Watching your every move: Private use of GPS trackers is still legal

GLENDALE -- Police now need a judge’s permission to place a GPS tracking device on a person’s car, but in Wisconsin a private citizen can do the same thing without anybody’s permission.

Last month, the U.S. Supreme Court ruled that when police apply a GPS device to a suspect’s car, it constitutes a ‘search’ under the 4th amendment.  The ruling means that – in most situations – they need to get a search warrant first.  The decision has no effect, however, on private use of GPS.

Last summer, a Milwaukee County woman – we’ll call her Lisa – suspected that her ex-boyfriend was following her around.

“I hadn’t golfed in a long time and I went golfing and then I get a text saying, ‘Don’t worry about your daughter, worry about your golf game,’” Lisa said.

That’s when she decided to seek help.

“And I talked to my attorney and he said, ‘Take your car in and have it checked out.’ He said, ‘There’s got to be some kind of tracking device on your car.’”

She took her car to Black Forest Mercedes in Glendale, where a mechanic put it up on a lift.

“We barely got it up in the air, looked underneath, and pretty much at the same time, we both pointed at it,” said Michael McKinney, owner of Black Forest.

They found a small black box behind the right rear axle, attached by a magnet to the car’s undercarriage.

“I think we both were in shock,” said Lisa. “To me, it’s stalking.”

Glendale police disagreed. When they traced the device back to its owner, they found it wasn’t her ex-boyfriend who put it on the car. It was a private investigator working for him.

Police determined there was “insufficient evidence” to warrant further investigation.

“He hired the private investigator. I think the money came from him,” Lisa said. “So, it doesn’t matter how many people you put in the middle.”

We’ve chosen not to reveal Lisa’s true identity or that of her ex-boyfriend in order to protect their three-year-old child, who is at the center of a custody dispute.

The private investigator told a Milwaukee County judge that he used the GPS device to protect his client’s safety, since Lisa had brought a convicted criminal along to some of the child exchanges.

Lisa said that was just an excuse for her ex-boyfriend to keep tabs on her. She told the court he had already used GPS to track her once before while they were still dating.

“One day he just happened to leave a bunch of work papers and I was being inquisitive, I guess, and saw logs of pretty much everywhere I had been.”

This "he said, she said,” case raises troubling questions about the state of the law in Wisconsin concerning the private use of GPS.

Tony Sherman, also a private investigator, says PI’s must be very careful with privacy laws. In fact, he’s been burned before by a client who tried to use him to stalk an ex-girlfriend.

“Everyone has their ‘oh crap’ moment where they learn from their mistakes, and that was ours,” Sherman said.

That’s a big reason Sherman says he shies away from using GPS devices in domestic disputes.

“Domestically speaking, there isn’t any law pertaining to GPS and the use of GPS devices,” Sherman said. “It’s that ethical standard that you want to live by and abide by.”

Although the Supreme Court ruled that police have to get a judge’s approval in most cases before they can stick a GPS device on a suspect’s car, current Wisconsin law allows any private citizen to do it without anyone’s permission.

Bruce Boyden, a Marquette University law professor, says that in Texas it is misdemeanor offense to secretly place a GPS device on someone's car without the owner’s consent, but in Wisconsin, it’s not a crime, and while instances like this may have potential to be a civil lawsuit, Boyden admits even that is speculation.

“The law is definitely unclear here, so there’s a definite need for legislative clarification of the use of GPS devices," Boyden said.

In 2009, the Wisconsin Court of Appeals urged the Legislature to limit the use of GPS by both police and private individuals.

State assemblyman Bill Kramer, got the court’s message.

“I could put a GPS device on your car or anybody who’s watching and keep track of everywhere you go,” Kramer said. “I don’t think that’s right.”

Two years ago, the Waukesha Republican teamed up with Democrat Marlin Schneider on a bill that would have made it a felony for a private citizen to secretly place a GPS device on a car without the owner’s consent.

However the bill died in the Senate in 2010 and hasn’t resurfaced since.

“I felt like I lived in a prison, by this person’s hand for over three years,” Lisa said. She hopes policy makers in Madison will take it serious and try again.