New Jersey Court Finds Use Of GPS To Track Cheating Spouse Is Not An Invasion Of Privacy

We live in an age when our every movement seems to be tracked by cell phones, E-Z pass, surveillance cameras and even digital photographs to the point where you can almost hear the 1980's hit "Somebody's Watching Me" playing in the background. A recent New Jersey court decision has now addressed the use of such technology by one spouse who suspects the other of infidelity.

The New Jersey Appellate Division held that a private investigator did not invade the plaintiff's privacy by instructing his wife to place a global positioning system ("GPS") unit in the jointly owned vehicle her husband regularly drove. The GPS device ultimately allowed the investigator to track the location of the plaintiff where he was observed driving with a female passenger who was not his wife. Thereafter, the plaintiff's wife commenced divorce proceedings. Following the divorce, the plaintiff sued the private investigator for an invasion of his privacy. The trial court dismissed the case on a motion for summary judgment finding that Plaintiff's Complaint had no merit under the controlling law.

In Kenneth R. Villanova v. Innovative Investigations, Inc. and Richard Leonard, 2011 WL 2638134, the New Jersey Appellate Division affirmed the trial court decision dimissing the plaintiff's case. Specifically, the Appellate Division held that the private investigator did not commit an "intrusion on plaintiff's physicial solitude or seclusion, as by invading his or her home, illegally searching, eavesdropping, or prying into personal affairs" as there was no evidence to suggest that the GPS device did anything other than track his vehicle's movement on public streets and or other areas in plain view. "There is nothing in his [private investigator's] report that could 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." In that regard, the court explained that just as there is no liability for invasion of privacy by observing or even photographing someone walking in public, a "person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."

Interestingly, the plaintiff had also asserted an identical claim of invasion of privacy against his ex-wife in the divorce case, but he later dropped it as part of the settlement of that matter. Regardless, in the absence of additional evidence, the Appellate Division's ruling would presumably have also barred the plaintiff's direct claim against his wife.

Suspicious spouses, however, might want to think twice before running out to the electronics store as this case does not create absolute immunity for the use of GPS tracking in this context. Under the court's rationale, the use of a GPS device to secretly track another person's vehicle to a private and secluded location might still arguably constitute an invasion of privacy.