Every day we are bombarded by advertisers with the latest and hottest “must have" technology product. We are told by Apple, Samsung, and a host of other vendors that without their “latest" products we are falling behind and out of style. Increasingly, these new technologies are being used as forms of evidence in legal proceedings. One of the most recent “advancements" to take a turn before the bar is Global Positioning System (GPS) data. GPS and other technologies are here to stay but everyone should be aware of the risks they pose and their potential to harm you in a divorce, child custody, or other family law proceeding.
Technology & The Supreme Court
The issues surrounding technology certainly extend beyond just family law. It is a burgeoning issue that has already made it to the highest Court in the land. The Supreme Court of the United States was recently called upon to address the irresistible march of technology and the potential consequences of its misuse in United States v. Antoine Jones. In a nutshell the issue before the Court in Jones was our government’s unlimited ability to monitor our daily activities and what many consider our basic right to privacy through the use of GPS.
GPS is found on virtually every smart phone currently on the market. Stand alone GPS navigation systems are still in wide use as well and not just in vehicles. It is a commonly used tool that is part of almost all of our lives. What makes this technology of interest to the Supreme Court, and for purposes of this paper, people facing a divorce, is its use in conducting surveillance.
Antoine Jones was the owner and operator of a nightclub in the District of Columbia. He was suspected of having involvement in drug trafficking. He became the target of an investigation by a joint FBI and D.C. Police task force and was placed under visual surveillance. The task force applied for and was granted a warrant by the United States District Court for the District of Columbia to attach a GPS device to Jones’ wife’s SUV. The device was in effect a GPS enabled cell phone with an extended life battery placed in a heavy duty plastic box with a strong magnet on it. The magnet equipped box was then attached to the vehicle, typically under the bumper. The warrant required that the device be attached within 10 days of its issuance and within the confines of the District of Columbia.
The GPS device was attached the day after the warrant had expired and in the State of Maryland. The warrant was therefore invalid and, accordingly, no longer sanctioned by the Courts which, in this situation, are charged with regulating the ability and methods of local, state and federal governments to conduct searches and investigations of its citizens. The consequence of a warrantless search is that any evidence it produces cannot be used by the government in criminal prosecutions. Relying in part on the data produced by the GPS device, the government successfully prosecuted Jones before a jury in the District of Columbia for conspiracy to possess and distribute 97 kilograms of cocaine. He was sentenced to life in prison.
Jones appealed the conviction on the grounds that the government’s GPS generated evidence had been obtained without a warrant and should therefore not have been admitted. The United States Court of Appeals for the District of Columbia agreed and threw out the conviction on that basis. The government appealed to the Supreme Court of the United States.
A very clearly alarmed Court unanimously affirmed the Court of Appeals ruling that the use of the GPS without a warrant violated Jones’ Fourth Amendment rights. Although the Justices all agreed on the ultimate outcome, the reasoning they employed was very much at odds.
Justice Scalia, writing for a majority, focused on the government’s physical intrusion into Mr. Jones’ private property as the basis for requiring the warrant. In effect the opinion is based on the notion that when the government attached the GPS to the exterior of Jones’ wife’s car, it was physically trespassing.
Justice Alito joined by Justices Ginsburg, Bryer and Kagan and Justice Sotomayor in her own concurrence, dismissed the majority’s rationale as in effect outdated and too dependent on antiquated concepts of property law. They instead focused on the very real dangers GPS and technology advances in general can pose to our basic civil liberties. Focusing instead on our expectations of privacy and how they have changed with the development of technology, Justice Sotomayor sounded the alarm bell:
…(“Disclosed in [GPS] data…will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on"). The Government can store such records and efficiently mine them for information years into the future. Pineda-Moreno, 617 F.3d, at 1124 (opinion of Kozinski, C.J.). And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility."
In other words, there is a very real danger in allowing the government, or anyone for that matter, to monitor all of our movements with such ease and at minimal cost without any oversight by the Courts.
GPS and Divorce or Family Law Implications
As with every rule, there are exceptions. The Fourth Amendment and its protections apply only to the government and not private citizens. Private citizens are, within limits, free to utilize GPS devices to track the comings and goings of other private citizens, such as a spouse that one suspects is doing something they ought not to be. GPS surveillance of this variety is not subject to court oversight or a reasonable exercise of restraint.
It is not hard to imagine just how useful these devices can be to private investigators or individuals attempting to make a case for adultery. Further, as Justice Sotomayor pointed out, information can be gathered through the use of GPS that might prove useful in a custody case, such as trips to a psychiatrist, or strip club or …… Costly surveillance that once had to be conducted by a “gum shoe" (think Humphrey Bogart in the Maltese Falcon or Tom Selleck in Magnum P.I.) is no longer necessary. Now, anybody with a PC, tablet or even smartphone can slip a magnetized box under the bumper of a car and inexpensively generate a data stream that would put our heroes from a more “romantic" era to shame.
An obviously troubled, if not alarmed, Justice Alito invited the various state legislatures to craft laws regulating the use of GPS devices but, to date, no state has taken up the gauntlet to regulate the use of GPS by anyone other than the government in the context of criminal investigations. To date, the State of Maryland has taken no action to regulate the use of GPS. The District of Columbia has likewise not yet taken any action to curtail the use of GPS by private citizens. The issue has been raised in other state courts, even in the context of a divorce. Ultimately, however, the courts have not taken any action that would impede use of GPS as a tracking or surveillance tool.
The law has trouble keeping up with technology. The courts will continue to struggle with the incredibly rapid proliferation of technology and its application in our daily lives. (This technology lag extends outside of electronics technology too. Courts are similarly vexed by medical technology as we discuss in a previous article on Assisted Reproductive Technology.) Once the courts or the legislatures fully address use of GPS we will almost certainly be immersed in the next set of issues raised by GPS technology. One likely and very thorny area will be the ability to convert someone’s cell phone into a tracking device, a service which is available through some companies already.
Users Beware
We frequently advise clients on their use of technology as they enter into a family law matter. Unfortunately, by the time most consult an attorney the relationship or issue in question has deteriorated enough that our admonishments may be too late. If you are in a situation where legal proceedings are possible, be aware of how you use technology. GPS is only one front in the wider technology war. Social networking, email, and other products create an electronic evidence trail that will be used in a family law proceeding.
Without even getting into the issues surrounding our private use of the internet and what gathering of that information might lead to, cell phone companies including Verizon and Google already have access to vast amounts of information about our private lives every time we consent to the use of their GPS systems to find directions to a child’s basketball practice or the local strip club, as the case may be. When we use these devices or other products and services we voluntarily sacrifice our privacy for convenience. We must also understand that even when we don’t voluntarily offer ourselves up for data collection, the technology can be easily used by others to monitor our daily activities to an unprecedented level. The technology to which we are so addicted can be highly effective tools in the right or, depending on your point of view, the wrong hands when marriages are breaking down and moving towards a potential divorce. So at the risk of stating the obvious, on the one hand, if you are looking to find out what your spouse is really up to, then GPS can be a gold mine of information; on the other, if you might have reasons for protecting your privacy even from your spouse, you may want to give some thought to checking under the bumper for any magnetized boxes containing a cell phone.
