Under Florida Statute 934.425, the crime of Unlawful Installation of a Tracking Device or Tracking Application occurs when a person installs a tracking device or tracking software application on another person's property without that
person’s consent. A person may revoke their consent to the installation of the tracking device or tracking software application at any time. Consent to the installation of the tracking device or tracking software application is presumed revoked by operation of law should one of the parties file for divorce or an injunction against the other person.
[1] Notably, because the statute is poorly written, it is only unlawful to install a tracking device or tracking software application on another person's property without consent. Because the statute does not actually make it unlawful to track another
person without their consent, even if they previously consented to the installation but later revoked their consent. Any such prosecution should be challenged as being unconstitutional under the void for vagueness doctrine The crime of Unlawful
Installation of Tracking Device or Tracking Application is a Second Degree Misdemeanor punishable by up to sixty (60) days in jail, six (6) months of probation, and a $500 fine. A judge may sentence a person convicted of Unlawful Installation of Tracking Device or Tracking Application to probation, but may also impose a sentence up to the statutory maximum of sixty days in jail. Defenses to Unlawful Installation of Tracking Device or ApplicationIn addition to the pretrial defenses and trial defenses that can be raised in any criminal case, common defenses to the crime of Unlawful Installation of Tracking Device or Application include: Legitimate Business Purpose ExceptionA person acting in good faith on behalf of a business entity may install a tracking device or tracking software application for a legitimate business purpose. [2] Examples of a legitimate business purpose would be the installation of internet tracking cookies, GPS tracking software on electronics, or GPS tracking devices on business vehicles. Motor Vehicle Owner ExceptionThe owner or lessee of a motor vehicle is not required to obtain consent before installing a tracking device or tracking software application on a vehicle they own or lease during their period of ownership. [3] Void for VaguenessAny criminal statute can be challenged as void for vagueness when it fails to give adequate notice of what conduct is prohibited because of its imprecision, thus inviting arbitrary and discriminatory enforcement. [4] As currently written, section 934.425 only applies to the initial installation of the tracking device or tracking application. However, the statute does not address when a person must remove the tracking device or tracking software, whether a person must stop tracking another person if consent to installation is revoked, or whether a person can continue tracking someone that has filed for divorce or an injunction. Nevertheless, it does not take much imagination to see a person being arrested or prosecuted for refusing to remove a tracking device or tracking software or continuing to track someone even though one of the parties filed for divorce or an injunction. In such prosecution, a person should move to dismiss the charges arguing that the statute does not specifically prohibit such activities and to the extent the statute was intended to prohibit such activities, it is void for vagueness and unconstitutional. Contact Criminal Defense Lawyer Richard HornsbyIf you have been arrested or charged with the crime of Unlawful Installation of Tracking Device or Application in Central Florida or the Greater Orlando area, contact Criminal Defense Lawyer Richard Hornsby today. The initial consultation is free and I am always available to advise you on the proper course of action that can be taken. References
§ 18.2-60.5. Unauthorized use of electronic tracking device; penalty.A. Any person who installs or places an electronic tracking device through intentionally deceptive means and without consent, or causes an electronic tracking device to be installed or placed through intentionally deceptive means and without consent, and uses such device to track the location of any person is guilty of a Class 1 misdemeanor. B. The provisions of this section shall not apply to the installation, placement, or use of an electronic tracking device by: 1. A law-enforcement officer, judicial officer, probation or parole officer, or employee of the Department of Corrections when any such person is engaged in the lawful performance of official duties and in accordance with other state or federal law; 2. The parent or legal guardian of a minor when tracking (i) the minor or (ii) any person authorized by the parent or legal guardian as a caretaker of the minor at any time when the minor is under the person's sole care; 3. A legally authorized representative of a vulnerable adult, as defined in § 18.2-369; 4. The owner of fleet vehicles, when tracking such vehicles; 5. An electronic communications provider to the extent that such installation, placement, or use is disclosed in the provider's terms of use, privacy policy, or similar document made available to the customer; or 6. A registered private investigator, as defined in § 9.1-138, who is regulated in accordance with § 9.1-139 and is acting in the normal course of his business and with the consent of the owner of the property upon which the electronic tracking device is installed and placed. However, such exception shall not apply if the private investigator is working on behalf of a client who is subject to a protective order under § 16.1-253, 16.1-253.1, 16.1-253.4, 16.1-279.1, 19.2-152.8, 19.2-152.9, or 19.2-152.10 or subsection B of § 20-103, or if the private investigator knows or should reasonably know that the client seeks the private investigator's services to aid in the commission of a crime. C. For the purposes of this section: "Electronic tracking device" means an electronic or mechanical device that permits a person to remotely determine or track the position and movement of another person. "Fleet vehicle" means (i) one or more motor vehicles owned by a single entity and operated by employees or agents of the entity for business or government purposes, (ii) motor vehicles held for lease or rental to the general public, or (iii) motor vehicles held for sale by motor vehicle dealers. 2013, c. 434; 2020, c. 140; 2022, cc. 259, 642. |
Is it illegal to track someone without their knowledge
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