The GPS companies often market these devices for those who are concerned their spouse is cheating on them.  No special training is required to install or use one of these devices.  To install the device, you must have access to the vehicle.  The quality, however, is dependent upon the type of device and its specifications.  Private investigators usually have the highest quality GPS units and are well trained in their use.

The 64 thousand dollar question is whether use of these devices without the driver’s and/or car owner’s knowledge and consent is legal.  Recently, the United States Supreme Court in the case of U.S. v. Jones, 565 U.S. ___ (2012)  considered whether police could use a GPS tracking device without a warrant to track an individual suspected of trafficking drugs.  In that case, the Court determined that the use of a GPS device to track a suspect without a search warrant was a violation of the Fourth Amendment protection against unreasonable search and seizure.  The Court found that by placing the GPS device on the suspect’s vehicle, “[t]he Government physically occupied private property…” and therefore committed an unlawful trespass.  Until this case, proponents of the legality of GPS tracking argued that there was no reasonable expectation of privacy since what the GPS tracks could also be tracked with the naked eye when the vehicle travels on public roads.

But even this argument was suspect because the vehicle is often on private property when the device is attached (a trespass) and the vehicle may travel on private property in places that could not be monitored with the naked eye.

In North Carolina, to prove common law trespass, the plaintiff merely has to show: (1) that they were in actual or constructive possession of the property; (2) that Defendant made an unauthorized entry; and (3) some damage (or if no actual damages, Plaintiff is entitled to nominal damages).  In addition to trespass by walking on a person’s property, North Carolina also recognizes the tort of trespass to chattels which is a trespass to personal property (like a car).  A successful action for trespass to chattel requires: (1) actual or constructive possession of the personal property at the time of the trespass; and (2) an unauthorized, unlawful interference or dispossession of the property, See Fordham v. Eason, 351 N.C. 151, 155, 521 S.E.2d 701, 704 (1999).

While there are no cases on point in North Carolina regarding whether the use of a GPS tracking device could constitute a trespass, given the U.S. Supreme Court’s decision in Jones and North Carolina jurisprudence, it is our belief that such a claim would be valid in North Carolina by an owner of the vehicle against an individual (and their agents) who planted the device and monitored the data.  Some lawyers have expressed their view that since there are “no prohibitions on the use of such devices”  that they must be legal.  Follow this advice at your own risk!  Relying on bad legal advice, even from your lawyer, is not a defense in North Carolina.

Another possible claim against a person who puts a GPS tracking device on your vehicle under North Carolina law is invasion of privacy.  To prove invasion of privacy in North Carolina, you have to show an intentional intrusion upon the solitude or seclusion of another or his private affairs or concerns and that the intrusion would have been highly offensive to a reasonable person.  See Miller v. Brooks, 123 N.C.App. 20 (1996).   Under NC law, defendants have been found liable for invasion of privacy for such conduct as eavesdropping, wiretapping, peering through windows, persistent telephoning, unauthorized prying into one’s bank account and opening the mail of another.  This too could be a valid claim against an individual for placing a GPS tracking device on your vehicle.

There are additional questions that a court may ultimately be asked to answer including:

1. What if the device is attached to a vehicle while it is parked in public and not on private property?  Our opinion: It would still be a trespass to chattels and possibly an invasion of privacy unless the device is attached by the owner of the vehicle or his or her agent.
2. Does it matter whether the device is used on a vehicle to monitor his wife or her husband?  Our opinion is that it is not a trespass for the device to be used on marital property before the parties date of separation and it is not likely to be considered an invasion of privacy.  However, the answer is simply “unknown”.
3. If used to monitor a spouse, does it matter whether the device is used before date of separation or after?  We think the answer is absolutely.  In the Miller v. Brooks case, Court of Appeals found that wife’s conduct of having a hidden video camera installed in the former marital home after date of separation constituted invasion of privacy.
4. Can an employer use a GPS device to monitor his or her employees without their knowledge or consent?  Employers generally have a right to monitor employees use of employer owned equipment.  If the vehicle is company owned, the employer likely has a right to install a GPS device.  However, it would be good practice to notify the employees in writing of the company practice to monitor company owned vehicles with a GPS device and what data is collected to avoid claims of invasion of privacy.

Until a case with these facts reaches the North Carolina Court of Appeals, the simple answer is that we don’t know whether it is legal or not.

The article notes that the veracity of the story was not verified.  In it, the husband claims he loaded the app, “Find My Friends,” to his wife’s iPhone without her knowledge or consent. The application uses the iPhone’s built-in Global Positioning System to broadcast its location to a selected group of friends.  By enabling the GPS broadcast without his wife’s knowledge or consent, had he been in North Carolina, it could conceivably be a breach of privacy actionable under tort law (although there are no current appellate cases on this issue in North Carolina).

We expect these type of technology issues — especially whether it is an invasion of privacy — to become more prevalent in family law cases over the next few years.

Read the full story at Yahoo News.

An introduction to spying

If you must spy on your spouse, educate yourself on the laws of your jurisdiction and the federal laws on the topic; knowing when you are under the purview of the state, federal, or even common law is extremely important as it vastly affects how and to what extent you may spy on your spouse. The safest course of action is to seek legal advice from a licensed attorney before you spy. And hire a licensed and respected private investigator instead of conducting your own surveillance.

The law treats government spying and individual spying differently.

There are differences in the law’s treatment of surveillance based on who is doing it. Generally, the law is more restrictive regarding government and law enforcement spying than then it is when private individuals are doing the surveillance and even less restrictive for parents monitoring their minor children. However, many boundaries still exist regarding private individuals, and some spying could leave individuals open to being sued civilly or charged criminally in some circumstances.

Criminally, several charges could be levied against someone for spying on another person, including trespassing or federal wiretapping charges. These are serious crimes and one could face imprisonment and be required to make financial restitution. Tortious Invasion of Privacy and other Civil liability could apply.

Tortious Invasion of Privacy by Intrusion

North Carolina recognizes an action based on an invasion of privacy by intrusion. Invasion of privacy by intrusion is defined as: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” North Carolina does not recognize a cause of action for the invasion of privacy by disclosure of private facts or invasion of privacy by placing a plaintiff in a false light before the public.

Specific examples of intrusion include: “physically invading a person’s home or other private place, eavesdropping by wiretapping or microphones, peering through windows, persistent telephoning, unauthorized prying into a bank account, and opening personal mail of another.”

In other words, certain areas may be off-limits to even a spouse. For instance, a video camera installed in a bathroom may be tortious as a reasonable person would likely find it “highly offensive” even in the context of a marriage. No cameras or audio recorders should be employed in a toilet area, shower area, or bedroom area of a spouse.

Interception of oral communications and electronic communications

In North Carolina N.C. Gen Stat. § 15A-287(1)(a) states:

1. Except as otherwise specifically provided in this Article, a person is guilty of a Class H felony if, without the consent of at least one party to the communication, the person:

1. Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.

2. Willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:

1. The device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communications; or

2. The device transmits communications by radio, or interferes with the transmission of such communications.

2. Willfully discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through violation of this Article; or

3. Willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this Article.

Consent by at least one party to a conversation is required before recording a conversation between people. In North Carolina, if you are a party to the conversation, you may consent to your conversation being recorded but you cannot record a conversation to which you are not a participant. Therefore, you cannot legally record a call between your spouse and another person without at least one of them consenting to the recording—even if the conversation is between your spouse and your child. If one person is in another state and not in North Carolina, it may be illegal to record the conversation. Many jurisdictions, including North Carolina, have recognized that parents may vicariously consent on behalf of their minor children to the interception of their conversations. A custodial parent may vicariously consent to the recording of a minor child’s conversations, as long as the parent has a good faith, objectively reasonable belief that the interception of the conversations are necessary and in the best interest of the child. The doctrine of vicarious consent has been applied to parental eavesdropping on conversations between the other parent and their minor children and third parties such as a babysitter or nanny. You must use extreme caution before taping any conversation and we strongly recommend you speak with a licensed attorney to fully understand your rights and responsibilities.

Silent covert video surveillance

Only oral communications are covered by N.C. Gen Stat. § 15A-287(1)(a), and thus, videotaping of a spouse without an audio recording would not be a violation of state and federal wiretapping laws.

Video surveillance by private parties, does not implicate the Federal Constitution’s Fourth Amendment. In, State v. Diaz, 308 N.J. Super. 504, 706 A.2d 264 (App. Div. 1998), it was held that the actions of a child’s parents in contracting with a private company to install audio-video surveillance equipment in their home, for the purpose of observing a babysitter who they suspected of abusing the child, did not implicate the federal or state constitutions, because the allegedly unlawful videotaping was performed by private individuals and not by the government or its agents and the parents vicariously consented to the audio capture on behalf of their child. The denial of the babysitter’s motion to suppress the videotape from evidence, at her trial for aggravated assault and endangering the welfare of a child, was affirmed.

The acquisition of an image is not an interception of a wire or oral communication because the contents of a conversation are not captured. Video surveillance is not the interception of an electronic communication because there has been no interception of the image while it is being transmitted. The audio portion of a videotape is an oral communication and would be subject to the rules discussed above.

However, remember the rules stated above regarding tortious invasion of privacy. Placing a video camera in a private place like the bedroom or the bathroom could still expose you to civil liability.

GPS tracking of a private vehicle

Electronic tracking devices do not “intercept” contents of any wire or aural communication and because the vehicle is traveling on public roads in view of everyone who passes, there is likely no intrusion upon the solitude or seclusion of another or his private affairs or concerns and it also likely not to be offensive to a reasonable person. If the vehicle is titled in your name and it has not been sequestered by contract or court order in favor of your spouse, there appears to be little concern over placing a GPS tracker on the vehicle. Placing such a device on a vehicle that you do not have an ownership interest in, however, could be a trespass to chattels and you could be liable in tort for financial damages. Always consult a licensed attorney before taking any action.

Email & the Internet

If you are still living with your spouse and you are not separated, then when considering other forms of communications such as email communications and the like, the key is: whether your spouse has an expectation of privacy that could be invaded. Even if your spouse previously gave you their email password or computer password, they may still have an expectation of privacy and violation of that privacy could open you up to criminal and/or civil penalties. Ask yourself; for what purpose did my spouse give me his or her password? Do not exceed the scope of that purpose. The use of certain programs like spyware, keystroke recorders may be permissible or illegal depending on the technology employed by the software and whether you continue to live with your spouse.

Once separated, access to your spouse’s email without permission is likely a violation of federal and state wiretapping laws even if you had permission prior to the separation.

Conclusion

The most important thing to remember is that any surveillance must be legal, reasonable, and not overly intrusive. The status of the parties (e.g., separated or not, minor child, or spouse) and the facts surrounding the type of surveillance will affect the legality and permissibility of it. Criminal penalties including jail time and civil financial penalties may be assessed for illegal and improper activities. Some surveillance may be legally conducted by a licensed private investigator for which an unlicensed individual could face sanctions. This area is fraught with such significant and serious risk both financially and to your very liberty, that you absolutely must develop a plan with your attorney before taking any action.

Author’s Note: This article is in no way meant to be a comprehensive analysis of privacy law or surveillance of a spouse. The purpose of this article is to impress on the non-lawyer who may read it, the importance of considering all aspects and consequences of their actions and to outline generally some commonly unknown consequences of such for those who may be unaware. The reader interested in learning more should contact their attorney or perform additional research as more than anything this article should promote the commencement of a thorough discussion of these matters.

Litigation involving divorce, child custody, property distribution, alimony and other family law claims is deeply personal. The pleadings (lay persons sometimes call them “court papers”) filed in the courthouse are required to contain the full legal name and address of the Plaintiff and Defendant. The pleadings must also contain the date of birth of each child and until a few years ago, the social security number of litigants and children. The scary part is that these records are public records open to inspection by anyone who walks into the Clerk of Court’s office for any county in the State of North Carolina.

Families who resolved their family law dispute out of court through a Separation Agreement and Property Settlement (SAPS) often record these agreements with the Register of Deeds in the county in which they reside. These SAPS often include personal information as well and until recently such information as full legal name, address, social security number and date of birth. These records, including actual images, are often available online.

According to @JavelinStrategy, a company that has been measuring identity theft since 2004, identity theft increased in 2008 to 9.9 million adults and cost Americans an estimated $48 billion. Their study found that stolen wallets and physical documents accounted for 43% of identity theft.

If you have ever been divorced, involved in a child custody case, or a child support case, such documents containing your personal information may very well be on display at the county courthouse or in the county Register of Deeds.

In 2005, the North Carolina State Legislature enacted the Identity Theft Protection Act, N.C. GEN. STAT. § 132-1.10, in an effort to protect North Carolinians from identity theft. The act:

1. Placed restrictions on the use of social security numbers by businesses;
2. Required businesses to securely destroy business records containing personal information;
3. Allowed consumers to place a security freeze on their credit report;
4. Required consumers be notified in the event of a security breach;
5. Expanded criminal prosecution of identity theft; and
6. Enacted a requirement that the Clerk of Court and Register of Deeds remove personal information upon request.

The legislation has been expanded since it was enacted in 2005 to provide additional protections. In fact, Governor Beverly E. Purdue just signed into law an act that will become effective 1 October 2009 that further enhances the protections. The new law allows the Clerk of Court or Register of Deeds to remove social security numbers and driver’s license numbers without a request.

While there are a few statutes that still require disclosure of social security number, driver’s license and other identifying information in pleadings filed with the Court, many uses are now prohibited. Any person who prepares or files a document recorded with the Register of Deeds or filed with the Clerk of Court can be subjected to a $500 fine.

The Identity Theft Protection Act provides a mechanism for you to have your personal information removed from the public record. Part (f) of the State law allows that:

“Any person has the right to request that a register of deeds or clerk of court remove, from an image or copy of an official record placed on a register of deeds’ or court’s Internet Web site available to the general public or an Internet Web site available to the general public used by a register of deeds or court to display public records by the register of deeds or clerk of court, the person’s social security, employer taxpayer identification, drivers license, state identification, passport, checking account, savings account, credit card, or debit card number, or personal identification (PIN) code or passwords contained in that official record. The request must be made in writing, legibly signed by the requester, and delivered by mail, facsimile, or electronic transmission, or delivered in person to the register of deeds or clerk of court. The request must specify the personal information to be redacted, information that identifies the document that contains the personal information and unique information that identifies the location within the document that contains the social security, employer taxpayer identification, drivers license, state identification, passport, checking account, savings account, credit card, or debit card number, or personal identification (PIN) code or passwords to be redacted. The request for redaction shall be considered a public record with access restricted to the register of deeds, the clerk of court, their staff, or upon order of the court.”

No fee may be charged by the Clerk of Court or Register of Deeds for redacting the pleadings filed with the Court and recorded with the Register of Deeds.

However, any person who requests a redaction without proper authority to do so shall be guilty of an infraction, punishable by a fine not to exceed five hundred dollars ($500.00) for each violation.

Our firm continues to see documents filed with the Court—especially in child custody, child support, and property division cases—where personal information is included. We are advising all of our clients to request that their personal information be removed from the public record to better safeguard their identity. We are also asking judges to place medical records and other evidence introduce at trial under seal to keep it private.

We believe, at minimum, that you should take the following steps:

1. Check the records published about you by the Register of Deeds in the county in which you reside or have resided. Generally you will want to examine any recorded Separation Agreement & Property Settlement (SAPS), Deed, Deed of Trust, Power of Attorney, Assumed Name or other similar document. Links to all North Carolina’s Register of Deeds offices can be found at The North Carolina Register of Deeds Association;
2. Check the records at the Courthouse in the county where you were involved with any litigation.
3. If you find information that should be redacted, send a written request specifying what information should be redacted and identify the specific documents where the personal information is displayed. You may use this Request to Redact Personal Information to ask that the Clerk Redact your Personal Information.

We hope this helps North Carolinians better understand their privacy rights in family law litigation. We have helped a number of clients redact personal information. Sometimes litigation was necessary to effect the redaction. If you have specific questions, please let us know through our Virtual Law Office.

Published September 3, 2009 | Authored by Mark Spencer Williams, Esq. and Managing Member, Rice Law, PLLC

*Author’s Note: This article is intended to raise awareness of the problems of identity theft associated with family law and divorce matters. It is not intended to be a comprehensive analysis of the steps you should take to protect your identity. We strongly encourage you to consult with a licensed attorney in the State of North Carolina who routinely handles family law and divorce matters.