Ever been tempted to use technology to spy on someone? Cell phone tracking software makes it easier than ever to do so – but it can also easily lead to criminal liability.
Keeping tabs on your kids via their cell phones may be understandable and not likely to get you thrown in jail or sued. But tracking and listening in on people who have not consented is clearly illegal.
Take for instance Spybubble, one of many brands of cell phone tracking software. Its website – cleverly disguised to look like a blog – trumpets its ability “to locate and track telephone calls, SMS [text] messages, address book contact information and also the GPS based location of any smart phone including the iPhone, iPad, Android and Blackberry devices.”
All you need to run the software is the international mobile equipment identity (IMEI) of the cell phone you want to spy on. The IMEI is the unique number, printed inside the battery compartment of the phone, used by satellites to identify valid cell phone devices.
Spybubble advertises itself as having at least two potential uses: keeping tabs on your partner, and on your kids.
“If your partner says he is in Cleveland on business but the tracking software places him at a hotel in Akron, you will immediately know he is up to something,” says the site. “Once you look at his texts and listen to his calls, you will likely know exactly what that something is.”
There are “legal and moral concerns” that stem from spying on someone via their cell phone, admits the site. But what it doesn’t say is that since it’s unlikely your partner has given you the green light to spy on him, using the phone to catch a cheater is going to run you afoul of many different laws.
“Use of such software without user consent is inappropriate at best, and likely illegal or actionable,” confirms Alan Butler, the 2011–12 advocacy counsel for the Electronic Privacy Information Center (EPIC) in Washington, DC.
“Ultimately, modern smart phones are just portable computers, and the same rules should apply to protect their data from abuse,” Butler says. He points to several reasons why using such software is likely illegal.
First, under the Computer Fraud and Abuse Act (CFAA), which is outlined in the Department of Justice’s manual on computer crimes, simply “installing such software without authorization of the user is a misdemeanor, and possibly a felony,” he says. “In addition, there are many state-law equivalents of the CFAA that could give rise to liability or criminal sanctions.”
Then there is the actual use of the software to invade someone’s privacy – a violation in most states that could give rise to civil liability. The object of your spying would have to prove that their data was private, the intrusion would offend a reasonable person and it caused him suffering, says Butler.
But proving this can actually end up being difficult, he adds. “We have argued at length that historical location records (and a wealth of other cell phone data) are private, and that individuals have a reasonable expectation of privacy in such records,” he says of EPIC’s work. “But this is by no means a settled question.”
Courts are currently struggling to define that reasonable expectation, given the difficulty of applying antiquated laws to current technology. Criminal defendants who have tried to use the Fourth Amendment’s protections have run up against problems, with many courts ruling that users of smart phones cannot expect privacy since they are already revealing information by using the phone.
“The ‘privacy harm’ could be difficult to prove, but given the nature of the injury (mental suffering), it would also be difficult to disprove,” Butler says.
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