Vehicle Tracking Surveillance

In our era of fast-paced technological development, you may know that a GPS-enabled cell phone could allow you to trace your teenager's steps, but did you know that you could track your schnauzer through his GPS-enabled dog collar? Inventive product designers are finding new ways for us to enjoy the government-run Global Positioning System all the time.

How GPS Tracking Devices Work

As GPS-enabled products proliferate, attaching a tracker to a vehicle may seem old hat. However, judging from recent discussions with colleagues and clients, the way GPS devices work and when GPS use is legal remain a mystery. Hopefully, this overview will give divorce lawyers an idea of the surveillance instruments available and the law that is rushing to keep apace.

Whether in a car or on a dog collar, GPS tracking devices tend to work in one of two ways: 'passively' or 'actively.' Passive tracking devices, also known as 'data loggers,' do not broadcast location information when received. Instead, these trackers collect positioning data from the GPS satellite network and store the data in an internal memory. When the passive tracking device is later taken out of the vehicle and connected to a computer, the data can be downloaded.

In contrast to passive devices, active devices, also known as 'real-time' trackers, collect positioning data from the GPS satellite network and immediately broadcast the data to the end user. Generally, real-time trackers send the data through cellular phone networks. Often the data is sent to a computer that displays the data on an electronic map by way of the Internet or an internal computer program. Frequently, active tracking device merchants will sell a monthly subscription service allowing the end user to view the transmitted data on the merchant's website. Thus, with an active tracking device, an end user can literally watch as the image of the tracked vehicle moves on an electronic map in real time.

These devices may be battery-powered or electrically installed. Often, trackers purchased by civilians for personal surveillance purposes operate on three or four AAA batteries for a certain number of hours. These are usually passive trackers costing around two hundred dollars. Battery-operated active trackers sell for six hundred to eight hundred dollars. Purchasers should be aware that battery-operated devices may not provide the running time advertised. Short-term battery use appears to be the most common consumer complaint. Some top-flight trackers come with rechargeable batteries and 24-hour technical assistance call services.

When Surveillance May Be Legal

As these GPS tracking systems become more easily accessible, an increasing number of spouses are using trackers to monitor their unsuspecting mates. Is this high-tech spy activity legal? It depends on ownership, use, and possibly device location.

Few concrete prohibitions can be found. Yet, there are several legal theories upon which an aggrieved, spied-upon spouse may bring a claim, including violation of state and federal wiretap laws, violation of state vehicle recording statutes, invasion of privacy, trespass, and stalking. Thus, advising a client what to do with a folder full of tracking records tending to show a spouse was in the wrong place at the wrong time can prove treacherous.

The key to GPS-surveillance analysis is close examination of the facts. First, find out who owned the car to which the GPS tracking device was attached. Second, determine the original purpose for the surveillance. Third, note where the GPS attachment was located. For instance, was the GPS attachment located in the car or on the car's exterior, perhaps on the undercarriage? In sum, if all the facts lead the court to believe the surveilled spouse had a reasonable expectation of privacy, then the spying spouse may be liable.

The Federal Wiretap Act

Federal Wiretap Act regulates 'electronic communication,' which includes surveillance data made possible through a GPS-enabled tracking device. See 18 U.S.C. ' 2510, as amended by Title I of the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, Title I, 100 Stat. 1848 (1986). If found guilty of violating the Act, a civilian spying on another civilian may be responsible for economic, non-economic and punitive damages. The key exception to liability is consent to surveillance. 18 U.S.C. ' 2510 (12)(D). Just as an owner of a computer has a right to monitor use of his computer, a car owner has the right to track his own car. Put another way ' as is often stated under the common law ' ownership implies consent. Thus, where a civilian can prove ownership, he will often be free of liability under the Federal Wiretap Act. Most state wiretap statutes also have a consent exception. See, e.g., Ala. Code ' 13A-11-30 (2007); see also Fla Stat. ” 934.01 – 934.03 (2007); Tenn. Code Ann. ' 39-13-601 (2007).

Motor Vehicle Recording Device Statutes

Over a handful of states have also recently enacted motor vehicle recording device statutes, also known as 'event recording device statutes,' to regulate GPS-enabled tracking devices. Virginia's statute is a good example of this new wave of legislation. In Virginia, GPS-recorded data may only be accessed by the vehicle owner or with the consent of the vehicle owner or owner's representative, except in very limited circumstances, including by court order. Va. Code Ann. ' 46.2-1088.6 (2006); see also N.Y. Veh. & Traf. Law ' 416-B (2005); Cal. Veh. Code
' 9951-9953 (West 2003). Because, as noted above, ownership implies consent, generally speaking, ownership of a vehicle will likely protect a spying party from liability. So, if your client owns, or jointly owns, the vehicle being tracked, then the surveillance activity is probably legal.

However, ownership is not the end of the inquiry. In Colorado v. Sullivan, the Colorado court of appeals did not focus on ownership when affirming a husband's stalking conviction for tracking his wife's movements with a GPS device. Colorado v. Sullivan, 53 P.3d 1181 (Colo. Ct. App. 2002) (noting the Colorado stalking statute had no physical presence requirement). While the appellate court referred to the vehicle tracked as the 'wife's vehicle' or 'her vehicle,' it did not dwell on ownership, nor did it specifically consider joint ownership. Id.

Invasion of Privacy

Some scholars argue that if a tracking spouse's GPS use offends notions of what a reasonable person would consider a private matter, the tracked spouse should have an invasion of privacy claim. See Aaron Renenger, 'Note, Satellite Tracking & the Right to Privacy,' 53 Hastings L.J. 549, 552 (2002). In other, non-marital contexts, however, invasion of privacy actions based on GPS-enabled surveillance have been unsuccessful. For example, an employer has been found to have a right to use a GPS device to investigate employee off-duty conduct without notice when the conduct is related to an employer's business interest. William E. Hartsfield, Investigating Employee Conduct ' 7:15 (2004). Also, a rental car dealer can track rented vehicles without prior disclosure in the rental agreement. Shellee Smith, 'Car Rentals with GPS Systems,' NBC News, Aug. 28. 2003, available at http://www.driveinpeace.com/car_rentals_readfirst.htm (last visited Aug. 13, 2007).

One suggestion to guard against liability for invasion of privacy is to focus on the original purpose of the surveillance. For instance, a husband may place a tracking device in a family car to track a teenage child. He then discovers that his wife is taking the car to meet a paramour. If the wife brings an invasion of privacy claim, he may escape liability, in part, because he can show that the original use of the equipment was legal.

Trespass

While Fourth Amendment law is not directly applicable to civilian-on-civilian spying, it can be informative to look to search and seizure cases to get a sense of the intrusive nature of new technologies. Unfortunately, cases involving GPS use conflict. In Washington v. Jackson, 76 P.3d 217, 224 (Wash. 2003), the installation of a GPS receiver on a defendant's vehicle constituted a search. By contrast, the Ninth U.S. Circuit Court of Appeals stated that GPS tracking devices provided augmentation to the senses only and thus did not constitute a search. Perhaps significantly, the court found that placing the GPS unit on the undercarriage of a vehicle was not a search because no reasonable expectation of privacy existed in the vehicle's exterior. United States v. McIver, 186 F.3d 1119, 1126-27 (9th Cir. 1999) (citing United States v. Knotts, 460 U.S. 276 (1983) (holding mere tracking of a vehicle on public streets by means of a less sophisticated device (a beeper) is not a search)); see also U.S. v. Moran, 349 F. Supp. 2d 425, 467 (N.D.N.Y. 2005) (finding no subjective privacy expectation where GPS akin to visual surveillance). Judge Posner of the Seventh Circuit recently found police warrantless employment of a GPS device constitutional. U.S. v. Garcia, 474 F.3d 994 (7th Cir. 2007) (placement of the attachment on the undercarriage of defendant's vehicle was not a search). In Knotts, the Court left open whether installing the device inside the vehicle converted the subsequent tracking into a search. 460 U.S. at 279 n.2.

Applying Fourth Amendment law to trespass in personal property, an argument could be made that placing a GPS tracker on a car undercarriage is not a trespass. It would not, perhaps, be a trespass because outside placement is not violative in the way that entering the trunk and attaching a device may be. Therefore, it may be helpful when talking with a client to determine the extent to which the client entered the tracked vehicle.

Conclusion

As stated above, the essential inquiry to any GPS device use is whether the surveilled spouse had a reasonable expectation of privacy. If the spying party has an argument for ownership of the vehicle, he may escape liability. Furthermore, the original intended purpose of the surveillance and the placement of the device on the vehicle may be relevant. Many liability pitfalls remain, and the parameters for GPS device use are far from clear. In the next five years, state and federal law will likely take steps to educate all of us on the proper use of our latest tracking tools.

William R. Wright, a member of this newsletter's Board of Editors, practices with Wright Law Firm, P.A. in Jackson, MS, where he limits his practice to all areas Family Law with emphases on complex financial issues and jurisdictional disputes. He is a Fellow in the American Academy of Matrimonial Lawyers and has served two terms as Chairman of the Family Law Section of the Mississippi Bar.

In our era of fast-paced technological development, you may know that a GPS-enabled cell phone could allow you to trace your teenager's steps, but did you know that you could track your schnauzer through his GPS-enabled dog collar? Inventive product designers are finding new ways for us to enjoy the government-run Global Positioning System all the time.

How GPS Tracking Devices Work

As GPS-enabled products proliferate, attaching a tracker to a vehicle may seem old hat. However, judging from recent discussions with colleagues and clients, the way GPS devices work and when GPS use is legal remain a mystery. Hopefully, this overview will give divorce lawyers an idea of the surveillance instruments available and the law that is rushing to keep apace.

Whether in a car or on a dog collar, GPS tracking devices tend to work in one of two ways: 'passively' or 'actively.' Passive tracking devices, also known as 'data loggers,' do not broadcast location information when received. Instead, these trackers collect positioning data from the GPS satellite network and store the data in an internal memory. When the passive tracking device is later taken out of the vehicle and connected to a computer, the data can be downloaded.

In contrast to passive devices, active devices, also known as 'real-time' trackers, collect positioning data from the GPS satellite network and immediately broadcast the data to the end user. Generally, real-time trackers send the data through cellular phone networks. Often the data is sent to a computer that displays the data on an electronic map by way of the Internet or an internal computer program. Frequently, active tracking device merchants will sell a monthly subscription service allowing the end user to view the transmitted data on the merchant's website. Thus, with an active tracking device, an end user can literally watch as the image of the tracked vehicle moves on an electronic map in real time.

These devices may be battery-powered or electrically installed. Often, trackers purchased by civilians for personal surveillance purposes operate on three or four AAA batteries for a certain number of hours. These are usually passive trackers costing around two hundred dollars. Battery-operated active trackers sell for six hundred to eight hundred dollars. Purchasers should be aware that battery-operated devices may not provide the running time advertised. Short-term battery use appears to be the most common consumer complaint. Some top-flight trackers come with rechargeable batteries and 24-hour technical assistance call services.

When Surveillance May Be Legal

As these GPS tracking systems become more easily accessible, an increasing number of spouses are using trackers to monitor their unsuspecting mates. Is this high-tech spy activity legal? It depends on ownership, use, and possibly device location.

Few concrete prohibitions can be found. Yet, there are several legal theories upon which an aggrieved, spied-upon spouse may bring a claim, including violation of state and federal wiretap laws, violation of state vehicle recording statutes, invasion of privacy, trespass, and stalking. Thus, advising a client what to do with a folder full of tracking records tending to show a spouse was in the wrong place at the wrong time can prove treacherous.

The key to GPS-surveillance analysis is close examination of the facts. First, find out who owned the car to which the GPS tracking device was attached. Second, determine the original purpose for the surveillance. Third, note where the GPS attachment was located. For instance, was the GPS attachment located in the car or on the car's exterior, perhaps on the undercarriage? In sum, if all the facts lead the court to believe the surveilled spouse had a reasonable expectation of privacy, then the spying spouse may be liable.

The Federal Wiretap Act

Federal Wiretap Act regulates 'electronic communication,' which includes surveillance data made possible through a GPS-enabled tracking device. See 18 U.S.C. ' 2510, as amended by Title I of the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, Title I, 100 Stat. 1848 (1986). If found guilty of violating the Act, a civilian spying on another civilian may be responsible for economic, non-economic and punitive damages. The key exception to liability is consent to surveillance. 18 U.S.C. ' 2510 (12)(D). Just as an owner of a computer has a right to monitor use of his computer, a car owner has the right to track his own car. Put another way ' as is often stated under the common law ' ownership implies consent. Thus, where a civilian can prove ownership, he will often be free of liability under the Federal Wiretap Act. Most state wiretap statutes also have a consent exception. See, e.g., Ala. Code ' 13A-11-30 (2007); see also Fla Stat. ” 934.01 – 934.03 (2007); Tenn. Code Ann. ' 39-13-601 (2007).

Motor Vehicle Recording Device Statutes

Over a handful of states have also recently enacted motor vehicle recording device statutes, also known as 'event recording device statutes,' to regulate GPS-enabled tracking devices. Virginia's statute is a good example of this new wave of legislation. In Virginia, GPS-recorded data may only be accessed by the vehicle owner or with the consent of the vehicle owner or owner's representative, except in very limited circumstances, including by court order. Va. Code Ann. ' 46.2-1088.6 (2006); see also N.Y. Veh. & Traf. Law ' 416-B (2005); Cal. Veh. Code
' 9951-9953 (West 2003). Because, as noted above, ownership implies consent, generally speaking, ownership of a vehicle will likely protect a spying party from liability. So, if your client owns, or jointly owns, the vehicle being tracked, then the surveillance activity is probably legal.

However, ownership is not the end of the inquiry. In Colorado v. Sullivan , the Colorado court of appeals did not focus on ownership when affirming a husband's stalking conviction for tracking his wife's movements with a GPS device. Colorado v. Sullivan , 53 P.3d 1181 (Colo. Ct. App. 2002) (noting the Colorado stalking statute had no physical presence requirement). While the appellate court referred to the vehicle tracked as the 'wife's vehicle' or 'her vehicle,' it did not dwell on ownership, nor did it specifically consider joint ownership. Id.

Invasion of Privacy

Some scholars argue that if a tracking spouse's GPS use offends notions of what a reasonable person would consider a private matter, the tracked spouse should have an invasion of privacy claim. See Aaron Renenger, 'Note, Satellite Tracking & the Right to Privacy,' 53 Hastings L.J. 549, 552 (2002). In other, non-marital contexts, however, invasion of privacy actions based on GPS-enabled surveillance have been unsuccessful. For example, an employer has been found to have a right to use a GPS device to investigate employee off-duty conduct without notice when the conduct is related to an employer's business interest. William E. Hartsfield, Investigating Employee Conduct ' 7:15 (2004). Also, a rental car dealer can track rented vehicles without prior disclosure in the rental agreement. Shellee Smith, 'Car Rentals with GPS Systems,' NBC News, Aug. 28. 2003, available at http://www.driveinpeace.com/car_rentals_readfirst.htm (last visited Aug. 13, 2007).

One suggestion to guard against liability for invasion of privacy is to focus on the original purpose of the surveillance. For instance, a husband may place a tracking device in a family car to track a teenage child. He then discovers that his wife is taking the car to meet a paramour. If the wife brings an invasion of privacy claim, he may escape liability, in part, because he can show that the original use of the equipment was legal.

Trespass

While Fourth Amendment law is not directly applicable to civilian-on-civilian spying, it can be informative to look to search and seizure cases to get a sense of the intrusive nature of new technologies. Unfortunately, cases involving GPS use conflict. In Washington v. Jackson , 76 P.3d 217, 224 (Wash. 2003), the installation of a GPS receiver on a defendant's vehicle constituted a search. By contrast, the Ninth U.S. Circuit Court of Appeals stated that GPS tracking devices provided augmentation to the senses only and thus did not constitute a search. Perhaps significantly, the court found that placing the GPS unit on the undercarriage of a vehicle was not a search because no reasonable expectation of privacy existed in the vehicle's exterior. United States v. McIver , 186 F.3d 1119, 1126-27 (9th Cir. 1999) (citing United States v. Knotts , 460 U.S. 276 (1983) (holding mere tracking of a vehicle on public streets by means of a less sophisticated device (a beeper) is not a search)); see also U.S. v. Moran , 349 F. Supp. 2d 425, 467 (N.D.N.Y. 2005) (finding no subjective privacy expectation where GPS akin to visual surveillance). Judge Posner of the Seventh Circuit recently found police warrantless employment of a GPS device constitutional. U.S. v. Garcia , 474 F.3d 994 (7th Cir. 2007) (placement of the attachment on the undercarriage of defendant's vehicle was not a search). In Knotts, the Court left open whether installing the device inside the vehicle converted the subsequent tracking into a search. 460 U.S. at 279 n.2.

Applying Fourth Amendment law to trespass in personal property, an argument could be made that placing a GPS tracker on a car undercarriage is not a trespass. It would not, perhaps, be a trespass because outside placement is not violative in the way that entering the trunk and attaching a device may be. Therefore, it may be helpful when talking with a client to determine the extent to which the client entered the tracked vehicle.

Conclusion

As stated above, the essential inquiry to any GPS device use is whether the surveilled spouse had a reasonable expectation of privacy. If the spying party has an argument for ownership of the vehicle, he may escape liability. Furthermore, the original intended purpose of the surveillance and the placement of the device on the vehicle may be relevant. Many liability pitfalls remain, and the parameters for GPS device use are far from clear. In the next five years, state and federal law will likely take steps to educate all of us on the proper use of our latest tracking tools.

William R. Wright, a member of this newsletter's Board of Editors, practices with Wright Law Firm, P.A. in Jackson, MS, where he limits his practice to all areas Family Law with emphases on complex financial issues and jurisdictional disputes. He is a Fellow in the American Academy of Matrimonial Lawyers and has served two terms as Chairman of the Family Law Section of the Mississippi Bar.