While technology is not inherently violent, people who engage in intimate partner violence often employ technology as a means of obtaining and maintaining coercive control. Various technologies equip offenders with very efficient means to commit the crimes of stalking, intimidation, and harassment, while also enabling them to pinpoint their victims’ physical locations. Although it is challenging to stay one step ahead of the many different ways to abuse technology, it is important for judges and court staff to keep current on the latest issues associated with technology and domestic violence. This article will only scratch the surface of the many different ways that technology can be used to both victimize and protect individuals.
Technology as Aggression
Many people forego a landline and use a smartphone as their primary—or only—communication device. While this is convenient and can be cost-effective, the decision to “unplug” carries with it some vulnerability. Certain applications (apps) reveal information about the smartphone user, as do shared family phone plans. Phone company “family locator” apps, as well as “Life360” and “Family Tracker,” may have a benign purpose—keeping tabs on your children—but they can be misused for invasive purposes. Location-based social media apps, such as Facebook, Twitter, and Urban Spoon, can reveal a user’s location via GPS. Other popular apps, including Viber, Vine, WhatsApp, and Instagram, also tag users’ locations. Offenders have used this information to find victims in domestic violence shelters.
Smartphones are also vulnerable to “spoofing,” a practice whereby a person can place calls or send text messages using a fake caller ID in order to mask his or her real identity. Examples of such apps include “Caller ID Faker” and “Spoofcard.” Spyware allows offenders to convert their victims’ smartphones (as well as their computers) into listening and recording devices, letting an offender conduct total surveillance on someone. “Mobistealth” and “MobileSpy” are two leading examples of software available to monitor smartphones. “Spy phone” apps work on a “target” smartphone, revealing its exact GPS location, recording events, opening up contacts and photo albums, monitoring keyboard strokes, chats, and emails, and even looking through its camera lenses.
Finally, disappearing messaging apps, like Privnote, Snapchat, and Burn Note, let users send a message that self-destructs after a certain time, thus making it difficult to preserve evidence of the message. TigerText goes one step further by encrypting the message; the app removes the messages from both devices and phone company servers. But offenders do not need fancy software or smartphones to terrorize their victims—a regular computer and a Facebook account will suffice.
This term, the U.S. Supreme Court is considering the appeal of Anthony Elonis, who was convicted of transmitting a threatening communication in interstate commerce, in violation of 18 U.S. Code §875(c). After his wife, Tara, took their two children, left him, and obtained a protection order against him, Elonis was fired by his employer. He was very angry, and he expressed his feelings in a series of Facebook posts directed at his ex-wife and, later, the FBI.
One of the posts, which he characterized as rap lyrics in the style of Eminem’s “’97 Bonnie & Clyde,” told Tara to “fold up your PFA [Protection From Abuse, or protection, order] . . . is it thick enough to stop a bullet?” Elonis also wrote a piece describing “making a name” for himself by perpetrating “the most heinous school shooting ever imagined” at one of the many “elementary schools within a 10-mile radius.” (Much has been written about Anthony Douglas Elonis v. United States, for which the Court heard oral arguments on Monday, December 1, 2014. Many of his threatening postings are too graphic to print in this publication. My sources include: “Chief Justice Samples Eminem in Online Threats Case,” New York Times, Dec. 2, 2014; “Threats on Facebook: LOL, I Didn’t Really Mean It,” techsafety.org, posted Oct. 17, 2014; “Chemerinsky: SCOTUS to ponder ‘true threats’ on Facebook,” abajournal.com, posted Nov. 25, 2014; and, “Are Facebook Threats Real?” slate.com, posted June 16, 2014.)
In Elonis, the Supreme Court will decide the standard for determining whether such language is protected expression or a punishable crime: an objective standard would mean that if a “reasonable person” would feel threatened by these postings, then they are criminal threats; a subjective standard would mean the government must prove, beyond a reasonable doubt, that Mr. Elonis specifically intended that Tara feel threatened by his postings. Indiana’s criminal intimidation statute, Ind. Code §35-45-2-1, requires specific intent for threatening communications; our state’s criminal harassment law, Ind. Code §35-45-2-2, also requires proof of an “intent to harass, annoy, or alarm another person.” Both statutes include computer-generated and other electronic messages in their purview.
By contrast, Indiana’s stalking law, Ind. Code §35-45-10-1 et seq., contemplates a “reasonable person” standard for judging a defendant’s actions. The law’s broad definition of “harassment” in section 2 undoubtedly covers the use of technology to stalk. The federal penal code also criminalizes stalking across state lines, at 18 U.S. Code §2261A, and contains a specific section on cyberstalking. Cyberstalking involves using technology to place a person under surveillance, or to harass, injure, intimidate, or kill the person. The largest study to date of stalking in the U.S. found that over 70% of stalking victims know their offenders in some capacity, and that most victims are divorced or separated people. (Catalano, Stalking Victims in the United States—Revised, Bureau of Justice Statistics, Sep. 2012, NCJ 224527).
Technology as Protection
Some help is available to defend against the misuse of technology: the National Network to End Domestic Violence (NNEDV, nnedv.org) administers the “Safety Net Project,” which offers training and other resources to law enforcement officers, victim advocates, and others to address emerging technology and safety issues. The NNEDV, along with the National Crime Victim Institute, also operates the Relocation Counseling and Identity Protection Technical Assistance Project to assist survivors. And, the NNEDV manages the Technology, Education, & Confidentiality Project, which focuses on privacy and confidentiality.
Two smartphone apps are noteworthy for their potential to assist victims: TrapCall, which promises to “unmask” blocked numbers; and Circle of 6, which lets people easily connect with friends and get help quickly with just two touches to the screen. Smartphone users wishing to enhance their privacy can also turn off location services in the “settings” section of their devices, and anyone using a computer can visit data brokers’ websites and elect to opt out in order to shield their personal information from those sites.
Finally, some laws specifically aim to protect victims’ privacy: Ind. Code §35-37-4-12 outlines the circumstances under which a victim cannot be required to disclose certain personal information, while 18 U.S. Code §2265(d)(3) requires that Internet protection order registries not list the names of protected persons.