Tracking and spyware on a family member's phone or car

Federal statutes that can apply

No federal statute addresses private GPS tracking by name, but several apply depending on the facts. The federal stalking law (18 U.S.C. § 2261A) covers a course of conduct, using the mail, internet, or other facilities, that places a person in reasonable fear or causes substantial emotional distress, and tracking can be part of that conduct. The Wiretap Act (18 U.S.C. § 2511) covers intercepting communications, which is what spyware that captures live calls or messages can do, and § 2512 prohibits manufacturing, selling, or advertising devices whose design makes them primarily useful for the surreptitious interception of communications. The Stored Communications Act (18 U.S.C. § 2701) and Computer Fraud and Abuse Act (18 U.S.C. § 1030) cover unauthorized access to accounts and devices.

The constitutional cases people often cite about GPS, United States v. Jones, 565 U.S. 400 (2012), and Carpenter v. United States, 585 U.S. 296 (2018), limit what the government may do. They do not directly regulate private individuals, although they reflect how seriously courts treat location data as private information.

State tracking-device laws

Many states make it a crime to place a tracking device on someone else's vehicle or to track a person without consent. Details vary. California Penal Code § 637.7 prohibits using an electronic tracking device to determine the location or movement of a person without the consent of the owner, lessor, or lessee of the vehicle, with exceptions, including for the registered owner or lessee. Texas Penal Code § 16.06 makes it an offense to knowingly install an electronic or mechanical tracking device on a motor vehicle owned or leased by another person, subject to listed exceptions. Because these laws often turn on vehicle ownership, who is on the title and registration matters, and a car that is jointly owned or owned by one spouse and used by another raises hard questions. A number of states have also enacted laws aimed at using Bluetooth item trackers to follow a person.

Spyware on a phone

Installing spyware on another adult's phone usually requires access to the device, and that act, together with what the software then does, can implicate several laws at once: accessing the device without authorization (state computer-crime laws and the Computer Fraud and Abuse Act), intercepting live communications (the Wiretap Act and state eavesdropping laws), accessing stored data (the Stored Communications Act), and stalking. Merely paying for or owning the phone is not necessarily enough: authority generally depends on whose device it is and whether the user knows about and agrees to the monitoring.

The Federal Trade Commission has also taken action against stalkerware makers, including settlements with Retina-X Studios (2019) and an order against Support King, LLC, the maker of SpyFone (2021) that barred the company and its chief executive from the surveillance business. Apple and Google also publish guidance and, for some trackers, send alerts when an unknown tag is moving with a person.

Location sharing with consent

Using a built-in location-sharing feature or a family-locator app is generally lawful when each adult knowingly agrees and can stop. Problems arise when sharing is demanded as a condition of the relationship, when it continues after consent is withdrawn, or when it is paired with other conduct that frightens or controls the person. Courts and advocates look at the whole pattern, not only whether a toggle was switched on.

Parents, minor children, and the other parent

Parents and guardians of minor children generally have broad authority to supervise a child's whereabouts, and many state tracking statutes exempt parents and guardians of minors. Open monitoring tied to the child's age is the safest ground. Covertly capturing a child's private conversations raises wiretap issues, and monitoring that harasses or controls an older teenager can be viewed unfavorably. When parents are separated, one parent tracking the child's device, or the other parent's movements through the child's device, can become an issue in custody and protective-order disputes.

Older relatives and relatives with cognitive decline

GPS devices for people who may wander, including those living with dementia, are widely used. They are most defensible when the person agrees while able to, or when a legal decision-maker such as a guardian or an agent under a power of attorney authorizes them within the scope of that authority. Family members do not gain unlimited authority over an adult relative simply because the relative has become more vulnerable, and facilities and states have their own rules about cameras and monitoring.

Consequences

Depending on the facts, covert tracking can lead to criminal charges (stalking, unlawful tracking, computer crime, or interception), civil lawsuits for damages and injunctions, and protective orders. Courts can also consider tracking in custody, support, and property decisions. A protective order can specifically prohibit contacting, following, or tracking a person.

If someone suspects they are being tracked

Privacy advocates note that signs can include an abuser repeatedly knowing where a person has been, an unfamiliar device on a vehicle, or a phone alert about an unknown tracker. In abusive situations, removing a device or app can alert the person doing the tracking and may destroy evidence, so domestic-violence advocates commonly help with planning before acting. The National Domestic Violence Hotline (1-800-799-7233) and the NNEDV Safety Net technology-safety resources provide confidential guidance. This is general information, not legal or safety advice for a particular situation.