I Spy With My Little—gps Tracking Device: Why Georgia Should Look to the United Kingdom's Domestic Violence Laws to Deter Innovative Abuses of Technology

• Publication year: 2022

I Spy with My Little—GPS Tracking Device: Why Georgia Should Look to the United Kingdom's Domestic Violence Laws to Deter Innovative Abuses of Technology

Tyerus Skala^*

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TABLE OF CONTENTS

I. INTRODUCTION.....................................................................................491

II. BACKGROUND.....................................................................................492

A. American Notions of Privacy.................................................493
B. How States Have Dealt with the Use of GPS Tracking Devices .............................................................................................495
C. Notions of Privacy in Georgia...............................................496
D. Notions of Privacy in the United Kingdom.............................498

III. ANALYSIS...........................................................................................499

A. Excessive Specific Intent Required in Georgia Privacy and Domestic Abuse Laws...........................................................499
B. British Statutes and Extended Judicial Deference..................501
C. Broader Legislative Action in the United Kingdom................502

IV. CONCLUSION......................................................................................502

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I. INTRODUCTION

The advent of new technology presents unfamiliar and increasingly complex challenges to the law. Legislative bodies are unfortunately tasked with keeping up with the blaze of new technology and in some instances struggle to match the pace of technology.¹ Understandably, some uses of technology slip through the cracks, and the law must play catch up.² Although these gaps in the law are often identified and handled by judges amidst ongoing litigation, other legal professionals are advocating for an emphasis on the proactive revision of the law through innovation.³ However, because judges are sometimes just as uncertain as litigants about how new technology affects gaps in the law, a disparate divide exists between ever-advancing technology and our legal system's delayed response.⁴

Complexity increases when a legislative gap occurs in a dynamic legal field, such as family law. Although family law is well-established in some places, such as Georgia and the United Kingdom, legislatures have dealt with advances in technology differently. Consequently, this has led to abuses of technology that have gone unpunished.⁵ Unfortunately, when legislation is outdated, the public bears the true burden of experiencing harm that was entirely preventable.⁶

This Note will identify and discuss innovative abuses of technology that challenge established notions of privacy.⁷ In most cases, Georgia's legislature, the Georgia Assembly, passes new laws to curb innovative abuses of technology. However, despite their thorough efforts, there is still an

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apparent gap in Georgia law as the judiciary's call for change falls on deaf ears. For example, Cobb County Superior Court Judge Robert Leonard recently experienced this conundrum when he recognized a gap in legislative guidance that restricted his ability to justly decide a complex divorce case.⁸

In its evaluation, the Note will engage with notions of privacy novel to the United States, the United Kingdom, and the State of Georgia. It will then discuss fundamental differences between domestic violence laws, like stalking and invasion of privacy, found in the State of Georgia and the United Kingdom. Next, this Note will analyze how the United Kingdom responded to innovative abuses of technology, many of which the State of Georgia has failed to address. Finally, this Note will recommend that the State of Georgia implement either more periodic updates from the legislature, liberalization of the judicial branch, or broader, more sweeping pieces of legislation to effectively combat future abuses of new technology.

II. BACKGROUND

Divorce can be messy, and Melissa Atkins of Cobb County, Georgia discovered firsthand just how chaotic it can be. In 2013, Melissa worked for Robert Lewis, who was married to Michele Lewis.⁹ Michele suspected her husband was having an affair with Melissa during the course of Melissa's employment.¹⁰ Michele hired a private investigation company, Truth Fact Protect Company ("TFP"), to track Melissa's location using a discrete GPS-locator placed underneath Melissa's car.¹¹ Upon discovery of the GPS-tracking device, Melissa sought counsel and sued TFP for invasion of privacy, trespass to personal property, and intentional infliction of emotional distress.¹² However, in Melissa's civil lawsuit against TFP, Cobb County Superior Court Judge Leonard ultimately found there was no law explicitly prohibiting private investigators "from using a GPS device to track people without their knowledge.¹³ In his decision, Judge Leonard acknowledged that although the policy stemming from his decision was morally reprehensible, TFP's actions were technically legal because there was no legislative guidance to prohibit

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the activity.¹⁴ Ultimately, Judge Leonard concluded that his decision "represents a classic situation where our jurisprudence and legislation have not kept up with rapidly changing technology that is widely available and cheaply obtained."¹⁵ He further recommended that the Georgia Assembly take up the issue in order to give Georgia courts the ability to protect Georgians' privacy and avoid abuse of such technicalities.¹⁶

While it may be of some comfort to Melissa that Judge Leonard thought TFP's behavior was morally reprehensible, this does not explain whether the Georgia Assembly agrees with Judge Leonard's assessment. Presumably, if the Georgia Assembly agreed this behavior was indeed one that needed prohibiting by enacting necessary legislation, it would have already done so. However, to Judge Leonard's assured dismay, the Georgia Assembly has been silent on this matter. Nevertheless, despite the continued silence in Georgia, the United Kingdom deems the act of attaching a GPS-tracking device to another person's vehicle a prosecutable offense.¹⁷ These varied responses to innovative abuses of technology may indicate fundamental differences between British and American notions of privacy. These opposing results require reflection on notions of privacy within the United States and Georgia juxtaposed to those within the United Kingdom in order to determine whether the act of tracking someone using a GPS device warrants prohibitive legislation.

A. American Notions of Privacy

While a right to privacy is not explicitly stated in the United States Constitution, the Fourth Amendment's guarantee to a person's right "to be secure in their persons, houses, papers, and effects" points to the notion that privacy is an integral part of the American ethos.¹⁸ However, this phrase is

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typically construed to pertain to unlawful searches and seizures by government entities.¹⁹

With advances in technology, notions of privacy continue to conflict with innovative methods of technology abuse.²⁰ For example, it was considered legal for law enforcement to use GPS to track suspects without a warrant until the Supreme Court's 2012 decision United States v. Jones.²¹ In Jones, the Court concluded that law enforcement unlawfully trespassed onto Jones's personal property by installing a GPS tracking device on his vehicle.²² Justices Sotomayor and Alito's reasoning, however, focused on the breach of a citizen's "reasonable expectations of privacy," which was the traditional form of analysis when determining search and seizure violations.²³ Although the Jones holding, in its entirety, is not applicable to non-law enforcement uses of GPS tracking devices, this reasonable expectation of privacy analysis could be useful in interpreting whether a private citizen, such as Michele's private investigator, can attach a GPS tracking device on another citizen's car without the owner's consent.

The Supreme Court also provided some context as to a general right to privacy in the 1965 decision Griswold v. Connecticut.²⁴ In this decision, Justice William O. Douglas specified that there were inherent rights to privacy emanating from the "penumbras" of the Bill of Rights.²⁵ While this decision supported a right to privacy in the marital context, the Griswold decision's establishment of a fundamental right to privacy has been extended to decisions

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of a different nature.²⁶ Since federal statutory guidance on this subject does not currently exist, it is up to individual states to regulate whether the nonconsensual use of a GPS tracking device is legal.

B. How States Have Dealt with the Use of GPS Tracking Devices

The lack of federal guidance from either Congress or the Supreme Court provides states with discretion to prohibit the use of GPS to track private citizens. Interestingly, numerous states have already made efforts to curb this behavior by updating their stalking or invasion of privacy laws to reflect prohibited uses of technology.²⁷ While some have gone further than others, the vast majority of states have recognized the rise in abuses of technology and have responded to these abuses with new or amended legislation.²⁸

For example, in 2014, New York prohibited the use of GPS devices to track another person. However, New York only considered this offense a fourth-degree stalking penalty, which is punishable only as a misdemeanor with a small fine and potential short -term incarceration.²⁹ While some New York attorneys believe this statutory language lacks comprehensiveness because of its limited scope, other critics worry this update does not protect against potential domestic violence.³⁰ Although other states, such as California, have updated their statutes with stronger language than New York's, the offense still lacks teeth because it is classified as merely a misdemeanor.³¹ The State of Delaware, however, takes this offense more seriously by allowing trial...