Can I Sue Someone for Going Through My Phone?

In this article, we will answer the question: can you sue someone for going through your phone? The answer to this question will depend upon the intent of the person going through your phone. It will also depend upon what information the person accessed and how this information was used. Based on the answers to these two questions, the intruder may be:  

1. Liable for Intrusion upon Seclusion; 
2. Liable for Public Disclosure of Private Information; and/or 
3. Guilty of Computer Tampering. 

Key Takeaways

Intrusion upon Seclusion 

Intrusion upon Seclusion occurs when one individual invades the privacy of another by intruding upon the solitude or seclusion of another in his or her private affairs in a manner that is highly offensive. There are three elements to an intrusion claim: 

1. Intentional intrusion of private affairs of the plaintiff without his or her consent; 
2. The intrusion would be considered offensive to a reasonable person; 
3. The matter upon which the intrusion occurred was private; and 
4. The intrusion caused mental anguish or suffering to the plaintiff. 

Taking and going through one’s cell phone from them without their knowledge would constitute intrusion. However, whether this intrusion led to the access of personal or private information depends upon what the intruder accessed as they were going through the phone. In addition, if the intrusion was made with intent to cause harassment or harm, you may have a stronger case as this constitutes evidence of both (1) offensiveness and (2) mental anguish or suffering.  

‍

‍

Public Disclosure of Private Information 

Public disclosure of private information is actionable under Illinois law. Under the tort of public disclosure, the law “provides a remedy for the dissemination of true, but highly offensive or embarrassing, private facts.” Poulos v. Lutheran Social Services of Illinois, Inc., 312 Ill. App. 3d 731, 739 (2000). A case for public disclosure requires the three following elements:  

1. A private fact was made publicly known; 
2. The fact was indeed private, not public knowledge; and 
3. The matter was made public such as to be highly offensive to a reasonable person. 

It is important to note that public disclosure does not constitute simply telling one person or a few people about something you find personal or private. Typically, public disclosure of private information case requires that the private matter be communicated to the public at large or to so many people that the matter becomes regarded as general knowledge. However, if the plaintiff has a special relationship with the “public” to which the information was disclosed, courts will consider the publicity element to be met. For example, if sensitive information was found on your phone and the intruder told several people close to you (ex. family members, coworkers), then the publicity requirement would likely be met.  

It is important to note that public disclosure is a separate but related cause of action to intrusion upon seclusion. If any private information obtained without your consent from your cell phone is shared to the public and used to cause harassment or embarrassment, you may be entitled to additional damages on top of what you receive for the intrusion upon seclusion suit. Furthermore, if the disclosure was made in an attempt to cause harassment or harm, you may have a stronger case.  

Computer Tampering under 720 ILCS 5/17-51 

If an intruder cracks your password or uses your biometric information to access your phone, this constitutes a violation of Illinois Computer tampering laws. Computer tampering occurs when a person knowingly and without permission accesses the computer of another.  

Under the Illinois criminal code, a Computer is defined as “a device that accepts, processes, stores, retrieves, or outputs data and includes, but is not limited to, auxiliary storage, including cloud-based networks of remote services hosted on the Internet, and telecommunications devices connected to computers.” 720 ILCS 5/17-0.5. Smartphones presumably fall under this definition as they accept, process, store, retrieve, and output data.  

Under Illinois law, Computer tampering at a minimum constitutes a Class B misdemeanor. While it is possible to file a police report on the matter, criminal charges are unlikely to follow unless there is clear evidence of intent on the part of the intruder. In the event you file a police report, it is important to note how the intruder accessed your phone (did they steal your password, did they guess it successfully, etc.).  

If you believe you have been the victim of someone going through your phone without your consent, the experienced attorneys at O’Flaherty Law Office can help you; call today to schedule a consultation.