Can I Track My Spouse During My Divorce?

If you think that it’s a good idea to track your spouse, think again. Electronic spying and tracking implicate state and federal law protections, and there are both civil and criminal laws prohibiting certain forms of spying on spouses. Michigan is a two-party consent state, with an exception for recordings by conversation participants. In addition to Michigan’s eavesdropping statute, electronic spying may also involve Michigan laws regarding:

1. invasion of privacy;
2. infliction of emotional distress;
3. stalking; and
4. trespass.

Federal statutes limiting electronic spying include, but are not limited to the:

1. Computer Fraud and Abuse Act;
2. Electronic Communications Privacy Act;
3. Stored Communications Act; and
4. Federal Wiretap Act.  

The Legality of Electronic Spying and Tracking of Spouses During Divorce Cases

In Michigan, installing a tracking device on a motor vehicle could be a criminal offense that results in jail time, probation or fines. Michigan law defines a tracking device as “any electronic device that is designed or intended to be used to track the location of a motor vehicle regardless of whether that information is recorded.” As defined, tracking devices include, but are not limited to, (1) Radio Frequency Identification (“RFID”) tracking, (2) Global Position System (“GPS”) tracking, (3) internet tracking, (4) radio tracking, (5) satellite tracking, (6) cell phone triangulation tracking, etc. Under these rules, the use of the “Find My iPhone” iOS application could arguably violate this law. 

Certain conduct and individuals are exempt from this statute, and it does not prohibit the installations, uses or services of any device:

• Providing vehicle tracking for purposes of providing mechanical, operational, directional, navigation, weather or traffic information to the operator of the vehicle such as OnStar, MCL 750.539l(2)(a); 
• Providing emergency assistance to the operator or passengers of the vehicle under the terms and conditions of a subscription service, including any trial period of that subscription service, MCL 750.539l(2)(b);
• Providing missing vehicle assistance for the benefit of the owner or operator of the vehicle, MCL 750.539l(2)(c);
• Providing diagnostic services regarding the mechanical operation of a vehicle under the terms and conditions of a subscription service, including any trial period of the subscription service. MCL 750.539l(2)(d);
• Providing the lessee of the vehicle with clear notice that the vehicle may be tracked, MCL 750.539l(2)(e);
• Installed or used by the parent or guardian of a minor on any vehicle owned or leased by that parent or guardian or the minor, and operated by the minor, MCL 750.539l(2)(f);
• By a police officer while lawfully performing his or her duties as a police officer, MCL 750.539l(2)(g);
• By a court officer appointed to serve civil process upon a defendant, while lawfully performing his or her duties as a court officer, MCL 750.539l(2)(h);
• By a person lawfully performing his or her duties as a bail agent or as an employee or contractor of that bail agent lawfully performing his or her duties as an employee or contractor of a bail agent, MCL 750.539l(2)(i); and
• By a professional investigator licensed by the State of Michigan, MCL 750.539l(2)(j).

Even considering the conduct exempted by the statute, there are still certain consequences and/or limitations. For example, a professional investigator is limited to a tracking device to perform specific duties, and they lose immunity if certain conditions are met. 

Anyone with concerns about the legality of tracking technology or who may be a victim of improper spying should consult with a lawyer who has had the opportunity to consider all facts involved in their specific case.  If you have any questions, please contact a member of Varnum’s Family Law Practice Team.