Tag Archives: Expectation of privacy

GPS Tracking

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GPS Tracking

Another form of snooping that some suspicious spouses might be tempted to employ is placing a GPS tracking device on the spouse’s car to track his or her whereabouts.  But before you start fantasizing about spying like Jack Bauer (or Sydney Bristow, for the ladies), it is unclear right now whether this form of spying on your spouse is permissible.  On this subject, the law has not yet caught up with technology.

In US v. Jones last year, the Supreme Court addressed whether the government may use GPS devices hidden on vehicles to track the activities of criminal suspects.  The Court found that using such a device does constitute a search under the 4th Amendment, so police are generally required to obtain a warrant in order to place a GPS device on a suspect’s vehicle.

When it comes to you and your spouse, some lawyers disagree about whether the Jones decision would apply to using a GPS device to track a family member.  There is no law on this subject yet, and it is unclear how courts will rule.  In the family law context, the question boils down to two issues:  (1) ownership and (2) expectation of privacy.

Ownership

If you own the car, it is titled in your name, and you are not separated from your spouse, then you most likely have legal authority to install a GPS device on the car.  The same would be true if you wanted to track your spouse using a phone GPS app — if you own the phone, it is registered under your name, and you are not separated from your spouse, you can probably install the tracking app without being in any legal trouble.

Expectation of Privacy

If, however, you do not own the car or phone, it is not titled in your name, or you are separated from your spouse, then your spouse may very well have an expectation of privacy in his or her car and phone.  While North Carolina courts have not specifically addressed this issue, you should think twice about using GPS under these circumstances because your spouse may have grounds to sue you for several torts.  You could potentially be liable for money damages for invasion of privacy or trespass if you violate your spouse’s expectation of privacy.

Both technology and the law are constantly changing.  If you are thinking of using a GPS device to track your spouse, talk to a lawyer first about where the law stands at the time and how your actions might affect you and your legal position in the future.

Facebook Snooping

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Snooping

It seems like everyone is on Facebook today, doesn’t it?  Your spouse probably is.  Your wife’s high school boyfriend might be.  Your husband’s buddies who know what went on at that Vegas bachelor party are.  Between the chat function, private messages, and reckless over-sharing status updates, there is vast opportunity to find information that your spouse or opponent might not want you to know.  So, if you are involved in a separation, divorce, or custody dispute, can you snoop in the opposing party’s Facebook account?

Public Posts

The information posted on your spouse’s Facebook “wall” that is readily visible to you and his or her other Facebook friends, is fair game.  There is no expectation of privacy in these types of posts since they are put on a public forum for everyone to see.  If an incriminating post or picture appears, print it out and show it to your lawyer.  The printout may or may not be admissible in court, but you and your lawyer will at least have it to consider.

Private Chats and Messages

When it comes to private chats and messages on your spouse’s Facebook account, it is a bit more difficult to know whether you might be violating the law.  This is a Title II question and ultimately comes down to authorization.  Your ability to legally access the Facebook activity depends on whether, and to what extent, your spouse has authorized you to access his or her Facebook.  We’ll address the issue of authorization in more depth in terms of accessing your spouse’s emails, but when it comes to Facebook, if your spouse knows and has given you permission to log on to her Facebook account in the past (and has not since changed the password), then you probably would not be violating the wiretapping statutes by logging in and looking around.

If, however, you simply know your spouse well enough to guess her password or correctly answer her security questions, then your access is unauthorized and illegal.  Using a spyware program that tracks chats, messages, or passwords is also illegal.  Thus, the safest course is to limit your snooping to the public posts of your spouse or anyone else you suspect of improper behavior.  Immediately print out any important information you find, since it could be deleted later. If you are not sure whether you can legally access your spouse’s account, err on the side of caution and don’t look.  Talk with your lawyer about Facebook (your account and your spouse’s), and be prepared to answer truthfully questions about access to both accounts.