In what may be a case of first impression, the New Jersey Appellate Division ruled, on July 7, 2011, that the tort of invasion of privacy does not necessarily exist whenever a plaintiff alleges surreptitious location tracking by a defendant. Specifically, the court ruled:
We hold that the placement of a GPS device in plaintiff’s vehicle without his knowledge, but in the absence of evidence that he drove the vehicle into a private or secluded location that was out of public view and in which he had a legitimate expectation of privacy, does not constitute the tort of invasion of privacy.
The facts of the case are likely not that uncommon. A woman hired an investigator to track her husband (who she suspected of infidelity) and the investigator suggested she place a GPS tracking device in the glove compartment of the car shared with her husband. After related divorce proceedings were concluded, the husband sued the investigator in state court. In a summary judgment motion, the husband’s privacy claim against the investigator was dismissed by the trial court. In affirming, the court reasoned there was “no direct evidence in [the] record to establish that during the approximately forty days the GPS device was in the Denali glove compartment the device captured a movement of plaintiff into a secluded location that was not in public view, and, if so, that such information was passed along by Mrs. Villanova to defendants.” Id. at 11.
The court certainly took pains to limit the impact of its decision by pointing out that if the car did travel to “secluded locations” there would be more of an issue with the conduct of defendants. It is hard to envision, however, situations where a person traveling in a car would ever have much of an expectation of privacy sufficient to trigger an invasion of privacy claim. See Id. at 16 (“‘A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his [or her] movements from one place to another.'”) (quoting United States v. Knotts, 460 U.S. 276, 281 (1983)).
In seeking to avoid dismissal, the plaintiff conjectured that secluded places might include “a private parking garage, an impound yard, or a stretch of a lonely beach.” Id. at 6. In strongly worded dicta, the court left the door open to such an argument: “Although these hypothetical circumstances might well exist, there is nothing in this record to suggest that any such incident ever occurred during the time the GPS device was in place.” Id.
As well, the court pointed out several times that the GPS data was likely not provided to the defendants. This factor obviously undercuts by some measure the impact of the decision. For example, if the same general set of facts were presented in a new case but the data was actually sent to numerous third parties, would a future court have more leeway in allowing a privacy claim to proceed? Did the court inadvertently create a test whereby some allegations regarding “secluded excursions” coupled with evidence of third party release of the location data is enough to withstand a motion for summary judgment?
Although it remains to be seen how persuasive this decision will be outside of New Jersey, it is nevertheless helpful given how unsettled location tracking remains as an area of privacy and constitutional law. Further guidance, however, may be right around the corner given a recent privacy class action based on location tracking and the fact that, on June 27, 2011, the United States Supreme Court agreed to hear United States v. Jones — actually directing the parties to brief and argue the following question: “Whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.”