When the Illinois Tollway began offering drivers a way to pay their tolls electronically, few drivers thought that the new system might impact their case if they ever got a divorce. But thanks to an unusual legal loophole, your ex might be able to find out information collected by the Tollway about your movements and use that data against you.

Most people in the Naperville area will remember when the Illinois Tollway began issuing I-Pass transponders to drivers. These devices attach to your vehicle, and whenever you drive through a gate, you pay the toll automatically. Besides the convenience of not having to stop to toss your change into the dish, I-Pass users get a discount on tolls.

Driving data used in divorce proceedings

What you may not know is that I-Pass collects data on users’ travels on the Tollway. While that information generally is kept private, I-Pass will disclose that information when the party to a legal action — such as a divorce — gets the judge to issue a subpoena.

That information could influence divorce matters such as child custody and property division. For example, it might show that a vehicle belonging to the spouse who is currently taking care of the children is regularly driving on the Tollway late at night. Or the car could appear to be exiting at the same location often — perhaps near the home of a suspected lover. Or that a spouse who claims to be unemployed and in need of spousal maintenance has a secret job.

It’s relatively easy for a party to a civil court matter like a divorce to get the other party’s I-Pass data subpoenaed. WBEZ obtained 117 subpoenas issued over 14 months. While criminal prosecutors and police departments requested most of these subpoenas, a substantial number of them went to divorce attorneys.

21st century investigating or privacy violation?

As one divorce lawyer explains, subpoenaing this information is cheaper and more high-tech than hiring a private investigator to follow around your ex. On the other hand, privacy advocates say there are not enough safeguards in the law. For example, there is no obligation to inform someone when their I-Pass data has been subpoenaed.