Published June 24, 2013
It's not just the government that can spy on you. Surveillance hardware and software have never been better or more affordable.
What's more, the legal regulations concerning digital privacy are incomplete, inconsistently interpreted, and lag behind the rapid pace of technological advancement.
In other words, there's never been a better time to be the spy next door.
The distance between what's possible and what's permissible is vast and ever-changing. How far can you go?
Q goes Retail
Actually buying the necessary spying tech isn't that complicated, as long as you have a few hundred dollars to spend. Did you know, for example, that there's a so-called Spy Store right in downtown Manhattan?
Spy Store sells cameras disguised as dictionaries, alarm clocks, house plants, desk lamps, teddy bears and sunglasses, all between $95 and $300 depending on the camera's resolution.
It also sells a GPS tracker, the MICROtracker, that's only about 2 inches across, making it easy to hide even on a person's body. The tracker can send text updates about its location throughout the day. That'll cost you $295.
We're talking James Bond-level realness here. Maybe not Daniel Craig's Bond, but definitely Roger Moore, at the very least.
Spy Store's customers come in all shapes, sizes and situations.
"Husbands, wives, lawyers, doctors, business partners, it goes on and on," said Bob Leonard, Spy Store's owner.
At one point in the conversation I referred to Leonard's wares as "listening devices."
"Recorders," he corrected me. "Listening devices sounds surreptitious. It's a recorder. There's a million reasons to have a recorder on you and if you're part of the conversation [being recorded] there's absolutely nothing wrong with that."
He went on to tell me about a volleyball coach at a local New York City high school who was verbally abusing the high school girls on his team. One of the girls recorded him at practice, and the coach was subsequently fired.
Spy Store has a wide array of recorders, body wires, cameras and GPSs. But they don't sell computer spyware or other types of surveillance software for either personal computer or phone, which is not only harder to use, but also less protected under the law.
Spy Store also offers customer consultations. "We don't generally ask questions because that's not our business," said Leonard, adding that many of these customers are in distress and seeking help.
"A lot of people come in here and I tell them, the biggest thing they did was walk through that door, and they had the courage to do that. And [whatever they have to say] it'll never be something I haven't heard before, that's for sure."
[See also: Spy App Can Turn Smartphones Against You]
A License to Spy
As is always the case with technology and the law, it's really, really complicated.
The Fourth Amendment protects against unreasonable searches and seizures, but its wording specifies that it's talking about government agents. The amendment doesn't apply to private citizens performing the searching and seizing.
Laws pertaining to civilian surveillance vary from state to state, but in general they're supposed to take into account two things: a reasonable expectation of privacy, and the intent of the observer.
That's all well and good in theory, but it's easy to see how in practice, interpretation of these two strictures can vary widely.
In those cases, it's up to state and federal legislative bodies to figure out where the line is when it comes to domestic surveillance.
Family law attorney Randall M. Kessler encounters these issues all the time, particularly in divorce cases.
In Georgia, where Kessler practices law, it's legal to install "nanny cams," hidden cameras to make sure babysitters are treating children well, and other cameras to prevent a crime. But installing cameras to spy on people is not legal.
"So of course everyone always says they were trying to prevent a crime," Kessler said.
Kessler gave an example: "If my wife is home she doesn't expect that I'm watching her. But what if I have a nanny cam [set up] and I happen to see my wife with her boyfriend? That area of the law is in flux. There are two completing balances: one is my wife's right to be home and expect that she can do what she wants privately, versus my right to know what's going on in my house and if anyone's abusing my children."
In New York state, recording a conversation is legal if one party consents to it. That means that you can secretly record anything anyone says to you without their consent or even knowledge.
In California, Texas, Virginia and Minnesota, it's considered a misdemeanor to place a GPS on someone's car without that person's permission. Computer surveillance software is a different issue. In 2010, a Texas man was acquitted for putting surveillance software on the computer his then-wife was using during their divorce proceeding.
Cindy Southworth, vice president of development and innovation at the National Network to End Domestic Violence, says that domestic surveillance becomes illegal when it becomes systemic.
"If you walk by once and hear something versus if you walk by every day for a year, that's a very difference. It's what differentiates domestic violence and stalking from other things. It's a pattern of behavior."
With technology getting better, cheaper and more available at an extremely rapid pace, it's almost impossible for regulators to keep pace. However, "the law is starting to catch up," said Hanni Fakhoury, an attorney at the Electronic Frontier Foundation, a California-based nonprofit advocate for digital rights. "Policy makers are starting to realize there's a problem and they need to take steps…They're mostly focused on [regulating] law enforcement."
Southworth believes that most electronic surveillance should be considered illegal under existing law — it's just a matter of interpreting the law more broadly to encompass the technology that has arisen since the law was written.
"If you are using spyware to monitor your partner's computer activities there may not be a specific law that spyware is bad, but it's illegal to wiretap, it's illegal to eavesdrop."
Fakhoury offers a different perspective.
"Physical stalking laws were really intended to punish physical acts separate and apart from speech," he said. Digital stalking is quite different — while a person being digitally stalked does feel a fear for physical harm or injury, the person doing the stalking is not physically present and might be acting solely through speech.
"We need to avoid making faulty analogies that don't actually work," he said.
Further complicating the issue is the fact that surveillance equipment can be used for a lot more that secretive observation. Many companies just choose to market it that way because it attracts attention, stirs controversy, and plays into the spies-and-Big-Brother narrative that we've grown up watching and reading and listening to.
Consider, for example, the GPS Shoe. As the name suggests, this is a shoe with a GPS tracker in the sole. But it's not for spying — instead, the shoe is marketed as a device to help people with Alzheimer's. People with this neurological disease tend to wander off and then forget where they are, so the GPS Shoe helps their family members keep an eye on them.
I know you're no good
Infidelity is the single most cited reason for domestic surveillance. "It's either heartache or money in any regard," Leonard said.
Kessler says he frequently encounters clients who've used illegal methods to surveil their significant others. "The truth of the matter is if your spouse is cheating and law tells you it's illegal to hack their email, people weigh the costs and decide that it's worth it."
"My job is to advise clients what the law is and let them make their own decisions. Yeah, there are times when I think it's appropriate to put up a camera."
One thing Kessler tells clients, particularly those whose cases revolve around allegations of domestic abuse, is to carry their smartphones with them at all times and record video whenever possible.
Kessler also occasionally recommends that clients consult with professional surveillance experts or private investigators.
The law prevents Kessler from engaging with illegally obtained materials.
"I can't be a party to a crime," he explained. "In other words, if someone comes to me and says I used this spyware on my computer and found this [evidence], I can't listen to it, I can't use it. That's always a tough conversation. I know if I say I can't use it they can fire me and go hire another lawyer and not tell that lawyer where they got [the evidence] or how they got it. There's a lot of gray area."
When emotions run high in cases of relationships, infidelity and heartache, it's easy to see how surveillance devices can be put to extremely dangerous use. Even when domestic surveillance is clearly illegal, not all digital privacy invasions are created equal. Where does a suspicious spouse or lover cross the line into stalking, harassment and abuse?
In Southworth's experience, the marketing surrounding surveillance devices influences the way they're used. Companies that market their products as domestic spying tools, Southworth said, "are encouraging husbands and boyfriends to stalk. They've developed software to facilitate crime, and abusers and stalkers are buying that software to then commit crimes."
"What's disheartening and really repulsive is the number of apps and websites that are devoted to teaching you how to stalk. They don't even pretend [otherwise]. If you search 'how to stalk your spouse' on the Internet you'll get hundreds of thousands of responses."
Leonard believes that the majority of his customers surveil for legitimate, legal reasons. "The reasons people buy this equipment is usually benign…but on the other hand people don't come in [to my store] and say 'I'm a gangster' or 'I'm a pervert.'" Leonard added that the people who use surveillance equipment for "non-benign" purposes probably wouldn't want to walk into a store, and are more likely to purchase their tools online.
It's not as if gangsters and perverts are using different types of equipment, however. The surveillance devices themselves aren't illegal; it's just that would-be criminals can easy put them to illegal use. [See also: IT Worker Admits Hacking Webcam, Spying on Female Colleagues]
Self-surveillance and countersurveillance
In today's hyperconnected society, sometimes we all but invite surveillance. For example, one of Kessler's former clients, believing her husband was cheating on her, went into his car and looked at the previous destinations on the onboard GPS. It turned out the address he'd plugged in the night before was a hotel — not the place he'd told her he was going.
The client was able to gather digital proof of her husband's whereabouts without setting up any surveillance equipment — she used his own digital trail against him.
"It was pretty basic, but pretty smart," Kessler said. "It's sort of fun seeing how clever people can be."
"A lot of [self-surveillance] is done voluntarily," Fakhoury told TechNewsDaily. "You check in on foursquare or you upload tons of pictures. If you take a picture with an iPhone that picture has your location in it. Now when you upload it to Facebook, Facebook will scrub it of that metadata, but not every website does."
But say you've verified all your online privacy settings and cleaned up your digital data trail as much as possible. What do you do if you think you're still being spied on? [See also: Smart Electric Meters Can Spy on Homes]
Kessler: "If you think [your husband is] reading your emails then you ought to write an email to a fake boyfriend and say, 'I'll meet you at Joe's bar tonight at 9 o'clock' and then stake out Joe's bar and see if your husband shows."
Kessler also recommends that his clients get new cellphones. "Don't just change your number, change your phone account. New email, new number, new secret questions." In more extreme cases, he advises clients to get a professional to sweep their home for listening devices.
Legally licensed private investigators can perform these sweeps. Places like Spy Store also offer them. Leonard told me about a recent sweep he performed on a New York City company's executive boardroom that turned up multiple devices.
He didn't remove the devices, however. Leonard explained that if the devices were governmental, then removing them would be an illegal interference with government investigations. So instead, he installed a second hidden camera trained on the original devices' location that would record anyone who came to retrieve or fix them.
Southworth also points out that digital surveillance devices can backfire on their owners. "Ironically, the very tech that can be misused by offenders can also be the best witness when you go to court...now that we have offenders that are using technology to facilitate their crimes — there's a beautiful digital trail."
"So I frequently tell abusers if you're going to abuse and stalk your partners, please do it on some tech platform where we will have irrefutable digital evidence."