Avrohom Kram

Technology is forever changing our world. While society continues to incorporate innovations into daily life, the law is not always so quick to follow. The questions raised by new technology often do not fit neatly in legal doctrines that have served courts well for hundreds of years. Legislatures and agencies are often slow to provide remedies and even when they do, they often do not fully achieve the results they seek.

One particularly challenging area is privacy rights when devices can easily monitor our every move in ways previously thought impossible. Recently tracking devices have been used to gather data by opposing parties in litigation without consent. This has occurred often in business litigation and family law contexts.

Finding out that a soon to be ex-spouse has been tracking your every move by way of a device attached to a personal vehicle can be very unnerving. Often parties going through a divorce feel vulnerable. Tensions may be high and concerns for safety may also implicated. Unfortunately, the law does not offer the easy solutions one might expect.

The most obvious place to turn would the wrongful act of invasion of privacy. Indiana recognizes four forms of invasion of privacy, including “the unreasonable intrusion upon the seclusion of another.” For the action to be considered “unreasonable” Indiana, courts have held that “the intrusion must be something that would be offensive or objectionable to a reasonable person.” It is irrelevant that the injured party finds the behavior objectionable. Invasion of privacy only occurs if the “reasonable person,” an ordinary person, would find it the actions to be “offensive” or “objectionable.”

The Indiana Supreme Court has narrowly construed invasion of privacy by intrusion. In Cullison v. Medley, 570 N.E.2d 27 (Ind. 1991), the Court required actual invasion of the physical space. The offensive act must occur in the private space of the injured party. The Indiana Court of Appeals has used this distinction to explain why a camera focused on the front door and driveway of a home is not “invasion,” but a camera that records the interior of the home could be considered an intrusion.

Additionally, the harm must have occurred in a place where the injured party had an expectation of privacy. If there is no such expectation, then the fact that the harm occurred by way of an invasion is irrelevant. As the Indiana Court of Appeals explained, “[a] defendant may be liable for intrusion into private affairs if he or she has engaged in conduct that resembles watching, spying, prying, besetting, or overhearing, and the intrusion has invaded an area which one normally expects will be free from exposure to the defendant.”

The expectation of privacy is pretty obvious when someone is inside their home with the curtains drawn, but a GPS tracking device is not quite so clear. Are a person’s movements in their vehicle a “private space”, and is there an expectation of privacy?

Indiana courts have not yet addressed these questions, but the decisions in other jurisdictions provide some perspective on how Indiana might.

  • South Dakota, New Jersey and North Carolina: There is no invasion of privacy for a GPS tracking device installed on a vehicle. Travel by the person could be viewed by anyone.
  • Maryland: Expectation of privacy is possible even in a public space.

Only a handful of states have laws making it illegal to place unauthorized tracking devices. Indiana has no such law. However, the states that have made it illegal have only done so in limited circumstances and many cases fall outside the scope of these laws. That said, there are preventative measures that may be taken through the court to provide adequate protection from the invasive behavior of a soon-to-be ex-spouse or former business partner when there is litigation pending.

This article is for information purposes only and is not intended to constitute legal advice.