What is Stalkerware and is it Illegal in Florida?

January 20, 2022 Don Pumphrey, Jr. Criminal Defense, Sex Crimes, Social Media Social Share

As technology continues to expand, so do the ways that hackers can break into your devices. Previously, people who wanted to secretly gain information from their victims would do so through physical methods such as stalking. However, in more recent years these methods have modernized into forms of technical stalking.

One specific form of spyware, called “stalkerware,” is being used more frequently. Stalkerware can seem confusing, mainly because it can have benign uses. For example, some forms of this software are often used by parents checking on the well-being of their kids or by spouses who fear their partner is cheating on them. However, it is classified as “riskware” meaning it is seen as potentially dangerous software. 

Part of the danger comes from the secrecy that is an essential part of this software as well as its ability to conceal itself from the user. That means you may never be aware of its existence and that someone you know—or someone you don’t—has gained physical access to your phone to gain access to your data and personal information. This poses some important questions. Is stalkerware illegal? If so, are there any exceptions?

This page will provide information on stalkerware and how it works, possible penalties for legal violations, and additional charges relating to crimes against digital devices.

Stalkerware vs. Spyware

Spyware is a type of malware (malicious software) that has the purpose of collecting data from a device to pass along to third parties. This can happen without the device owner’s knowledge or consent. Spyware can end up on a person’s computer or cell phone through malicious links, downloads, third-party interceptions, or other methods. According to Nord VPN, spyware runs in the background (usually secretly) to gather information from the device’s hardware and browsers.

To read more about spyware and the different ways unwanted content can be downloaded to your digital device, refer to our blog post here.

Stalkerware is a form of spyware. It often refers to tools, such as specific apps or other software, that allow another person to monitor or record information about a person’s phone activity. Stalkerware can be used for ethical purposes, such as parents tracking their children with cell phones. However, when it is done without the device owner’s knowledge or consent, it is considered extremely invasive—and in most cases, can be illegal.  NordVPN defines the two types of stalkerware categories:

1. Dedicated Stalkerware – Often advertised and sold as spyware, some costing hundreds of dollars to receive full access to the target’s device. These types of apps will run in “stealth mode” that can prevent the device owner from noticing it.
2. ‘Dual-Use’ apps as stalkerware – Free, easy to install apps such as “Find My Friends” or “Google Maps.” Dual-use apps can give away the device owner’s location. However, these types of apps won’t necessarily grant access to the device’s photos or messages. However, these apps can also make it difficult for the user to detect any signs of “stealth activity” or other potentially invasive usage.

Dangers of Stalkerware

There are several reasons why stalkerware is concerning. First, your privacy is being violated, possibly even without your knowledge of its existence. Cybercriminals who use stalkerware may attempt to blackmail you, stalk you, or harm you—which, we should note, can all result in additional criminal offenses.

Stalkerware tools are not only intrusive but can be dangerous when they are used by someone to access your photos, videos, browser history, messages, calls, and location. According to Techsafety.org, a website that explores technology in the context of intimate partner violence, sexual assault, and violence against women, spyware “installed on rooted [for Android] or jailbroken [for iPhone] devices can allow someone to turn on the webcam or microphone, take screenshots, see activity on third-party apps [such as Snapchat or WhatsApp], and intercept, forward, or record phone calls.”

Regardless of the kind of phone you have, the majority of stalkerware requires the person to have physical access to the device upon which they are attempting to install the app or program. Although this may pose a significant hurdle for hackers, once the program is installed, it runs on “stealth mode,” meaning that it does not notify the user that it is running and is often difficult to even detect, let alone remove.

How Stalkerware Works

The following lists some methods stalkerware apps use to covertly collect information from a person’s cell phone or digital device:

• View text messages;
• View social media and other messaging apps such as WhatsApp, Telegram, Signal, and so on;
• View contact lists;
• View cell phone call history;
• View sent and received emails;
• Collect information from calendars, such as upcoming events or meetings;
• View photos and videos stored on device;
• Track web history;
• Track current or recent movement via GPS;
• Take screenshots and front-camera photos.

According to a study by the Kaspersky Security Network, around 33,000 of their users reported their devices were affected by stalkerware. However, this is much lower than 2019 and 2020—with 67,000 and 54,000 users affected in those years, respectively. While it appears that the numbers have gone down, Kaspersky notes that the downturn is partially due to the pandemic. Further, The Coalition Against Stalkerware estimated that the overall number of affected users could be 30 times higher than the number of confirmed cases.

How to Tell if Your Devices Have Stalkerware

According to Norton, there is a legitimate and thriving industry for spying on others via spy software. However, there are some tell-tale signs to suggest that a person’s device is being tapped, tracked, or monitored:

• Unusual sounds during phone calls, such as clicking noises, static, or distant voices in the background;
• Decreased battery performance;
• Device showing activity when not in use, or rebooting without reason;
• Device takes a long time to shut off;
• Device’s temperature feels extremely warm or overheated;
• Device receiving unusual text messages containing symbols, numbers, or random characters; or
• Unexplained increases in data usage.

Penalties for Offenses Against Electronic Devices

Florida law provides that an individual who puts stalkerware on another person’s electronic device can face criminal liability.

Florida Statute Section 815.06 explains that an individual commits an offense against a user, meaning a person with the authority to operate or maintain a computer, computer system, computer network, or electronic device, if that individual willfully, knowingly, and without authorization or exceeding authorization does one or more of the following:

1. Accesses or causes to be accessed any computer, computer system, computer network, or electronic device with knowledge that such access is unauthorized or the manner of use exceeds authorization;
2. Disrupts or denies or causes the denial of the ability to transmit data to or from an authorized user of a computer, computer system, computer network, or electronic device, which, in whole or in part, is owned by, under contract to, or operated for, on behalf of, or in conjunction with another;
3. Destroys, takes, injures, or damages equipment or supplies used or intended to be used in a computer, computer system, computer network, or electronic device;
4. Destroys, injures, or damages any computer, computer system, computer network, or electronic device;
5. Introduces any computer contaminant into any computer, computer system, computer network, or electronic device; or
6. Engages in audio or video surveillance of an individual by accessing any inherent feature or component of a computer, computer system, computer network, or electronic device, including accessing the data or information of a computer, computer system, computer network, or electronic device that is stored by a third party.

An individual who violates Section(f) and installs stalkerware on another person’s cell phone or other electronic device can be charged with a third-degree felony. If convicted, the penalties carry up to a $5,000 fine and up to 5 years in prison.

The offender may be charged with a second-degree felony if any of the following occurs:

1. Damages a computer, computer equipment or supplies, a computer system, or a computer network where the damage or loss is at least $5,000;
2. Commits the offense for the purpose of devising or executing any scheme to defraud or obtain property;
3. Interrupts or impairs a government operation or public communication, transportation, or supply of water, gas, or other public service; or
4. Intentionally interrupts the transmittal of data to or from, or gains unauthorized access to, a computer, computer system, computer network, or electronic device belonging to any mode of public or private transit.

If convicted, the penalties for a second-degree felony carry up to a $10,000 fine and up to 15 years in prison.

The offender may be charged with a first-degree felony if the violation:

1. Endangers human life; or
2. Disrupts a computer, computer system, computer network, or electronic device that affects medical equipment used in the direct administration of medical care or treatment to a person.

If convicted, the penalties for a first-degree felony carry up to a $10,000 fine and up to 30 years in prison.

Related Offenses and Penalties

The installation of stalkerware can also lead to charges for additional crimes. For example, having access to the user’s private photos or other sensitive information may lead hackers to extort their victims. One form of extortion that has grown in relevance is known commonly as “sextortion.”

Sextortion entails extorting or blackmailing someone by threatening to distribute their private or sensitive material if they do not meet their hacker’s demands, which often include providing the hacker with more photos, sex, or money. If you would like to read more about Florida’s sextortion law, the penalties associated with it, and recent cases of it in Florida, you can do so here.

Florida Statute Chapter 815 prohibits individuals from willfully, knowingly, and without permission modifying or destroying computer data, programs, or any documentation within it. Under Florida Statute Section 815.04, it is considered a third-degree felony to commit any offense against intellectual property. Such offenses in include willfully, knowingly, and without authorization introducing a computer contaminant, modifying, rendering unavailable, destroying, or disclosing or taking data, programs, or supporting documentation that exists internal or external to a computer, computer system, computer network, or electronic device. If the offense was committed for devising or executing a scheme to defraud, it is then considered a second-degree felony.

Installing tracking devices or applications is prohibited under Florida Statute Section 934.425, which states that a person may not knowingly install a tracking device or tracking app onto another person’s property without their consent. A violation can result in a second-degree misdemeanor. However, it is important to note that this excludes law enforcement tracking a criminal investigation, parents or legal guardians of minors, or a caregiver of the elderly or disabled adult to ensure their safety.

Employers & Stalkerware

During the surge of the COVID-19 pandemic, many employees found themselves switching from going into work to working remotely from home. As a result, employers have utilized software that allows them to track their employees’ work when they are working remotely through a virtual private network (VPN) or limited internet access. Most often, the employee consents to this monitoring, which results in their employer having the ability to monitor them when they are working. But when does such monitoring cross a line that can lead to legal repercussions? The answer is when the employee does not give their consent and the monitoring is no longer for work purposes but to spy on the individual. An employer found to have engaged in this kind of monitoring through stalkerware can face both criminal and civil repercussions.

Tallahassee Criminal Defense Lawyer

If you or a loved one are facing charges relating to stalkerware, it is imperative you contact an experienced Tallahassee criminal defense attorney as soon as possible. Don Pumphrey and the members of the legal team of Pumphrey Law Firm have decades of criminal defense experience and will explore every possible defense applicable to your case. Contact Pumphrey Law Firm today at (850) 681-7777 or send an online message to discuss your case during an open and free consultation with an attorney in our legal team.

Written by Karissa Key

Article updated on September 12, 2023

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