Sharing, Surveillance & Stalking: Drawing the Line the Internet Needs

For the Internet to work, these will be different: sharing on one side, and surveillance and stalking on the other.  Snowden and Schneier showed us the surveillance society, in which the secret courts had failed to rein in the appropriation of everything shared in the private sector by government.  This world will appear in history as the apex of government’s hubris in appropriating the big data of the internet as its own, erecting monuments to itself like this Enterprise deck war room:

information dominance center

We also saw, however, that — contrary to what you read now almost everywhere — offers hope for drawing that line between sharing and surveillance:  We saw relatively few cases of abuse, to be sure the LOVEINT cases in which surveillance gave way to personal stalking, but not the kind of targeting that J. Edgar Hoover perpetrated on Martin Luther King or the Orwellian abuses that everyone rightly concerned about government surveillance fears.  The lesson, too rarely stressed, is that our government employees doing surveillance follow the rules given to them.

Those rules are changing, thanks to the courts and (but for concerns about how the telephone companies will retain metadata) Congress. The emphasis on cryptography without backdoors by the big Internet companies has changed dramatically. Privacy is a clear competitive differentiator for a number of those companies.  Sousveillance and whistleblowers are on the rise everywhere.  The net-net is an ever-growing, necessary gulf between sharing and surveillance.

Location tracking is of course one of the most important areas in which to draw the lines between sharing and surveillance/stalking in the right way.   Everything government does in that space should of course be legally permissible surveillance, on which the courts are drawing the line in interesting ways that are not the subject of this post.  The question related to the categories framing this post is what is permissible sharing in the private sector as opposed to stalking or inappropriate surveillance.

A majority of US states do not yet regulate the ability of a private citizen or company to track another citizen using GPS tracking technology, but such regulation is spreading quickly based on several inconsistent models.  The models derive from different purposes, e.g., the protection of privacy generally, the prevention of stalking and the prevention of tracking of vehicles in particular.   The universal challenges as these laws spread are (1)  to make sure that consent is a clear exception to prohibitions on location tracking by private companies or citizens and (2) to have a good way of dealing with situations in which one person’s GPS apps end up identifying the location of somebody else.

Some statutes are primarily concerned with the ease with which GPS technology facilitates crimes such as stalking. The passage of “Jackie’s Law” in New York in 2014 sharpened a previously existing stalking law so as to encompass GPS tracking. Oklahoma is considering a similar bill. Colorado Courts have also interpreted their stalking statute to include GPS tracking.  While these laws are regulating private citizens’ use of GPS technology, a conviction generally requires the intent to cause material harm (physical or emotional) to  the tracked person.

At least nine other states, however, have laws that restrict the use of GPS technology as a way of protecting privacy outside of the context of stalking, and the legislatures of at least five states are now considering such laws or expansions of their existing laws.  Some of these laws started with vehicle tracking.   For example, California, Michigan, Tennessee, and Texas prohibit vehicle tracking with a GPS.  However, while California’s law only prohibits attaching a GPS monitor to a car, the other states prohibit placing a GPS monitor in a car.  So if Andy is given a ride by Bob while Andy is carrying his smartphone in Michigan, Tennessee or Texas, can Andy, his smartphone platform and all of the location tracking apps on that smartphone be prosecuted?  And the situation in California could get much more difficult if SB 690 goes through as drafted; it would expand the prohibition from vehicular tracking to any tracking without expanding the consent exception outside of vehicular tracking.

The general concern, of course, is that an issue as nuanced as location privacy is in danger of being badly served by the laws passed by state legislatures in response to the latest local horror stories.  In creating these laws and our shared selves, we need to contribute to further clarification and illumination of the line between sharing on one side and surveillance and stalking on the other.


Summer intern and future tech law star Bobby Seifter contributed substantially to this post.