The latest spying craze is the “stalking app.” Once installed on someone’s cell phone, the stalking app provides continuous access to the person’s calls, texts, snap chats, photos, calendar updates, and movements. 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. 

Reform is needed to combat the growth of stalking apps and their ilk. Criminal penalties should be extended to those involved in the sale of devices designed to secretly intercept communications and location data. The primarily useful standard covers too small a swath of spying devices for the law to serve as a meaningful deterrent. Additional digital forensic expertise and training are essential at the state and local level to ensure law’s enforcement. State Attorneys Generals should also follow the FTC’s lead in bringing civil enforcement actions against spyware providers. The private sector could reinforce these efforts by offering devices that can prevent the installation of spyware.

Danielle Citron, Spying Inc., 72 Washington & Lee Law Review, 1243–1282 (2015).