A recent news story regarding the disturbing experience of Sports Illustrated model, Brooks Nader, is just one of a number of reports over the past year, that have highlighted instances where the proper use of tracking devices (such as Tile and the Apple AirTag) has been subverted, and the technology has been used instead to intimidate, harass, and stalk.

According to the Crown Prosecution Service (CPS), the average stalking victim experiences 100 incidents before making a report to the police. In this article, B P Collins’ criminal team will first outline the law behind the offences of stalking and harassment, and then consider how advances in technology may be having an impact on the methodology of the perpetrators and the experience of the victims.

What’s the difference between harassment and stalking?

Stalking was made a criminal offence in 2012, following amendments to the Protection from Harassment Act 1997 (“the PHA” or “the Act”).

Section 2A of the PHA makes stalking a specific offence and section 4A of the Act addresses stalking that has caused fear of violence or serious distress. Serious distress is defined under the Act as behaviour that causes a substantial adverse effect on the victim’s day to day activity. This might include behaviour which causes the victim to suffer emotional or psychological trauma or to have to change the way they live their life.

Harassment

Harassment is unwanted behaviour that is offensive, or which makes the victim feel intimidated or humiliated. It is connected with stalking, but it is a separate offence under the PHA: ‘causing alarm or distress’ offences fall under section 2, and ‘putting people in fear of violence’ offences fall under section 4.

Harassment under the Act is outlined as a course of conduct which amounts to the harassment of another and, which the perpetrator knows, or ought to know, amounts to harassment of another. A ‘course of conduct’ is recognised as two or more incidents.

Stalking

There is no strict legal definition of stalking. The Suzy Lamplugh Trust (a personal safety charity and home to the National Stalking Helpline) defines stalking as: “a pattern of fixated and obsessive behaviour which is repeated, persistent, intrusive and causes fear of violence or engenders alarm and distress in the victim.”

The PHA sets out a non-exhaustive list of examples of acts or omissions which, in particular circumstances, are associated with stalking, such as: following a person, forcing contact with the victim through any means (including social media), monitoring the victim’s use of the internet, loitering, interfering with property, or watching, or spying on a person. However, because this list is non-exhaustive, there will be other types of behaviour, not mentioned above, that may also amount to an offence.

To help identify the signs of stalking, and highlight associated behaviours, the College of Policing has shared the mnemonic FOUR, which stands for Fixated, Obsessive, Unwanted, Repeated.

Stalking is most often about power and control, and the effect of such behaviour is to curtail a victim's freedom, leaving them feeling that they are always under surveillance and therefore constantly having to be careful or on guard. This can, over time, result in the victim experiencing profound anxiety and fear.

Increase in stalking cases

In 2020, more than 80,000 incidents of stalking were recorded by police officers in England and Wales, according to the Office for National Statistics. This is a significant increase on the 27,156 offences in 2019 (however, the years are not directly comparable because of a change in how crimes are recorded, encouraging greater reporting of offences by ex-partners).

Violet Alvarez, Senior Policy and Campaigns Officer for the Suzy Lamplugh Trust, has said that 55% of stalkers are the ex-intimate partner of their victim, but 45% have a completely different relationship. For example, during the pandemic, there have been a number of neighbour stalking cases. As people have worked from home through the pandemic, this type of opportunistic offence has increased.

The problem with tracking devices

In April 2021 Apple launched the AirTag. Described by the company as a “super-easy way to keep track of your stuff. Attach one to your keys, slip another in your backpack. And just like that, they’re on your radar in the Find My app, where you can also track down your Apple devices and keep up with friends and family.”

Almost immediately, concerns were raised, regarding the potential for Apple’s AirTags to be a new means of inexpensive, effective stalking.

You can purchase an AirTag in the UK for less than £30. The device is a coin-shaped fob that can be placed in the owner’s bag, or on their set of keys, or in their wallet, to help the AirTag-owner locate the connected item. However, designed as it is to be inconspicuous, the device can easily go unseen and be placed, undetected, in another person’s property as a tracking device.

AirTags work by using Bluetooth wireless signals to report their presence to other nearby devices that are connected to the internet. So, an AirTag will work wherever there is a nearby iPhone. These location reports go back only to the AirTag’s owner, no-one else knows where they are.

It is unclear whether Apple consulted any domestic abuse experts when they designed the AirTag, but there is one measure that may help to identify a person attempting to use the device for stalking. Each AirTag has a fixed serial number, physically printed on to it, readable by Bluetooth, linked to the identity of the registered owner. Ultimately, this identification information is held by Apple and it would likely have to be compelled to release the same.

However, in order for the serial number to be utilised, the victim first has to find the hidden AirTag. This is not necessarily an easy feat.

Apple say that the AirTag is designed to discourage “unwanted tracking.” The website notes:

If someone else’s AirTag finds its way into your stuff, your iPhone will notice it’s travelling with you and send you an alert. After a while, if you still haven’t found it, the AirTag will start playing a sound to let you know it’s there.

A number of concerns have been raised by this approach.

First, a notification on a phone is easy enough to ignore. Even if you do not ignore it, the notification does not help the victim to locate the AirTag itself.

Second, the sound emitted by the AirTag is 60 decibels, which is about as loud as a normal conversation between two people sitting about one metre apart. Moreover, the speaker on the AirTag is easy to muffle (for example, with tape, or if the device is placed between two car seats), making it even less likely to be heard by an unsuspecting victim. Furthermore, the sound plays intermittently every few hours for approximately 15 seconds before it stops.

Third, the alert is sounded when the AirTag has not been near its owner for eight to 24 hours. Eight hours might be considered a long time for a victim to go unaware that they are being tracked. Furthermore, where the victim lives or works with their stalker, the alert countdown could be restarted each day when the owner of the AirTag comes back within range. In this situation it is feasible that the alarm might never go off at all.

However, the iPhone built-in tools are intended to make it possible spot an AirTag on or near you. If you have an iPhone 6s or newer and the device is running Apple’s iOS 14.5 software or newer, it will automatically alert you if it detects a rogue nearby AirTag. If you do find an unknown device, touching it to your smartphone’s near-field communication reader will bring up instructions for disabling it.

Apple’s Personal User Safety Guide

Additionally, last Monday (24 January 2022), Apple released a Personal User Safety Guide, intended to provide support for people who are “concerned about or experiencing technology-enabled abuse, stalking or harassment”.

Nevertheless, the biggest omission in the alerts system remains the fact that they are not available to people using Android devices. Currently, Android users must download a separate app (Tracker Detect). Tracker Detect cannot passively search in the background and therefore proactively warn the phone-owner of any nearby AirTag. Instead, the Android-owner must choose when to run the app themselves.

If you believe that you have been the victim of stalking, or if you would like more information in relation to this article, please do not hesitate to contact us for advice and support. Contact our specialist criminal law team on 01753 889 995 or email enquiries@bpcollins.co.uk

Useful contacts

The National Stalking helpline

Tel: 0808 802 0300

Website: www.stalkinghelpline.org

The Suzy Lamplugh Trust

Website: www.suzylamplugh.org

If you would like to sign up for more free legal articles from B P Collins please email: enquiries@bpcollins.co.uk.


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James Constable
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Jonothan Moss
Principal Lawyer

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