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Can Lawyers Access Stalker Apps to Help Domestic Violence Victims?

By George Khoury, Esq. on June 07, 2018 | Last updated on March 21, 2019

For the most part, new technology is good. But like every good thing, bad actors will try to exploit it. And with how easily accessible and cheap technology is these days, more and more people go from paranoid to felon simply as a result of downloading an app.

But we're not talking about any old app, or any one app in particular, but rather the narrow category of covert surveillance apps. Sure, downloading a surveillance app on your own device is one thing, as we've explained before, our old smartphones can have a life after you upgrade to the next big thing, but installing a surveillance app on another person's device is something else entirely. There are many nefarious surveillance apps, as the New York Times recently detailed, that get used by stalkers, abusers, and even murderers.

How to Get E-Stalking Evidence

For attorneys, the evidence these sorts of apps can capture can really make a case. In the domestic violence, and especially in the stalking, context, evidence that someone is monitoring another's communications, location, or private affairs (while potentially consensual with popular apps like Find My Friends), is extraordinarily damning when revealed to be covert.

To find out, you need to get your hands on the alleged perp's smart phone or electronic devices, and potentially have the devices forensically examined and copied (as whatever you're looking for has probably been deleted). The same will likely be true for the victim's phone, and may have to be done beforehand to get the evidence you'd need to win a potential discovery battle.

Just as Hard as It Sounds

Unfortunately, as the ABA Journal explained, domestic violence litigators often struggle to obtain the electronic app evidence, particularly in misdemeanor DV actions. A large part of the struggle is the lack of forensic resources at police departments. In civil matters, getting this sort of evidence in a presentable format would potentially require thousands of dollars worth of experts, or a lengthy legal battle with the tech company that made the software.

As the NYT report found, many of the app makers that target the covert surveillance market have changed the language they use to advertise their software, and actively seek to avoid liability for making a product they know people will use illegally. Some even blame "affiliate marketing" for suggesting illegal uses.

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