Illinois tollway data, divorce and privacy

By Jeffery M. Leving

When the first car with an I-Pass, carrying Gov. Jim Edgar, rolled through the toll booth at the Maple Avenue exit off I-355 in Lisle 25 years ago, electronic toll payment was touted as a convenience and a time saver - but privacy advocates warned that the Tollway Authority would be accumulating data on individual customers, and possibly issuing speeding fines to drivers who traveled from one toll gantry to the next ahead of the approved time.

The latter concern has not come to pass, but the former certainly has: Police use I-Pass data in investigations - though getting the evidence into court is tricky but can be done - and private civil lawyers, particularly divorce lawyers, find a trove of useful information in I-Pass records.

I-Pass records are not available to the general public under Freedom of Information Act requests, but the Tollway Authority will comply with court-approved warrants and subpoenas.

What can divorce lawyers find in these records?

  • In child custody disputes, a parent who believes the other parent is not fulfilling their parental duties may use this data to establish the parent is not caring for the child. A parent may use the data to establish the other is not with the child, but instead on the road headed to a different location, such as a race track. The parent who believes the other is not meeting their obligations may be able to use this information during custody litigation or as support for a modification to an existing agreement.
  • In alimony determinations, I-Pass information may show one party to the divorce is working when they say they are not. An example could involve evidence the driver is frequently on the road at a certain time on certain days of the week, indicating travel to and from work or driving an Uber or Lyft.
  • In property distribution disputes, a party to a divorce may use evidence of travel patterns to support a contention that a future ex is dissipating marital assets by showing the ex has driven to casinos on a regular basis.
  • An ex-spouse who is paying maintenance may use I-Pass to show that the recipient has moved in with a new boyfriend or girlfriend, which, if true, would end the maintenance obligation.

The fact that a car went through a toll collection point may prove the car's whereabouts at critical times. These records can establish a pattern of travel that litigants may have to explain, under oath.

"We routinely utilize I-Pass records in discovery," says Maureen A. Gorman, a divorce litigator at the Law Offices of Jeffery M. Leving Ltd. "In the emotionally-charged field of divorce and child custody law, it can be helpful to have critical data to prove our client's case."

Privacy advocates see a problem, however: The Tollway Authority will cough up whatever information it has that is requested in a lawful warrant or subpoena, and if the I-Pass customer is not a party to the litigation, he or she may never be notified. Information includes not only toll collection data, but also the customer's name, address, phone number, license plate number, car make and model, and email address.

But the fact remains that I-Pass data can be subpoenaed, it is frequently used in divorce cases, and 90% of Illinois Tollway toll transactions are now electronic, so there's a ton of information out there.

Those who are going through a divorce are wise to seek legal counsel to discuss this and other options to ensure their interests are protected throughout the divorce process.