Using AirTags to track a spouse or child. Is it Legal? Should you do it? (Part 1)

AirTags and other Bluetooth trackers, like Life360’s Tile, are coin-sized tracking devices. Using a Bluetooth signal, an AirTag pings off any Apple device using Apple’s Find My network and shows you the location of the AirTag. When out of range of the tracker, Tile’s app will show you the last location it was seen by your device and can ping off other Tile users to locate its current location.  The benefit of these trackers is that they are small enough to go undetected and they are inexpensive. In fact, the AirTag sells for only $29.00.

While these Bluetooth trackers were originally designed to help users find keys and other lost personal articles, they are now routinely used to locate pets, lost luggage, and …people. They have quickly become the easiest and cheapest form of security and surveillance.

Just this month, a Cary couple, who had hidden an AirTag in their car, woke to find that their car had been stolen out of their own driveway. The couple was able to outsmart the thieves with the AirTag, locate their stolen car within minutes, and alert the police, who soon recovered their vehicle.

Cary Family Tracks Stolen Car with AirTag

AirTags have their benefits. However, while a family member may have good intentions placing an AirTag in the jacket pocket of relative suffering from dementia or putting one in her child’s bookbag, these tracking devices have opened up a Pandora’s box of legal and ethical issues and have been at the center of invasion of privacy, stalking, domestic violence, and even murder cases.

Can a parent track his child? Can a spouse track her spouse?

In family law cases, a father may be concerned about the welfare of his child when she in the custody of her mother who suffers from substance abuse or mental health issues. He may want to put an AirTag in his daughter’s backpack when she goes to her mother’s house for visits? Can he?

A wife may suspect her husband is cheating and want to follow him. She may want to place an AirTag in his car to track his location. Can she?

In North Carolina, generally, it is illegal to knowingly install or use an electronic tracking device to track the location of any person without that person’s consent. You cannot drop an AirTag in your spouse’s purse, backpack, jacket, gym bag, etc. However, there are a few exceptions carved out in the law. Unless there is a domestic violence protective order or other restraining order in place, hiding an AirTag in your car may be legal, so long as the car is titled or leased in your name or jointly with your spouse. However, despite this exception, depending on the circumstances, placing an AirTag in your car that your spouse drives could be considered a form of stalking or harassment.

What about tracking your kids? Can you do it? If so, when? What are the parameters or limits, if any? In North Carolina, parents or legal guardians may legally track their minor children with the use of an AirTag or other Bluetooth device unless the parent or legal guardian is subject to a domestic violence protective order or any court order that prohibits the parent or legal guardian from assaulting, threatening, harassing, following, or contacting the minor child or that minor child’s parent or guardian.

Does that mean that so long as a protective order isn’t in place a parent can track a child while the child is in the other parent’s custody? Is the parent tracking the child, tracking the AirTag? Or tracking the other parent? The law and the repercussions of one’s actions are as clear as mud. North Carolina adopted the vicarious consent doctrine in the case of Kroh v. Kroh regarding a parent’s recording of conversations between a minor child and the other parent. Based on this case, a custodial parent “may” vicariously consent to the placement of a tracking device in the child’s bag so long as the parent has a good faith, objectively reasonable belief that the recording is necessary for the best interests of the child. However, this is a slippery slope.

What if a judge doesn’t agree, and determines that you did not have “a good faith, objectively reasonably belief” to track your child while she was in her mother’s care or that doing so was NOT in the “best interests of the child?” If that happens, then the “tracking parent” may be subject to violation of the Electronic Surveillance Act, where there are huge civil penalties. Additionally, a judge in a custody case may hold it against the tracking parent, construing the tracking parent’s actions as interference with the other parent’s relationship with the child.

The bottom line is that AirTags are tracking devices, and while tracking devices can help you find your keys, they can also be used for nefarious purposes. Regardless of the limited exceptions carved out in the law, you should never use an AirTag to track any person without first consulting with an attorney.

Check back next week for part two to learn how can you protect yourself and your child from being tracked. 

Ward Family Law Group

At Ward Family Law Group, we only practice family law. Period. Our lawyers are equipped to handle complex financial issues and high-conflict child custody disputes. We provide individualized attention and aggressive representation and strive to find creative, cost-effective, timely solutions for our client's and their families.

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