By Adam T. Kronfeld of Duff & Kronfeld, P.C. posted in About the Law on Thursday, August 4, 2016.
In recent years, with the proliferation of smartphones and GPS technology, it has become increasingly common for individuals to discover that a spouse has been surreptitiously tracking their comings and goings using electronic means. As usually happens, it has taken the law some time to catch up with technology and establish in what situations such tracking is not acceptable – or legal.
In 2013, Virginia enacted a statute making it a misdemeanor to install or place an electronic tracking device “through intentionally deceptive means and without consent” and use that device “to track the location of any person.” The law provides understandable exceptions for law enforcement, owners of “fleet vehicles” (Enterprise, U-Haul, etc.), or, notably, the parent of a minor when they are tracking the minor or a “caretaker” of a minor.
This law was just recently put to the test in Fairfax County. In that case, a father placed a tracking device on the mother’s vehicle, and was prosecuted after she discovered it. In his defense, the father claimed that he was only trying to track his daughter’s whereabouts. The defense predictably failed, and the father was convicted. The Court ruled that placing the tracker on the mother’s car, as opposed to (for example) hiding it in the child’s belongings, had the obvious effect of tracking the mother at times when the child was not with her. Additionally, the mother was not a mere “caretaker” for the child, like a babysitter, but was the child’s other biological parent.
The take away from this case is two-fold: first, an individual who electronically tracks the whereabouts of any person without consent takes a considerable risk that they are committing a crime. Second, the law surrounding these circumstances is still developing, and the results could vary widely bared on particular facts. For example, what if the parents were married and the mother had been driving the family vehicle? Or a vehicle titled only in the father’s name? Can a private investigator hired by a party conduct this kind of surveillance? What if there were a factory-installed device in the vehicle that the father had accessed to ascertain where the mother had gone? And do any of those distinctions matter at all?
If you have found a tracking device on your vehicle, or if you have previously used and are concerned about the potential consequences, you should speak to an experienced lawyer at The Duff Law Firm to assess your available options.