NJ Appeals Court: No Privacy Violation When Spouse Uses GPS to Track Vehicle — Villanova v. Innovative Investigations, Inc.
[Post by Venkat Balasubramani]
Villanova v. Innovative Investigations, Inc., et al., A-0654-10T2 (N.J. Ct. App. July 7, 2011)
A New Jersey appeals court decided that a wife’s use of a GPS device to track her husband’s movements did not violate the husband’s privacy rights.
Background: The plaintiff was married, and his wife suspected him of having an affair. The wife hired an investigative firm (the defendants), who conducted a preliminary investigation. It recommended that the wife place a GPS device in the husband’s car in order to better track his movements and assist with the investigation. The wife purchased the device [through the internet, of course!] and placed it in the glove compartment of the husband’s Denali, where it remained for forty days. The wife sporadically checked the GPS device’s movements online and passed along the information to defendants. Defendants used the information to conduct their investigation, which did not seem to yield any information that I would characterize as a blockbuster. The closest the investigators came to a confrontation with the plaintiff is when they waited outside the home of the woman the husband was suspected of having an affair with, and observed the husband and this woman in his car. The investigators followed the car, but the husband realized he was being followed.
The husband brought invasion of privacy claims against the investigative firm and its principal. (The husband waived his privacy claims against the ex-wife in the divorce settlement.)
Discussion: The court notes the four types of invasion of privacy claims under New Jersey law: (1) intrusion, (2) public disclosure of private facts, (3) false light, and (4) misappropriation. Here, plaintiff argued that his (now-ex) wife and the firm intruded upon his solitude. Intrusion requires a showing that the intrusion would have been “highly offensive to the reasonable person.” A defendant is only liable if he or she “intrudes into a private place.”
The court rejects the plaintiff’s claims finding that:
There is nothing [in the record] to 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.
Additionally, the court found that there was no evidence that the wife passed along any private location tracking information to defendants:
a factfinder might, at the very most, infer that [the wife] verbally passed on to defendants information from the GPS company’s reports and that defendants used that information as a basis for proceeding on July 28, 2007 to the Heritage Road area. However, there is nothing to establish that any possible invasion of plaintiff’s privacy and seclusion ever occurred. Such a finding would require that [the husband] was in a location where he had a reasonable expectation of privacy.
Based on this, the court finds that summary judgment was properly granted to defendants.
Divorces seem to be fertile grounds for court decisions around privacy and technology. (See, e.g., my post on Miller v. Meyers, an email access case: “Court: Husband’s Access of Wife’s Email to Obtain Information for Divorce Proceeding is not Outrageous.”)
There was an interesting fact that didn’t receive as much as attention as I thought it should: the car was jointly owned. I’m surprised the court did not discuss the fact that since the wife owned the car, she could have argued that she had the right to track its movements. (On a related note, the plaintiff, who was a police office, tried to argue that he used the car for law enforcement purposes once in awhile, but the court is extremely skeptical of this argument.) Another fact that the court did not focus on directly is whether the result would have been different if the investigative firm (rather than the wife) was the one who did the GPS tracking. Kash Hill’s post makes this point.
It was also interesting that despite using a “reasonable expectation of privacy” standard, the court does not discuss the diminished expectation of privacy for the husband vis a vis his wife . . . who is trying to investigate him for having an affair. I’m not suggesting that spouses waive their privacy rights with respect to one another, but if you’re having an affair, is it not reasonable to expect that your spouse may be checking up on you? In Miller v. Meyers, the email case, the court notes:
A husband prying into his wife’s email, after learning that she was engaging in conversations and photo sharing, and then using damaging emails in a divorce and custody proceedings can hardly be considered “extreme and outrageous,” “beyond all possible bounds of decency,” or “utterly intolerable in a civilized society.”
I wondered whether the same could be said of this case. Here, the wife’s argument is even stronger, because she’s not allegedly violating any other statutes intended to protect the privacy of electronic communications.
GPS tracking is one of those areas where technology and notions of privacy clash. The case law says that you have no expectation of privacy when you are in a public space, but a GPS device can track your every movement in a way that someone who physically followed you in a car couldn’t conceivably do. The argument from privacy advocates is that GPS tracking–particularly long-term tracking–reveals more information than could be obtained if you physically followed someone. This was one of the arguments made by the federal appeals court in D.C., which held that warrantless GPS tracking caused Fourth Amendment problems because, among other things, “the sequence of a person’s movements may reveal more than the individual movements of which it is composed.” (The Supreme Court accepted review of this case, as noted in this Wired article: “Supreme Court to Decide Constitutionality of Warrantless GPS Monitoring.” A slew of federal appeals courts have come to the opposite conclusion that warrantless tracking of a car does not cause any Fourth Amendment problems.)
A final note is that private investigators have it tough these days. They definitely do not travel down a risk-free path in pursuing their investigations. Virtually any investigative decision would seem to cause concern that the subject will assert some sort of privacy claim. I suppose this was always true, but as technology improves, it becomes much easier to eavesdrop and track in a way that creates a greater risk of liability for the investigator.