Over the past several months, some of my clients have come to learn that
their "ex" has used sometimes illegal means to obtain information
about them that should give rise to a domestic violence restraining order.
In fact, we are seeing an epidemic of this kind of behavior. It is a bold
new world in terms of the technology available to track a person's
movements, receive his or her email correspondences, or otherwise stalk
them and to possibly violate the sanctity of attorney-client communications.
This is a way more common circumstance than we imagine, because we tend
to take our privacy and security for granted. It is not just the NSA that
you need to fear, but our own government has set the examples that have
desensitized us to our rights to privacy - or those of others.
One client found a computer program installed on his computer by which
his all incoming and outgoing emails were secretly being copied to his
ex, including my own attorney-client communications. Another client found
a GPS tracking device attached magnetically to the underside of her car,
and this was likely placed there by a private investigator who was hired
to follow my client to dig whatever dirt up he could. Another client had
the interior and exterior of her home placed under complete video surveillance
(as well as having interior door jams wired in) and the video feeds were
sent off-site (presumably to the husband's laptop); this client also
owned a dog prior to marriage, and the husband had threatened to take
the dog and make it disappear (the dog is her primary source of comfort
Even in one of my own personal, prior relationships I have experienced
conduct that is probably common in many, many relationships: my ex-girlfriend
would snatch up my cell phone and look through my texts and emails (sometime
secretly, without my knowledge, and sometime out in the open if she was
angry enough) - I know this sounds familiar!
Under two relatively new cases, all of the conduct described above is "abuse"
as interpreted by appellate courts via Family Code §§
6320 (herein "FC"). "Protective" and other "domestic
violence prevention" orders (FC § 6300,
et seq.) may issue, with or without notice, to prevent a recurrence of domestic
violence pursuant to affidavit (and, if necessary, information obtained
from the court's background search) demonstrating, to the court's
satisfaction, "reasonable proof of a past act or acts of abuse."
FC § 6300;
Nakamura v. Parker (2007) 156 CA4th 327, 334;
Marriage of Nadkarni (2009) 173 CA4th 1483, 1494.
• placing a person in "reasonable apprehension" of imminent
serious bodily injury to that person or another; or
The two above-cited recent cases hold that the traditional notions of domestic
violence go beyond punches, kicks, and "make you flinch" conduct;
"abuse" in the modern age also includes tracking a person's
movements (Nakamura) and use of electronic media and devices to track a person's communications (Nadkarni).
Nakamura Decision - Hiring Private Investigators
Nakamura, following a no contact order issued by a juvenile court in a dependency
proceeding, the mother brought a DVRO application and alleged the husband
had subsequently swapped cars and canceled auto insurance without her
consent, had said to her that he knew where she shopped, what she "did
over the weekend," and who she was dating. He also said he had hired
somebody to follow her. She alleged he had also called her names, saying
he would make her life miserable and destroy an antique doll collection
she had at the family house and valued highly. The mother also alleged
several acts of physical abuse eight months earlier (from the opinion,
apparently not resulting in injuries), but did not report it to the police.
The trial court in
Nakamura denied the DVRO request, "giving no explanation beyond that provided
by the following statement rubber-stamped on the face of the mother's
application: 'The undersigned judicial officer has read and reviewed
the attached application and declaration for order. The facts set forth
do not provide a legal basis to issue the order requested and the application
is therefore denied....'"
Nakamura v. Parker,
supra, 156 CA4th at 333.
Nakamura appellate court reversed under the abuse of discretion standard. It reasoned
that "the "abuse" that may be enjoined under sections
6320 is much broader than that which is defined as civil harassment. (Cf. Code
Civ. Proc., § 527.6, subd. (b).)"
Id., at 334. The appellate court continued "the conclusion the parties
and other interested persons will most likely draw from the summary denial
of [the mother's] application is that the facts she alleged do not
constitute abuse under the law. Parker may therefore be induced to continue
such conduct and Nakamura to believe she has no legal way to prevent him
from doing so."
Id., at 336.
It then said "[t]he trial court's determination that the facts
alleged in [the mother's] application 'do not provide a legal
basis to issue the order requested,' assumed the truth of the factual
allegations and found them, as a matter of law, not sufficient to constitute
'reasonable proof of a past act or acts of abuse' pursuant to
Id., at 337. It continued that "even if some of the facts she alleged,
such as the switching of cars and canceling of insurance, might not clearly
constitute "abuse" within the meaning of that Act, [the mother]
has under penalty of perjury provided numerous specific and admissible
facts based on personal knowledge showing past acts and more recent and
recurring acts showing [abuse within the meaning of FC §§ 6203,
6320]; all demonstrating a substantial risk that "great or irreparable
injury" would result to her before the matter can be heard on notice."
Id. The appellate court concluded by stating "[i]n any event, the facial
adequacy of [the mother's] factual allegations to show that she was
"abused" within the meaning of the DVPA operated to divest the
court of discretion to summarily deny her application. Because the peremptory
denial of relief without a hearing exceeded the discretion vested in the
judiciary by the DVPA, the trial court's ruling must be deemed an
abuse of discretion.
Nakamura, we can see that hiring a PI to follow a person whom has standing for
domestic violence (spouses, former spouses, cohabitants or former cohabitants,
dating relationships, or persons within the second degree of consanguinity
in terms of familial relationships to the victim; see
FC § 6211) rather than civil harassment) and hiring spouse's communicating the
information learned to the victim, if found to be true, is "abuse"
within the meaning of the DVPA. It is another question, not directly addressed in
Nakamura, of whether hiring a PI and not 'crowing' about it directly to
the surveilled party/victim (but, perhaps, simply using the information
directly in litigation as evidence) constitutes "abuse".
We also see that threatening to destroy property is "abuse" as
well. As with my client whose ex threatened to take her dog and implied
she would never see the dog again, that can give rise to a DV restraining order.
Nadkarni Decision - Disturbing the Peace Through Invasions of Privacy
Nadkarni, during a dissolution of marriage involving a custody battle for two teenagers,
the husband accessed an email account used by the wife and obtained copies
of emails between her and third persons,
including her attorney. According to the husband, the parties used the email account
to communicate about their children, and he accessed the account after
discovering that the wife had left the children alone while she traveled
to India. The husband attached copies of the wife's emails to documents
he filed in the trial court in their child custody matter. The wife asserted
that the email account belonged to her and was used for her personal and
professional business. Based on the husband's accessing and intercepting
her emails, she applied for and received a temporary restraining order
and order to show cause under the DVPA.
Marriage of Nadkarni, supra, 173 CA4th at 1488. However, at the noticed hearing on the DVRO,
the trial court dismissed the wife's application on the husband's
motion for judgment on the pleadings for facial insufficiency concerning
intercepting the emails.
Id.; also at 1493.
On appeal, the wife contended that the trial court erred in dismissing
her application for a restraining order on the ground that the husband's
alleged conduct was insufficient to constitute abuse within the meaning
of the DVPA. The appellate court held that the wife's application
for a restraining order under the DVPA was facially sufficient, and therefore
reversed the order dismissing the application for a restraining order
and remand the matter for a hearing on the merits.
Id., at 1488.
Nadkarni appellate court reasoned that "abuse" as defined by the Family
Code (see above) and a prima
facie case thereunder was supported by the wife's allegations. It stated "that
'the requisite abuse need not be actual infliction of physical injury
or assault. (Conness v. Satram (2004) 122 CA4th 197, at 202.) To the contrary,
section 6320 lists several types of nonviolent conduct that may constitute abuse within
the meaning of the DVPA, including two types of conduct relevant to the
It went on to state that "[the husband's] alleged conduct of viewing
[the wife's] private email, learning her social schedule, and communicating
this information to third persons who then told [the wife] that [the husband]
was aware of her schedule, could constitute indirect and threatening contact
with [the wife], and thus abuse within the meaning of section 6320."
The appellate court continued, that "section 6320 broadly provides
that 'disturbing the peace of the other party' constitutes abuse
for purposes of the DVPA. The DVPA does not provide any definition for
the phrase 'disturbing the peace of the other party,' ..."
so it looked to statutory interpretation rules, discussed both the plain
meaning of the words "disturb" and "peace", stating
"[t]hus, the plain meaning of the phrase "disturbing the peace
of the other party" in section 6320 may be properly understood as
conduct that destroys the mental or emotional calm of the other party."
Id., at 1497-1498. It then discussed the legislative history of the DVPA,
stating "the Legislature intended that the DVPA be broadly construed
in order to accomplish the purpose of the DVPA [i.e. protecting a broad
class of victims and ensure an opportunity to be heard by both sides].
Therefore, the plain meaning of the phrase "disturbing the peace"
in section 6320 may include, as abuse within the meaning of the DVPA,
a former husband's alleged conduct in destroying the mental or emotional
calm of his former wife by accessing, reading and publicly disclosing
her confidential emails."
Id., at 1498.
The appellate court concluded, stating "[i]n the present case, we
determine that the allegations in [the wife's] application and declaration
are facially sufficient for a showing of abuse within the meaning of the
DVPA. We assume, without deciding the truth of [the wife's] allegations,
that [the husband's] conduct included accessing, reading, and publicly
disclosing the content of [the wife's] confidential emails, and that
his conduct caused her to suffer "shock" and "embarrassment,"
to fear the destruction of her "business relationships," and
to fear for her safety."
Id., at 1498-1499.
Nadkarni decision, in many ways, is probably more helpful to a vast group of the
population in comparison to
Nakamura dealt with a hodge-podge of abuse-like acts (i.e. destroying the dolls,
actual physical battery, PI investigation, and communicating the PI investigation's
results to the victim outside of the litigation context),
Nadkarni's facts were limited to, and thus honed in on, what I term as "techno-stalking."
Nadkarni simply involved hacking an email account and using the information gleaned
therefrom directly in litigation. The reasoning behind such conduct being
"abuse" as a matter of law was that it was indirect, threatening
conduct that destroyed the emotional calm of the victim under the "disturbing
the peace" provisions of
FC § 6320, and the legislature intended the definition of "abuse" to be
broad. I think
Nadkarni, coupled with
Nakamura, gives insight to the question I posed above at the end of the
Nakamura section: Does PI surveillance "abuse" require the stalking spouse
to 'crow' about the information outside of litigation? It would
seem not, since the husband in
Nadkarni only used the information gleaned from the wife's email in the litigation
context to advance his position on child custody/visitation issues.
Criminal Liability for Techno-Stalking
Fortunately, in 2010 the California made "techno-stalking" illegal
in some contexts. Penal Code § 637.7 makes it a misdemeanor crime,
punishable by up to six months in jail, to use electronic means to track
a person's whereabouts (as well as the loss of a professional license,
such as a private investigator's license to investigate or an attorney's
license to practice law). The statute provides:
(a) No person or entity in this state shall use an electronic tracking
device to determine the location or movement of a person.
(b) This section shall not apply when the registered owner, lessor, or
lessee of a vehicle has consented to the use of the electronic tracking
device with respect to that vehicle.
(c) This section shall not apply to the lawful use of an electronic tracking
device by a law enforcement agency.
(d) As used in this section, "electronic tracking device" means
any device attached to a vehicle or other movable thing that reveals its
location or movement by the transmission of electronic signals.
(e) A violation of this section is a misdemeanor.
(f) A violation of this section by a person, business, firm, company, association,
partnership, or corporation licensed under Division 3 (commencing with
Section 5000) of the Business and Professions Code shall constitute grounds
for revocation of the license issued to that person, business, firm, company,
association, partnership, or corporation, pursuant to the provisions that
provide for the revocation of the license as set forth in Division 3 (commencing
with Section 5000) of the Business and Professions Code.
The means to techno-stalk a person is inexpensive, easily available, and
can be quickly installed on computers, vehicles, and cell phones. Companies
such as BrickHouse Security in New York offer a vast array of devises,
offered usually under the guise of keeping informed of a child/teenager's
communications and whereabouts, and keeping them safe on-line. Just like
politicians, if you can make it about the kids, you can justify almost
If you think you deleted that text message from your phone and its gone
forever into the ether, you would be wrong if your spouse spent $139.00
and installed BrickHouse Security's: Cell Phone Recon" product
on you device:
You know your cell phone's GPS tracking can give real-time information
about where it (and hence you) are at in the world at any given moment
in time, but you may think you are safe because you turned off location
tracking function? You may be fooling yourself again.
All the spouse, boyfriend, or girlfriend needs is about 5 minutes of access
with your phone. You will never know the person you placed all your love
and trust installed a form of spy-ware on your phone at all. Mobile tracking
devices are sold with magnetized housings that can be slapped onto the
undercarriage of your Prius or Porsche in an instant - has it ever occurred
to you to crawl beneath your car to see if any odd little boxes, like
warts, have become attached to the steel that girds you automobile?
Moreover, if you discover your PC, phone, or car has been 'bugged'
the means of getting evidence in front of a court can be very difficult
and expensive. If, for example, you are in California and the spy-ware
information (as well as any service contracts naming the customer) is
maintained out of state, such as in New York, you can have a California
subpoena issued, but it will lack enforcement power unless you hire a
New York attorney to domesticate the subpoena into the New York court
system. If you are a represented litigant, you will be paying two attorneys
for domestication of a California subpoena into the service-provider's
state, both your California attorney and the domesticating state's
attorney, and you will probably pay $2,000 or more (depending on whether
the service provider completely complies, or whether your out of state
attorney has to motion to compel) per subpoena. It is highly ironic that
the cost of proving who the author of the techno-stalking abuse is to
the satisfaction of a judge can as much as ten times or more greater than
the cost of the techno-stalking equipment or software.
Ways to Protect Your Privacy and Feeling of Security
Obviously, don't date or marry obsessive people. Make sure boundaries
are clear in terms of your relationship: you don't look through my
phone, and I won't look through yours. I think is probably just as
prevalent for men to use technology to techno-stalk women as it is for
women to techno-stalk men, and I have seen it both ways in my personal
and professional life. I have noticed the control-freak personality types
prone to techno-stalking seem also to be drawn to careers in education,
medicine, law enforcement, the legal profession, and the military (basically
jobs where a person gets to tell others what to do).
- Put a password on your phone or Ipad.
- Take a moment to list the various computers and PDA type devices that your
family, including especially your children, use and have access to. Each
of them is a potential doorway into your private on-line accounts. Your
son or daughter, as completely innocent parties, may have access to ITunes,
Netflix and Amazon Prime in order to download music or merchandise that
may give their parent or another sibling who is hostile to you access
to your computer, possibly one of the best examples being how Apple sets
up its Mobile Me or cloud based accounts. Apple is terrific in the way
it has created seamless interfaces among its various products, so that
a laptop in the home may be linked to the desktop computer, and to the
Iphone or Ipad, etc., which works great for intact families that are not
at war. Computer or device A asks permission to connect to devices B though
Z by sharing their passwords as something called "keychains,"
and a simple click of the "allow" prompt enables them all to
speak together. But that very interconnectedness, which we tend to treat
so casually, has darker undertones if we forget that this behind the scenes
- Change ALL of your computer and account passwords! It is amazing how little
attention people give to this, and yet most of us reuse the same passwords,
or slightly altered derivations thereof, on their various internet-linked
accounts. If you think your significant other won't remember them,
can't figure them out, or doesn't know how to use auto-fill on
that family computer or IMAC, I guarantee that you will be mistaken.
- Check to see whether your computer is set to authorize remote log-ins.
Uncheck that box!
- Consider taking your computer or phone to an expert technician to look
- If you find spy-ware that tracks your movements by GPS, report it to the
police. A PC § 637.7 collar is not particularly sexy to most officers,
so be persistent, go over some heads if you have to, and realize you may
have to do some of the detective work on your own (i.e. getting a subpoena
issued and, if applicable, domesticated into the spy-ware service provider's
state of business).
Have your car and your cell phone in your name only. If the registration
or account is under joint names or your significant other's name,
no crime is committed per PC § 637.7.
If you bring a restraining order based on techno-stalking, make sure you
include a thorough Memorandum of Points and Authorities discussing
Nakamura. We have one that we will upload next week. Feel free to copy and paste
my analyses of those cases. Many judges are stuck in the mindset that
domestic violence means hitting or shoving. Even with a good legal argument,
a judge may not grant a 21 day temporary restraining order on an
ex parte basis based upon non-physical violence, but that doesn't mean they
will not grant a 'permanent'/up to five year restraining order
after being presented with the evidence of techno-stalking.
Author: MIchael C. Peterson, Esq.