trial. During the divorce case, the husband amended his divorce complaint, and he added a count for the invasion of privacy damages against the wife. The husband also added the personal investigator as an additional defendant to the divorce case. However, the court denied this request. The invasion of privacy claim that was filed against the private investigator was ultimately dismissed. The trial court held that the husband had no reasonable expectation of privacy while he was driving on public roads. Thereafter, the husband appealed.

The Appellate Division also held that Villanova had no reasonable expectation of privacy because the GPS tracked his movements on the public streets. The court provided in pertinent part:

As we have stated, there is no direct evidence in this record to establish that during the approximately forty days the GPS device was in the Denali glove compartment the device captured a movement of plaintiff into a secluded location that was not in public view, and, if so, that such information was passed along by Mrs. Villanova to defendants. Plaintiff urges that we find, for summary judgment purposes, that an inference could reasonably be drawn from defendants’ report to establish such a fact through circumstantial evidence.

Everything described in this report occurred on public roadways and in plain view of the public. There is nothing in this report that could support an inference that any surveillance of plaintiff extended into private or secluded locations that were out of public view and in which plaintiff had a legitimate expectation of privacy.

What are the main points of the Villanova v. Innovative Investigations, Inc. case?
The main point of the Villanova case is that the interplay between the law of invasion of privacy and family law is always in a constant state of flux. You can take the same set of facts as established in the Villanova case and litigate the same type of case in a few years before a new set of judges, and you could obtain an entirely new result. The key legal term of art in any case involving an invasion of privacy rights is: “What is considered to be a reasonable expectation of privacy?” In the world of family law the answer to this question is always in a constant state of flux.

A very prevalent legal issue in family court is what constitutes an invasion of privacy. I constantly hear of stories of spouses installing “gizmos” or tracking software on their husband’s or wife’s computer. I have also heard of many stories wherein a spouse will install cameras in the home to try to catch the other spouse cheating. Finally, I have heard of stories wherein spouses bug phone conversations in the home. In these type of scenarios, the key issue is whether the computer, the phone, or the house was jointly owned or shared. If it was, then in the majority of the cases, most judges will not consider this type of conduct to be considered to be an invasion of privacy. However, if a person hacks into his wife’s work computer, or installs bug software on it, then this type of action certainly could be considered to be a marital tort of the invasion of privacy. If a husband bugs his wife’s cell phone, then this conduct also could be considered to be a marital tort, because the married couple did not share the phone. Finally, if a husband places a GPS device on a cheating spouse’s paramour vehicle then this conduct could also be considered an invasion of privacy.

In summary, the key issue is whether the married couple shared the house, the computer, or the vehicle. If the couple shared these assets, then a strong argument could be made that since the married couple shared these assets, then he or she could not have any reasonable expectation of privacy of the following:

That the phone conversations would not be recorded.
That the computer logs would not be recorded.
That the home would not be subject to surveillance.

However, please keep in mind that many judges could consider this type of behavior to constitute harassment. Thus, a conniving spouse could file a DV case against you for trying to catch her cheating. What a world we live in!

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