By Sarah Clay Leyshock

With all the advances in technology these days, it is no surprise that the legal issues surrounding the use of technology are becoming more and more complicated.  For example, simple “tracking devices” are available at your local tech-gadget store.  Previously, you would have had to hire a private investigator to find out where your employee, spouse, or other person was going when you weren’t around.  Now, your average chain-store consumer can readily purchase and use a GPS tracking device that records the geographic coordinates of the device’s movements.  Many of these devices are smaller than cell phones and can be discreetly dropped into a purse or suitcase; others are magnetic and can easily be attached to a vehicle.  Kind of creepy, isn’t it?  Not all uses of these devices are illicit, however.  Many employers, parents, hikers, and pet owners are serving legitimate business and personal interests with their use of tracking devices.  In general, though, the use of a GPS tracking device without the knowledge of the person being tracked can lead to more than what you are looking for—it can lead to undesirable and costly legal issues.

Just because the technology is readily available for purchase doesn’t mean that the use of that technology is without legal risk.  Another example of readily available technology—wiretapping and electronic surveillance gadgets like pen registers, trap and trace devices, and many smartphone apps that intercept wire, oral or electronic communications—are highly regulated and generally prohibited by Federal laws.  At this point, no Federal law specifically prohibits a private individual’s use of GPS tracking devices.  But, in a few states, the use of tracking devices without a warrant is a crime.  Further, the use of these devices could constitute evidence of other criminal activity, such as stalking or harassment under state or local law.

Beyond criminal liability, there is a significant risk of civil liability as well.  First and foremost, there are invasion of privacy issues to be concerned about.  In the past, courts have looked at the issue of whether placing a tracking device on a car driven by another person in a variety of different ways.  Most of these cases involve spouses tracking the other spouse.  In one case, the court declared there was no invasion of privacy where a spouse put a tracking device on the other spouse’s car because it was “marital property.”  In another case, the car was titled in the spouses joint names, and so there was no invasion of privacy.  In still another case, the court ruled that no invasion of privacy occurred because there was no reasonable expectation of privacy as to the car’s location while the tracked spouse was driving on public roads.  Each of these cases was decided by different courts in different jurisdictions.  Until recently, there really had not been a clear cut answer to the issue of whether tracking a car is an invasion of privacy.  In January 2012, however, the United States Supreme Court ruled that the warrantless use of GPS tracking devices violated a person’s reasonable expectation of privacy as protected by the Fourth Amendment.  Although the issue was addressed in the criminal context, the highest court in the land has declared there is a reasonable expectation of privacy as to a person’s tracked GPS location.  Therefore, courts all over the country can be expected to follow the Supreme Court’s holding in State v. Jones when addressing the issue in civil cases as well.

In addition to creating criminal and civil liability issues, the use of tracking devices can also have an impact on your on-going litigation or legal matter.  For example, if you obtained evidence as a result of GPS tracking that the court determines was illegal or an invasion of someone’s privacy, you are at risk of having that evidence thrown out by the judge before trial.  On the other hand, if your use of a tracking device is mentioned at trial, it could affect the jury’s impression of you, which impression can have a huge impact on the verdict.

Just as technology is constantly updating, so is the law in every jurisdiction.  Check in with your lawyers at Beckman Weil Shepardson first if you are considering buying or using a tracking device.  If you have concerns about someone tracking you, you should also check in with your lawyers who can assist you in determining what steps should be taken in response.  Oh, and you could also consider purchasing one of those other gadgets that detects GPS signals in order to tell you if your car of phone is being tracked.