Stalking? There’s an App for That: Liability for the Advertisement and Sale of Mobile Spyware Applications

October 4, 2014

In this age of technology, the use of mobile applications (also known as “apps”) can make time consuming and tedious tasks fairly easy to accomplish. We can find, and buy, just about anything with a quick tap on the screens of our “smart” devices. We can pay our bills virtually without ever having to walk to our mailboxes or sign a check. We can track someone’s every movement, listen to all of someone’s conversations, and know all the details of someone’s life without ever having to leave the comfort of our own homes. While the use of mobile applications can make our lives easier, utilizing them can also jeopardize our privacy and safety.
The use of “stalker apps” is particularly problematic as they place an increasing number of individuals at risk of being stalked. Using stalker apps allow individuals to eavesdrop on someone else’s conversation and track their victim’s location. When these applications are used to stalk or harass others, how far do we want to extend criminal liability? Is the stalker held liable or do we hold the company that provided the spyware accountable?
On Saturday, September 27, 2014, the government attempted to answer the difficult question of spyware liability. Hammad Akbar, the chief executive officer of the company that advertised and sold the mobile spyware application, StealthGenie, was arrested and charged with conspiracy and sale of surreptitious interception device. StealthGenie was marketed to individuals who were suspicious that their spouse was having an affair. Capabilities of StealthGenie include the ability to: record and intercept calls; monitor email, texts, voicemails, photos, videos, and calendar appointments; listen to conversation in real time if the stalker was within a fifteen-feet radius of the victim’s phone; record phone conversations that can be listened to later on; track a victim’s movements on an online map, and; alert the stalker when a victim is at a particular location. The only catch to using StealthGenie is the stalker must covertly install the application onto the phone of the person they intend to stalk. However, even this is not a difficult task.

Gaining access to someone’s phone is as simple as asking, “Can I borrow your phone?” With this, a stalker can gain access to all the information already stored on the phone, all the information that will be stored on the phone, and all the information communicated through the phone.

Akbar defends himself by pointing a finger to the users of his application. He claims that the users should be held liable for any criminal conduct. While charging an application software developer with criminal liability is a novel charge, Akbar’s defense to this allegation is certainly not new. In fact, a legislation, Section 230 of the Communications Decency Act, provides for online service providers to do exactly what Akbar is doing. The Communications Decency Act Section 230 precludes online intermediaries from being held liable for postings generated by users of their websites. What a user posts on a website is not speech attributable to the online service provider. Akbar’s claim appears to be a similar one: what users of the application do with the application is not attributable to Akbar.
On one hand, if Akbar is held liable for advertising and selling StealthGenie, this leaves the question of which other software developers, who have also created mobile applications that could be used for spying on others, will soon face criminal liability. There are plenty of other applications, such as Phone Tracker or Find My iPhone, that track phones in real time and can tell others where the phone user is located.
On the other hand, if Akbar were released from liability and allowed to hide behind his user’s actions, this could mean bad news for anyone who wishes to have any degree of privacy in his or her life. As mobile applications become further encrypted to allow users to hide their identities when using applications, there may be a vicious cycle of users hiding behind spyware application developers and spyware application developers hiding behind users.
Mobile applications can be useful and convenient for users. However, as technology continues to develop, the lives of users are being exploited and increasingly public. The government must strike a difficult balance between encouraging the free market sales of advanced technology and the safety and privacy of its citizens.