GPS Stalking Addressed by Multiple Pieces of Legislation

Various legislation addresses GPS stalking

Photo: Beao/Wikimedia commons

While the world is changing, the fact that people are still suspicious of one another, even those they are supposed to be most intimately attached to, remains the same. The technological changes in the world means there are entirely new ways to keep tabs on someone suspected of wrongdoing. Gone are the days are hiring a private investigator or taking on the task personally, trying to covertly follow the suspected party. Also gone are the days when this might have been considered legal in many states. A recent form of tracking, GPS stalking, is a problem that is being addressed by several pieces of legislation on both a state and national level.

Current Laws for GPS Stalking

GPS stalking is tracking someone’s movements using a Global Positioning System (GPS). Such systems are found in many types of cars and smartphones, but they are also available as individual devices which can be covertly attached to a vehicle or stealth apps which can be put on smartphones and monitored.

It has been estimated that in 2006, before smartphones were as prevalent as they are today, more than 25,000 cases of domestic violence were linked specifically to GPS stalking. A recent law in New York known as Jackie’s Law puts more modern numbers to the phenomenon, stating that one out of every four stalking cases nationwide involve some form of tracking technology.

Jackie’s Law was named for Jackie Winiewski, a woman who was murdered two years ago in New York by her boyfriend. Previous to her death, Winiewski had discovered her boyfriend had placed a GPS device on her car, but New York law at the time didn’t allow for prosecution. Jackie’s Law was recently signed into effect in New York, but many are wondering if it is enough. The gist of the law is that it is now illegal to commit GPS stalking, under one condition: the person being tracked must make it clear that electronic tracking is unwelcome. The obvious gray area deals with the fact that GPS stalking would still be legal if the person didn’t know about it.

Currently GPS tracking is legal in many cases, such as for parents monitoring the activity of their children, law enforcement using them for investigations, companies tracking the use of a company vehicle, and even car rental companies, although in the latter situation, many states require the company to notify the renters of such a device. Vehicle owners are allowed to have tracking devices on their car, but some states designate that it is illegal to track a co-owner of the vehicle, such as a spouse.

In Utah, GPS stalking [stalking, in general] is considered an “offense against the person” according to Utah Code 76-5-106.5. The offense ranges from a class A misdemeanor to a second degree felony depending largely on whether or not the offender has been convicted of stalking before or if he/she used a dangerous weapon in the commission of the crime. While the law is unclear whether or not the victim has to first state that they don’t want to be tracked in order for GPS stalking to be punishable by the law, it does clearly state that it is illegal to use “a computer, the Internet, text messaging, or any other electronic means.”

GPS Stalking Legislation on the Table

There are two pieces of legislation currently in the spotlight. Following the lead of Jackie’s Law, Sen. Charles Shumer, D-New York, is promoting a bill that would make any form of electronic stalking illegal nationwide. Concern of the bill is the same concern mentioned in regards to Jackie’s Law. Specifically, enforcement becomes an issue if someone doesn’t know they are being GPS stalked. In addition, attorney Peter Pullano stated that if such a bill becomes law, it would have to be constantly amended to keep up with the changing face of technology.

Another piece of legislation that relates to one of Shumer’s motivations in proposing his legislation aims more specifically at apps that offenders are using to track their victims. Sen. Al Franken, D-Minn., has introduced the Location and Privacy Act to address the fact that there is no federal law banning apps that seem directly related to GPS stalking. While some of these apps claim to be aimed at parents who want to keep track of their teens, other apps make no attempt to hide the fact that they are advertising to men or women who fear their partner is being unfaithful. One such firm even advertised, “total control of your partner’s phone without them even knowing it.”

In many cases, the offender gives the phone to their partner with the app already installed, but in some cases, they will secretly install the app on the victim’s phone. Either way, Franken considers it an invasion of privacy and tantamount to GPS stalking. Critics of the legislation point out that while some apps definitely seem to be aimed at stalking, other apps offer legitimate GPS services, including apps limiting the use of phones of teen drivers or to monitor people with early-stage dementia.

Robert Atkinson, president of the Information Technology and Innovation Foundation was quoted as saying, “Congress could and should ban the marketing and sale in the United States of apps advertised and marketed as stalking apps, but that would not prevent would-be stalkers from using a legitimate tracking app for off-label purposes.”

Given the domestic violence statistics and the facts that GPS stalking may have even been responsible for offenders being able to find their murder victims, it is clear that the threat needs to be addressed beyond current law. However, it seems that the considerable “gray area” will need to be explored before proposed legislation is going to be as effective as it needs to be.

Police Body Cameras Subject of Debate in Utah

police body camera debate

Photo: Glogger/Wikimedia Commons

Two recent cases in Utah where deadly force was applied by police officers have raised questions about the use of police body cameras. In both cases, it has been determined by the Salt Lake County District Attorney’s Office that the use of deadly force was justified. This decision was made largely as a result of the fact that both officers were wearing body cameras at the time of the shootings and it was possible to evaluate their actions. While many have wondered if a national policy regarding police body cameras could have alleviated problems in the aftermath of the Ferguson, MO, incident, others are concerned about the potential implications of such a requirement.

Police Body Cameras in Utah

Two separate cases in Utah have made considerable news: the fatal shooting of Dillon Taylor and nonfatal shooting of Timothy James Peterson. While footage remains to be released regarding the Taylor incident as the result of a pending investigation, the officer in the Peterson case has been cleared as a result of the body camera he was wearing and inflammatory statements made by Peterson previous to the shooting.

In a recent Utah poll, 83 percent of Utahns stated that they strongly or somewhat agree with police body cameras or some other device that would record the officers’ interactions with the public. Currently, 145 Utah officers are wearing the cameras with 114 more scheduled to get them in upcoming months. However, the state’s largest police department, the Unified Police Department, currently prohibits police body cameras, even if an officer has purchased one on his/her own.

According to Salt Lake County Sheriff Jim Winder, who oversees the Unified Police Department, he isn’t against them. He just believes they shouldn’t rush to equip every officer with a camera without making sure they have policies in place regarding privacy concerns and how the footage will be used.

“I think they promote better customer service,” Winder said. “I think they promote liability reduction for the agency. The reason to have them is not just to protect the cop.”

Pros and Cons of Police Body Cameras: Can Big Brother be a Good Thing?

Utah isn’t the only state mulling over the use of police body cameras. In a recent panel discussion on the topic, San Diego Police Chief Shelley Zimmerman stated that their goal was to have all 1,800 San Diego patrol officers equipped with body cameras by the end of 2015. However, as opposed to Utah where the footage from police body cameras is available to the public through the state’s public records law, California has chosen to only release records through the court system. Zimmerman said she would reconsider her stance if public safety was at stake, such as in the case of the Ferguson, MO, shooting. The public safety isn’t the only listed benefit of police body cameras. In addition to transparency, Zimmerman believes the use of body cameras can help restore public confidence in police.

Another benefit to the cameras directly links to the Ferguson incident, but a quick YouTube search of the term “racial profiling” indicates Ferguson wasn’t the only incident where law enforcement officers have been accused of this type of behavior. The behavior by some people to treating other people differently based on their race could be affirmed or acquitted regarding police actions if police body cameras were employed more regularly. Questions of abuse of power or unnecessary use of force could also be addressed. In September, the U.S. Border patrol stated that it would start testing body cameras on their agents as a result of numerous complaints.

Another benefit that was addressed at the San Diego panel was the fact that many situations that start as hostile become calmer once a suspect knows he/she is being filmed. Even though police officers are not required to notify an individual that they are wearing a body camera, many have found it to their advantage in tense situations. “[N]umerous officers have indicated they were glad they had them,” Zimmerman said.

While police body cameras can also be beneficial tools in officer training, one of the concerns regarding the cameras is that they would be used as part of performance evaluations. Another concern is that while many newer officers approve of using the cameras, many veteran officers are struggling with adapting to the technology, especially considering that many departments only require the officers to turn it on when dealing with individuals, something veteran officers may forget to do.

Other concerns relate to privacy and how the video might be used. For example, even though videos of failed sobriety tests are prevalent online, it is generally agreed that such video shouldn’t be used to make people look foolish. Also, this video could be used out of context. An example was used of an officer entering a home where child abuse may be reported. A house may look messy because of time of day or the child has been playing, but even though no abuse may be apparent, this type of video evidence of “unfit living conditions” might be misused in divorce proceedings.

The Future of Police Body Cameras in Utah

Sheriff Winder has raised other questions regarding the use of police body cameras that he feels need to be addressed before implementing a program with the Unified Police Department, questions such as how long video records need to be kept, how they are classified, and how editing will occur. Cost will be another issue.

In order to address some of these issues, Winder has assembled a panel to study the use of police body cameras, including police officers, members of the community, and at least one person who has admitted to being “anti-police.”

Winder believes it is best to thoroughly research this before implementation in order to avoid a civil lawsuit. He referred to an article from the U.S. Department of Justice which included a letter from the Police Executive Research Forum which stated, “The decision to implement body-worn cameras should not be entered into lightly…once the public comes to expect the availability of video records–it will become increasingly difficult to have second thoughts or to scale back a body-worn camera program.”

Utah Aiding and Abetting Case Examined by SCOTUS

Supreme Court Examines Aiding and Abetting

Photo: Miroslav Pragl/Wikimedia Commons

In a 2007 Utah case of a drug deal gone bad, the facts have been unclear since the beginning. However, what is known is that one of the defendants was charged with possessing drugs with an intent to distribute, possessing ammunition as a felon, and a firearms charge revolving around either discharging the weapon or aiding and abetting the use of one (although this delves into murky waters again, as it was unclear who actually fired the weapon or had knowledge of it).

These charges led to a sentence of 48 months in prison, plus an addition mandatory sentence of ten years for the firearms charge under Federal law. This conviction was appealed on the basis that the trial judge erroneously instructed the jury regarding the aiding and abetting aspect of the crime, but the Denver-based 10th Circuit Court of Appeals agreed with the trial court, and the case of Rosemond v. United States continued on to the U.S. Supreme Court in November of 2013.

Who’s on First, and Who Shot Whom? The Case at Hand

In 2007 in Tooele, Utah, Justus Rosemond, a previously convicted felon, and two others were attempting to sell a pound of marijuana in a deal set up by one of Rosemond’s accomplices. Upon arrival at the scene of the crime, the potential buyers inspected the marijuana and then assaulted one of Rosemond’s accomplices and ran. Shots from a 9mm were fired at the thieves, and the would-be-drug dealers gave chase.

Those are the only facts not being disputed. After this point, the details get fuzzy. Regarding the shots fired, testimony was unclear as to who did the actual shooting. Immunity was given to both of Rosemond’s accomplices in exchange for their testimony (but not to the convicted felon Rosemond), but while one of the suspects claimed it was Rosemond, the other said her back was turned and she didn’t see who it was–a change from her earlier statement. Even the testimony of a witness was inconclusive.

These details were considered irrelevant by the prosecution who tried Rosemond under one of two theories, either A) he was the actual shooter, or B) he was guilty of aiding and abetting the drug crime because he knew a gun was used. Notice the last part, “he knew a gun was used.” When the jury brought back a guilty verdict, it was a “general verdict,” meaning that they did not state under which theory they convicted him.

So What Actually Constitutes Aiding and Abetting?

Rosemond didn’t appeal any of the convictions except for the firearms charge which added a mandatory ten years to his sentence. The reason for this mandatory sentence can be found under U.S. Code 924(c), which essentially states that if a weapon is used in the furtherance of a drug crime, someone guilty of aiding and abetting that crime is as guilty as the person who used the gun.

However, in the response from the Supreme Court, they stated that in order to be found guilty of aiding and abetting, the government must prove “that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.”

This “advance knowledge” is different than the prosecution and judge’s direction to the jury that he would be guilty of the aiding and abetting if he “knew his cohort used a firearm in the drug trafficking crime.” The defense maintained that he needed to have acted intentionally “to facilitate or encourage” the firearm’s use.

When the case was taken to the 10th Circuit Court of Appeals, they agreed with the district court, even though they stated other Circuit Courts had found along the same lines as the defense. They justified this by stating that previous cases in their circuit had already established precedence in this matter.

While the prosecution stated that even if Rosemond didn’t have advanced knowledge that a gun would be used, the fact that the crime continued (via the car chase) after shots had been fired contributed to their argument that the Rosemond facilitated or encouraged the use of the firearm. According to prosecution, he knew that a gun was used, making him guilty of aiding and abetting.

There were various other arguments on both sides of the issue, and when the case was presented to the U.S. Supreme Court, both the defense and the judges raised various scenarios to establish whether or not aiding and abetting applied in this case.

Ultimately, the Supreme Court found that the circumstances surrounding Rosemond’s case did indeed satisfy certain requirements of 924(c), specifically that he acted with intent to bring about the drug trafficking crime and make it successful “with full knowledge of the circumstances constituting the charged offense.” However, they maintained that the instructions to the trial court jury were erroneous in this issue because “they failed to require that Rosemond knew in advance that one of his cohorts would be armed … to decide whether Rosemond knew about the gun in sufficient time to withdraw from the crime.”

In March of this year, the Supreme Court remanded the case back to the Court of Appeals to determine whether or not this objection was properly preserved and whether the error in instructions was sufficient to cause harm to the final verdict.