Troeckler v. Zeiser, 2015 WL 1042187, a recent Southern District of Illinois case, examines this question adapted to a plaintiff’s intrusion on seclusion claim filed against her ex-husband – the defendant who, with some help, secretly affixed a GPS device (a “black box”) to the plaintiff’s car.
The defendant’s two principal acts giving rise to plaintiff’s suit were (1) installing the GPS device; and (2) repeatedly trying to log-in to the plaintiff’s personal email, computer and cell phone accounts. Plaintiff sued for invasion of privacy/intrusion on seclusion (the “Intrusion Claim”) and conspiracy against the ex-husband and the people he hired to install the device and log in to plaintiff’s e-mail.
The defendant moved to dismiss all claims and the Court dismissed some claims and sustained others.
On the Intrusion Claim, the court noted that in Illinois, intrusion on seclusion is a species of the invasion of privacy tort. To make out a valid invasion of privacy claim in Illinois, a plaintiff must demonstrate (1) an unauthorized intrusion or prying into the plaintiff’s seclusion; (2) an intrusion that is offensive or objectionable to a reasonable person, (3) the matter upon which the intrusion occurs is private; and (4) the intrusion causes anguish and suffering.
Element (3) – the intrusion involves something that is private – generates the most litigation. Case examples of private matters include poking holes in a bathroom ceiling and installing hidden cameras in a doctor’s examination room. Conversely, private facts contained in public records (name, address, SS #, e.g.) do not satisfy the privacy element.
The court looked to a New Jersey case for guidance as to whether installing a GPS device was actionable intrusion on seclusion. The New Jersey court in Villanova v. Innovative Investigations, Inc., 21 A.3d 650 (N.J.App.Ct 2001) held that a defendant who surreptitiously placed a GPS monitor on her ex-husband’s car (to see if he was cheating on her) was not an invasion of privacy where there was no evidence the defendant drove his car into a private or secluded location.
Following the reasoning of the NJ case, the Troeckler court dismissed the plaintiff’s Intrusion Claim since the plaintiff failed to allege that she drove her car somewhere in which she had a reasonable expectation of privacy.
The plaintiff fared better on the Intrusion Claim as it pertained to the defendant hacking into her private email accounts. The court found that for purposes of a motion to dismiss, the plaintiff did sufficiently allege a claim for invasion of privacy based solely on the e-mail allegations.
The plaintiff won and lost parts of her conspiracy claim against her ex and the various people he enlisted to help him install the GPS device and breach the plaintiff’s emails accounts. Civil conspiracy requires concerted action and an underlying wrongful act. Since the plaintiff failed to establish invasion of privacy on her Intrusion Claim, there was no predicate tort for the conspiracy.
The result was different with respect to the e-mail hacking though. Since logging in to the plaintiff’s private accounts was a possible invasion of privacy (at least at the early pleading stage), the conspiracy claim survived as it related to the e-mail claims.
1/A defendant’s unauthorized hacking into a plaintiff’s private email accounts can underlie an intrusion on seclusion/invasion of privacy claim;
2/ In the context of installing a monitoring device on someone’s car, the privacy tort is applied literally: if the plaintiff doesn’t show that she drove somewhere private or “secluded,” invasion of privacy isn’t the proper cause of action to assert. With the benefit hindsight, the plaintiff probably should have pled a violation of the civil stalking statute based on the defendant’s GPS installation.