While stalking is certainly not a new form of intimidation and abuse in a current or former romantic relationship, the way it is done is constantly evolving.  GPS stalking is a growing trend. 

GPS Stalking: The State of the Law in New York

In 2014, the Governor of New York signed Jackie’s Law, which made tracking someone’s whereabouts by GPS part of the list of acts that amount to stalking in the fourth degree – a criminal offense.  Unfortunately, if you believe someone is stalking you by GPS in New York, there are several steps you have to take before the criminal justice system can offer you relief. First, you must clearly inform your stalker that you do not wish to be tracked by GPS.  After that, you have to prove that the stalker continued to track you, in spite of your request. Stalking in the fourth degree is a misdemeanor offense and, if convicted, a person can be ordered to serve up to three months in jail and pay $500 in fines.  Many critics have argued that Jackie’s Law does not go far enough to protect victims of GPS stalking and puts an unfair burden on the victim.

GPS Stalking: Legal Options

GPS Stalking is a criminal offense.  As such, if you can go to your local precinct and file a police report or, in some instances, you can bring a family offense petition against your stalker. To bring a family offense petition in Family Court, it is necessary that you have an “intimate relationship” with the offender.  An intimate relationship includes members of your family or household, but can also apply to other sorts of close relationships.  If you and the offender are legally married or divorced, have a child in common, are related by marriage, are related by blood, reside or resided in the same house, or are or were in an intimate relationship, a court will likely consider you to have an intimate relationship with the offender.  Intimate relationships are not necessarily sexual in nature and do not need to be current.  For example, a person you once dated or your roommate might be considered an intimate relationship but your co-worker would not.  While there is no hard and fast line governing the definition of an intimate relationship, courts consider the nature or type of your relationship, how often you see or saw each other, and the duration of the relationship.

There are two important upsides to bringing your action in family court.  First, family court records are private and not open for public inspection.  If you are worried about the allegations in your family offense petition making their way onto a public e-filing system, family court is the best way to avoid that.  Second, if you want to bring a family offense petition but are concerned for your safety, you can ask that your address remain confidential by completing an address confidentiality affidavit.

Some counties have their own laws further governing the use of GPS devices. Suffolk County laws, for example, provide that:

No person shall install or place an electronic tracking device in or on a motor vehicle within the County of Suffolk without the knowledge and consent of all owners of the motor vehicle or track the location of a motor vehicle with an electronic device tracking device within the County of Suffolk without the knowledge and consent of all owners of the motor vehicle.

GPS Stalking: Bringing an Action in Family Court

Once your family offense petition has been accepted for filing in Family Court, you will go before a judge or referee who will review your petition and listen to your allegations.  The person who you have brought the family offense petition against, the respondent, will not be present in the courtroom or at the courthouse.  After hearing your story, the judge or referee will determine whether to issue a temporary order of protection and will set a date for your next appearance.  If you receive a temporary order of protection, you must have it served on the respondent.  You cannot serve the respondent with the order of protection yourself.

Temporary orders of protection can and often contain many of the same restrictions as a final order of protection.  For instance, you can ask that the respondent be ordered to stay away from your home and/or workplace and refrain from communicating with you and others.  Temporary orders of protection are only valid until the following court appearance and must be extended at each subsequent court date.

It is important that you show up to your next court date or your temporary order of protection will no longer be in effect and your case will be dismissed.  The respondent should also be present at your second court date, but if they are not, the court can consider your allegations and issue a final order of protection without the respondent being present.   If you are both present, the respondent will either consent to an order of protection or the judge or referee will set a date for a trial.

At the trial, both parties present their facts to the judge or referee.  This is your opportunity to tell your side of the story and show the judge or referee your preserved evidence.  The respondent will also tell their side of the story and present evidence of their own.  At the conclusion of the trial, the judge will decide whether to issue a final order of protection.

GPS Stalking: What Happens When a Judge Determines I’ve Proven the Allegations in My Family Offense Petition?

If, after a fact-finding hearing is held, the judge determines you have proven your allegations, a dispositional hearing is held. At a dispositional hearing, the judge will issue an order which may 1) suspend judgment for up to six months; 2) place the offender on probation for up to a year and require they participate and pay for a batterer’s education program and potentially alcohol or drug treatment; 3) require the offender pay up to $10,000 in restitution; and/or 4) issue a final order of protection which can last up to two years.  If the judge finds there are aggravating circumstances, they may issue a five-year order of protection.

GPS Stalking: What Happens if the Protection Order is Violated?

If you have an order of protection against your offender and they violate it, they can be sentenced to up to six months in jail for each violation.  The court may also suspend or revoke the person’s license to carry a gun.

On February 16, 2022, New York State Attorney General, Letitia James issued a consumer alert about Apple’s AirTag product being used by bad actors to track and follow unsuspecting individuals.  Apple AirTags for example, are tiny tracking devices intended to be used as location finders for one’s personal items such as keys, wallets, or bags.  But what was created as technology to help locate misplaced items is now being used for evil.  Recently, New Yorkers have reported finding unfamiliar Apple AirTags dropped in their purses and pockets as well as attached to their cars.  

How to Remain Vigilant About Unknown AirTags

Attorney General James’ consumer alert provides detailed guidance on steps individuals can take to protect themselves from falling victim to this practice.  We found the tips below to be the most helpful. 

• “Listen for unfamiliar beeping” – AirTags that have been separated from their owners will eventually begin to beep.  Unfortunately, listening for beeping is not a failsafe as altered AirTags are being sold online with disabled speakers that will not emit such a beep.     

• “Watch for ‘Item Detected Near You’ notifications on iPhones” – If you have an iPhone and it has been in close proximity with an unfamiliar AirTag for an extended period of time, you should receive a notification stating “Item Detected Near You.”  If you tap the message, you should be able to enable a sound on the AirTag which will enable you to find it as well as learn more about the device.

• If you do not own an iPhone, download “Tracker Detect” from the Google Play Store.  While this app will not scan for unknown devices automatically, it will enable you to learn more about a device you have recently discovered. 

GPS Stalking: What to Do If You Find an Unknown AirTag

If you have recently been notified about an unknown AirTag, make sure you use the app to learn more information about it before disabling it.  Write down the AirTag’s serial number and any other pertinent information about the AirTag.  Once you have all the information you can find, remove the AirTag’s battery and call local law enforcement. 

New York Consolidated Laws, Penal Law - PEN § 120.45 Stalking in the fourth degree 

A person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct:

1. is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person's immediate family or a third party with whom such person is acquainted;  or

2. causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person, a member of such person's immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct;  or

3. is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person's place of employment or business, and the actor was previously clearly informed to cease that conduct.

For the purposes of subdivision two of this section, “following” shall include the unauthorized tracking of such person's movements or location through the use of a global positioning system or other device.

Stalking in the fourth degree is a class B misdemeanor.

New York Consolidated Laws, Penal Law - PEN § 120.50 Stalking in the third degree

A person is guilty of stalking in the third degree when he or she:

1. Commits the crime of stalking in the fourth degree in violation of section 120.45 of this article against three or more persons, in three or more separate transactions, for which the actor has not been previously convicted;  or

2. Commits the crime of stalking in the fourth degree in violation of section 120.45 of this article against any person, and has previously been convicted, within the preceding ten years of a specified predicate crime, as defined in subdivision five of section 120.40 of this article, and the victim of such specified predicate crime is the victim, or an immediate family member of the victim, of the present offense;  or

3. With intent to harass, annoy or alarm a specific person, intentionally engages in a course of conduct directed at such person which is likely to cause such person to reasonably fear physical injury or serious physical injury, the commission of a sex offense against, or the kidnapping, unlawful imprisonment or death of such person or a member of such person's immediate family;  or

4. Commits the crime of stalking in the fourth degree and has previously been convicted within the preceding ten years of stalking in the fourth degree.

Stalking in the third degree is a class A misdemeanor.

New York Consolidated Laws, Penal Law - PEN § 120.55 Stalking in the second degree 

A person is guilty of stalking in the second degree when he or she:

1. Commits the crime of stalking in the third degree as defined in subdivision three of section 120.50 of this article and in the course of and in furtherance of the commission of such offense:  (i) displays, or possesses and threatens the use of, a firearm, pistol, revolver, rifle, shotgun, machine gun, electronic dart gun, electronic stun gun, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, slingshot, slungshot, shirken, “Kung Fu Star”, dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, dangerous instrument, deadly instrument or deadly weapon;  or (ii) displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm;  or

2. Commits the crime of stalking in the third degree in violation of subdivision three of section 120.50 of this article against any person, and has previously been convicted, within the preceding five years, of a specified predicate crime as defined in subdivision five of section 120.40  of this article, and the victim of such specified predicate crime is the victim, or an immediate family member of the victim, of the present offense;  or

3. Commits the crime of stalking in the fourth degree and has previously been convicted of stalking in the third degree as defined in subdivision four of section 120.50 of this article against any person;  or

4. Being twenty-one years of age or older, repeatedly follows a person under the age of fourteen or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place such person who is under the age of fourteen in reasonable fear of physical injury, serious physical injury or death;  or

5. Commits the crime of stalking in the third degree, as defined in subdivision three of section 120.50 of this article, against ten or more persons, in ten or more separate transactions, for which the actor has not been previously convicted.

Stalking in the second degree is a class E felony.

New York Consolidated Laws, Penal Law - PEN § 120.60 Stalking in the first degree

A person is guilty of stalking in the first degree when he or she commits the crime of stalking in the third degree as defined in subdivision three of section 120.50 or stalking in the second degree as defined in section 120.55 of this article and, in the course and furtherance thereof, he or she:

1. intentionally or recklessly causes physical injury to the victim of such crime;  or

2. commits a class A misdemeanor defined in article one hundred thirty of this chapter, or a class E felony defined in section 130.25, 130.40 or 130.85 of this chapter, or a class D felony defined in section 130.30 or 130.45 of this chapter.

Stalking in the first degree is a class D felony.