State v. Hormann, A10-18722 (Minn. Ct. App. October 19, 2011)

Hormann was charged with installing a tracking device on his then-wife's car, in violation of a Minnesota statute prohibiting the use of, among other things, tracking devices without a court order. (Minn. Stat. 626A.35.)

As recounted in the order, in March 2010, the victim had a mechanic inspect the car, and the mechanic found a tracking device magnetically attached to the underside of the car. In January of that year, the victim testified about an incident involving domestic violence. In response, the victim moved out, but the defendant sent her text messages "commenting on where she had been and otherwise indicating that he was . . . monitoring her movements." She also testified that the defendant allegedly put spyware on her cell phone that "allowed him to intercept her text messages and that he also seemed to know everything she was doing on the family computer." The defendant was also involved in an incident where the defendant allegedly located the victim in a lakeside cabin, "entered the cabin, and physically attacked an acquaintance of [the victim's]."

The statute excluded the use of a mobile tracking device when it was used to track an object with the "consent of the owner." Hormann argued that because he had an ownership interest in the vehicle, the statute could not be used to convict him.

The court finds that the statute's use of the word "owner" is ambiguous in this context, and the drafters did not anticipate the scenario where an object has more than one owner. The court looks to Minnesota's vehicle-title rule for the definition of "owner." The vehicle-title statute defined owner to include a person who has "property in [sic] or title to a vehicle." A person entitled to "use" the vehicle was encompassed within the definition of "owner."

The court found that Hormann was entitled to use the vehicle. The vehicle was purchased with marital funds and thus presumptively marital property. There was also evidence in the record that Hormann used the vehicle on occasion. (At oral argument, the state conceded that it would not prosecute Hormann for auto theft if Hormann was found to be driving the vehicle, even without the victim's consent.) The evidence with respect to title to the vehicle was also favorable to Hormann. While the victim was shown to be the sole registered owner, Hormann produced evidence that the victim signed title over to Hormann (the testimony at trial showed that this transfer was done to facilitate the sale of the vehicle and the transfer was never recorded). According to the court, this transfer demonstrates how "incidents of formal ownership of marital property may not accurately reflect who is using a vehicle."

The court applies the rule of lenity to construe the statutory ambiguity narrowly, and holds that the exception applies where the vehicle or object has multiple owners, and one of the owners consents to the tracking device.

Divorce and privacy



Divorces are fertile ground for privacy issues, and in previous posts I've speculated about the effect of joint ownership rules on privacy violations. A New Jersey (civil) case involved GPS tracking, and although the court did not raise the issue and there was no statute expressly aimed at tracking, I wondered about the fact that "since the wife owned the car, she could have argued that she had the right to track its movements." (The New Jersey case was decided largely on the grounds that the vehicle in question was on publicly visible roadways, where the driver enjoyed a diminished expectation of privacy.) The issues can be less clear when it comes to emails, since spouses sometimes maintain joint email accounts, and there's not always a clear "owner" of a particular account.

On the other hand, statutes which are aimed at communications provide for exceptions based on the consent of the parties to the communications, and ownership of a phone or an email account will not provide an easy out under those statutes. In this case, the victim alleged that the now-former husband infringed on her privacy in other ways (e.g., installing spyware on her computer and her cell phone), but the focus of the charge was the tracking.

It may be too early to have a meaningful tally, but I wonder if courts are more tolerant of spouses who engage in tracking while in the midst of a divorce or separation. As always, soon-to-be ex spouses who track and listen in should beware.

Venkat Balasubramani is a lawyer and the cofounder of a boutique law firm focused on media, technology, and Internet clients. You can read more from him at Eric Goldman's Technology & Marketing Law blog and at Spam Notes.