TECHNOLOGY, STALKING, AND DOMESTIC VIOLENCE: A GROWING JUDICIAL AND LEGISLATIVE RECOGNITION OF "ABUSE"
By Michael C. Peterson, Esq.
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 and security).
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!
Traditional Forms "Abuse" Under the Family Code
Under two relatively new cases, all of the conduct described above is "abuse" as interpreted by appellate courts via Family Code §§ 6203, 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.
Per FC § 6320, "abuse" within the meaning of the Domestic Violence Prevention Act (herein "DVPA") means:
• intentionally or recklessly causing or attempting to cause bodily injury (FC § 6203(a));
• sexual assault;
• placing a person in "reasonable apprehension" of imminent serious bodily injury to that person or another; or
• engaging in any behavior that has been or could be enjoined pursuant to FC § 6320 (i.e. including "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party".
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).
The Nakamura Decision - Hiring Private Investigators
In 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.
The Nakamura appellate court reversed under the abuse of discretion standard. It reasoned that "the "abuse" that may be enjoined under sections 6203 and 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 section 6300." 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.
From 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.
The Nadkarni Decision - Disturbing the Peace Through Invasions of Privacy
Similarly, in 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.
The 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 present case."
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.
The Nadkarni decision, in many ways, is probably more helpful to a vast group of the population in comparison to Nakamura. Where 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 anything, right?
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 dialogue exists.
- 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 for spy-ware.
- 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 Nadkarni and 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.