Tracking Technology and Divorce Litigation

Developments in technology over the last few decades have made it possible to do things previous generations never imagined. Want to know why your teenager is late coming home, and whether you should worry? Check their location on your phone. Wonder which airport your lost luggage went to? If you put an AirTag in your suitcase, you can track it precisely, even halfway across the world. When it comes to tracking technology and divorce, there is also the potential to gather lots of useful information—and the potential for risk in doing so.

The law has always struggled to keep up with the use of the technology it regulates, and using GPS trackers in divorce is no exception. By the time states manage to identify an issue that needs to be regulated, advances in technology often give rise to a new issue. What are the laws in South Carolina regarding tracking technology and divorce? Is it legal to use a GPS tracker in divorce?

Why Do People Use Tracking Devices in Divorce?

In the period of time leading up to a divorce, trust between spouses is often at a low. One of the reasons for that is suspicion of infidelity or some other betrayal. A suspicious spouse may not come out and ask the other spouse if they’re cheating, of course. A cheating spouse is likely to deny any wrongdoing, perhaps even to try to make the suspicious spouse feel guilty or crazy for questioning them.

In the past, the only realistic options available to a suspicious spouse were to hire a private investigator to tail the other spouse, or to follow the other spouse themselves. The former option gets expensive, and the latter is impractical; you can’t follow your spouse everywhere.

The relatively recent development of AirTags and other GPS trackers was a game changer for people who wanted to have an idea where a spouse was and what they were doing. Suddenly, tracking someone else’s location at all times was not only possible, but easy and inexpensive, not to mention reliable. A subject may be able to dodge a private investigator who is following them, but not a tracking device that they don’t even know is in their purse, pocket, backpack or car. Because AirTags and other GPS trackers are so small, unobtrusive, and easy to use, they have great utility—and also the potential to violate people’s privacy rights.

If you think your spouse is being unfaithful or keeping other secrets from you, it is understandable that you would want answers right away, and preferably without having to confess your fears to anyone else. Using a GPS tracker on your spouse without their knowledge might get you those answers, but it might also get you in trouble.

South Carolina Law Regarding Using GPS Trackers in Divorce

South Carolina has strict laws about the interception of electronic communications—but, according to South Carolina Code of Laws §17-30-15(13)(c), electronic communication excludes “any communication from an electronic or mechanical device which permits the tracking of the movement of a person or an object.” In other words, South Carolina law specifically excluded tracking devices from the definition of electronic communications. However, that doesn’t mean that the law permits you to track your spouses without their knowledge and consent, or without suffering consequences.

South Carolina law has permitted a person to place a tracking device on a spouse’s vehicle under certain limited conditions. The device had to be a “slap and go” type tracker. The person placing it could not trespass on property in order to place the tracker, and the tracker could not alter the vehicle in any way, nor use its power supply.

However, legislation has been introduced in the South Carolina General Assembly to amend the statutes to legally define the term “tracking device,” to create an offense of “unlawful tracking,” and to establish both penalties for and exceptions to that offense. That means that not only could information gained through a GPS tracker be inadmissible in a divorce, the person placing the tracker could be subject to criminal penalties.

What Should You Do if You Suspect Your Spouse of Cheating?

If you suspect your spouse of cheating or other marital misconduct, proof of your suspicions would be relevant to more than your decision to divorce. Proof of infidelity—including dating while separated—could affect issues in your divorce such as whether alimony is awarded. But taking the investigation into your own hands is not the way to go, especially while the law is evolving.

Instead, you should consult with an experienced South Carolina divorce attorney. Your attorney will listen to your concerns and can advise you of the best ways to document your suspicions within the bounds of the law. With an attorney’s guidance, any information gathered will be able to be used to your advantage in divorce negotiations or litigation.

To learn more about the current state of the law in South Carolina regarding tracking technology and divorce, contact Brinkley Law Firm LLC to schedule a consultation.