South Florida criminal defense attorney Richard Ansara was recently interviewed by the South Florida Sun Sentinel for an article about a proposed Florida bill that would increase the severity of stalking offenses involving the unauthorized use of wireless tracking devices. As a criminal defense lawyer representing South Florida clients accused of domestic violence, Richard Ansara is uniquely qualified to weigh in on proposed legislative change.
As it stands, F.S. 934.425 outlaws the unauthorized installation of tracking devices or tracking applications – including surveillance software on phones. With very few exceptions, you cannot install a tracking device on someone’s phone, computer, car, person, etc. without their consent. To do so is a second-degree misdemeanor, punishable by up to 60 days in jail and a $500 fine.
A new Florida bill would bump the offense up to a third-degree felony, which would make it punishable by up to 5 years in prison and a $5,000 fine.
Proponents of the law say the current law gives police little power to properly investigate complaints because they lack the authority to obtain a search warrant per F.S. 933.02 that could help ascertain who bought the device, downloaded the software, or is using the tracker to keep tabs on a victim. If the offense of unauthorized tracking were increased to a felony, then police would have greater authority to obtain a search warrant.
A big problem Criminal Defense Lawyer Richard Ansara has with that is it addresses the wrong thing. If the only reason to make unauthorized use of a tracking device a felony as opposed to a misdemeanor is so that police can obtain search warrants, it begs the question: Why not modify the law on search warrants? Why should the penalty for unauthorized use of a tracking device be substantially greater than for an actual physical assault on someone?
As Ansara told The Sun Sentinel:
“People do desperate things in relationships, specifically when they are trying to determine whether infidelity is occurring. Some may decide to drop an AirTag in a spouse’s vehicle and or clothing to try to get to the bottom of what is happening in their relationships. Is this correct behavior? No.
“Should this behavior be punished more harshly than someone who straight up punches their spouse in the face? Absolutely not. That person would only be charged with a misdemeanor battery.”
Nonetheless, the proposed bill has cleared five state legislative committees, receiving unanimous support. The state Senate version just needs to get through the Rules Committee before it can continue for a vote by the full state legislator. If it passes there, it will go to Governor Ron DeSantis. If he signs it, the measure would become law by Oct. 1st.
Lawmakers supporting the measure say action is needed because technology has made it so much easier to stalk and track people without their consent through digital means. An Apple AirTag, for example, costs about $30. A strong punishment would serve as a powerful deterrent, they said. Yet Apple does already have a feature that alerts its smartphone users that they’re being monitored with an AirTag.
There are other devices using GPS, Wi-Fi, Bluetooth, and Ultra-Wideband tech that might not be as easily discoverable. In fact, some devices are expressly advertised as a means of clandestine monitoring (which seems like a potential product liability issue for the manufacturer, but that’s a blog for another day).
Still, consider that this law would put unauthorized placement of a tracking device on the same level of severity as:
- Sexual battery
- Drug trafficking
- Child abuse or neglect
- DUI with serious bodily injury
- Aggravated battery
And even with some of the exceptions outlined, there is concern that someone who never intended to stalk someone could unintentionally end up tracking someone and catching a felony case. For example, a parent could lawfully place a tracker on a minor child’s device without their knowledge or consent. But once that child is 18, that same device in place without the minor’s consent opens the door to a felony charge against the parent.
The bill does say that while a person can put as many tracking devices as they want on their own belongings (which may include those shared with their spouse), that implied consent would be revoked if one party filed for divorce or an injunction for protection against the other.
Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Additional Resources:
Is a device tracking you without your consent? Florida bill would make that a felony, Jan. 31, 2024, By Ron Hurtibise, South Florida Sun-Sentinel
More Blog Entries:
Palm Beach Domestic Violence Defense Lawyer Explains “Prior Bad Acts” Evidence, Jan. 4, 2024, South Florida Domestic Violence Criminal Defense Lawyer Blog