Most of us, at one point or another, have dedicated a day of the week to running our personal errands. That day might consist of going to the grocery store, shopping at the mall, or grabbing coffee with a friend. Now imagine on the way home from any of those activities, you get this notification on your iPhone:
You don’t own an AirTag or probably don’t even know what it is, but it doesn’t take long for you to realize that you’re being tracked. Recently, this has happened to unsuspecting people in Virginia and Arkansas.
While there have not yet been any reported instances in North Carolina, our cyberstalking statute prohibits this type of nonconsensual tracking. This post explores the cyberstalking offense as proscribed by G.S. 14-196.3.
What is an AirTag?
Apple has created a small tracking device, about the size of a quarter, that is intended to help people keep track of their wallet, keys, and other personal items in the event they are lost. The AirTag is attached to keys via a key ring, or slipped into a wallet, purse, or backpack. When an owner gets separated from these items, the owner can use his or her iPhone to ping the location of the lost item if it is nearby.
If the item is lost farther away—like losing a wallet at the beach or leaving a purse at the airport—the AirTag sends out a signal that can be detected by nearby Apple devices. According to the Apple website, these devices send the location of the AirTag to the cloud, and the owner can then go to the app and see the location on a map.
Although this product has been all the rave for Apple users who need help keeping up with their belongings, the AirTag has come with some unwanted and potentially criminal uses.
Cyberstalking
Under G.S. 14-196.3(b)(5), it is a Class 2 misdemeanor to knowingly install, place, or use an electronic tracking device without consent to track the location of any person. The statute defines “electronic tracking device” as an electronic or mechanical device that permits a person to remotely determine or track the position and movement of another person. The relevant subsection (b)(5) of the statute provides 11 exceptions to the rule, in which the use of an electronic tracking device may be permitted.
Domestic violence implications
Perhaps one of the biggest concerns surrounding the use of tracking devices is the vulnerability of victims or potential victims of domestic violence. While there are some exceptions carved out relating to tracking of an individual’s property or family, the exceptions have exceptions where domestic violence protective orders (or other protective orders) are in place.
G.S. 14-196.3(b)(5)(b) permits the owner or lessee of any vehicle to install, place, or use an electronic tracking device on any vehicle that person owns or leases. Under this subsection, a husband or wife may lawfully track a vehicle driven by the other spouse without the spouse’s consent, provided that the husband or wife is listed as an owner or lessee of the vehicle. However, if the tracking spouse is subject to a DVPO or other protective order at the time of tracking and the order is intended to protect the tracked spouse, the tracking spouse will likely violate this statute.
Subsection (h) permits the use of a tracking device by a parent or legal guardian of a minor when the electronic tracking device is used to track the location of that minor. This means that parents can track their kids without fear of being charged with cyberstalking. Again, this exception does not apply if the parent or legal guardian is subject to a DVPO or any court order that orders the parent or legal guardian not to assault, threaten, harass, follow, or contact that minor or that minor’s parent, legal guardian, custodian, or caretaker.
Under subsection (k), tracking is permitted by a private detective or private investigator licensed under Chapter 74C of the General Statutes, provided that the tracking is pursuant to statutory authority and the tracking is not otherwise contrary to law. Additionally, the person being tracked must not be under the protection of a domestic violence protective order or any other court order that protects against assault, threat, harassment, following, or contact.
Court-authorized tracking
Subsection (a) permits the installation, placement, or use of an electronic tracking device by a law enforcement officer, judicial officer, probation or parole officer, or employee of the Division of Corrections, Department of Public Safety, when any such person is engaged in the lawful performance of official duties and in accordance with State or federal law. More broadly, subsection (f) permits tracking where authorized by an order of a State or federal court. These exceptions cover scenarios in which law enforcement officers obtain real-time surveillance information through satellite-based Global Positioning System data (GPS) or cell site location information (CSLI). These exceptions also encompass the tracking of sex offenders, domestic violence offenders, and probationers who are placed under satellite-based monitoring or electronic house arrest. Although the Fourth Amendment implications of these methods of tracking are not always clear, the analyses are not related – a Fourth Amendment violation by use of a tracking device will not necessarily equate to cyberstalking.
Other exceptions
The other enumerated exceptions include:
- A legal guardian for a disabled adult, when the electronic tracking device is installed, placed, or used to track the location of the disabled adult
- The owner of fleet vehicles, when tracking such vehicles
- A creditor or other secured party under a retail installment agreement involving the sale of a motor vehicle, when tracking a motor vehicle identified as security under the retail installment sales agreement
- A motor vehicle manufacturer, its subsidiary, or its affiliate that installs or uses an electronic tracking device in conjunction with providing a vehicle subscription telematics service, provided that the customer subscribes or consents to that service
- An employer, when providing a communication device to an employee or contractor for use in connection with his or her work for the employer
- A business, if the tracking is incident to the provision of a product or service requested by the person
Defenses
Consent
One defense to a cyberstalking by tracking charge is consent. A defendant would have to show that the person being tracked consented to being tracked. This could be shown, for example, by use of the mobile apps that allow family and friends to share their locations with one another. These apps typically require the person being tracked to opt-in to location sharing.
Guardianship or ownership
Another defense that is clear from the statute is guardianship of the person or ownership of the thing being tracked. As described above, a legal guardian for a disabled adult may track the disabled adult, an owner of fleet vehicles may track those vehicles, and an employer may track a communication device given to an employee or contractor. It is important to note that these provisions do not give guardians or owners carte blanche to install, place, or use those tracking devices. In addition to the provisions that prohibit tracking when a protective order is in place, there are provisions that clarify that tracking is permitted only when it is being done in connection with the person’s work or other authority. For example, a legal guardian for a disabled adult can use a tracking device to track only the disabled adult for which the person is a legal guardian. An employer may use a tracking device only when providing a communication device to an employee or contractor for use in connection with his or her work for the employer. A business may use a tracking device only if the tracking is incident to the provision of a product or service requested by the person.
A few of the exceptions require both ownership and consent to avoid a cyberstalking charge. Subsection (g) permits a motor vehicle manufacturer to install or use an electronic tracking device in conjunction with providing a vehicle subscription telematics service, provided that the customer subscribes or consents to that service. Subsection (e) allows a secured party under a retail installment agreement involving the sale of a motor vehicle or the lessor under a retail lease of a motor vehicle to track the secured or leased vehicle when tracking a motor vehicle identified as security under the retail installment sales agreement or leased pursuant to a retail lease agreement, with the express written consent of the purchaser, borrower, or lessee of the motor vehicle.
We so far do not have any North Carolina precedent on this offense, its elements, or defenses for the offense. Even so, given these technological developments and the potential for their criminal misuse, more case law guidance is sure to come. If you have any questions about this offense or its application, please feel free to email me at bwilliams@sog.unc.edu.