Author
Danielle Keats Citron

Citation
Danielle Keats Citron, Spying Inc., 72 Wash. & Lee L. Rev. 1243 (2015).

Published
January 6, 2016

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The latest spying craze is the “stalking app.” Once installed on someone’s cell phone, the stalking app can provide continuous access to the phone owner’s calls, texts, snapchats, photos, calendar updates, and movements. Stalking apps destroy the privacy and confidentiality of cell phone activities. Domestic abusers and stalkers frequently turn to stalking apps because they are undetectable even to sophisticated phone owners.

Business is booming for stalking app providers, even though their entire enterprise is arguably illegal. Federal and state wiretapping laws ban the manufacture, sale, or advertisement of devices knowing their design makes them primarily useful for the surreptitious interception of electronic communications. But those laws are rarely, if ever, enforced. Existing law may be too restrictive to make a real difference.

A legal agenda is essential to combating the growth of stalking software. We need to update criminal and civil penalties facing providers. Record-keeping requirements could help decrease the demand for spyware. Private rights of action, if recognized, could help secure redress and deterrence. To increase the likelihood that the law will be enforced, states and localities need more training and digital forensic expertise. The private sector could reinforce these efforts by offering devices that can resist the installation of spyware.