Breaking Down the GPS Stalking Law

New York attorneys say it's not a significant advancement for victims

In 2012, Erie County resident Jackie Wisniewski discovered a GPS device on her car. Her ex-boyfriend had put it there to stalk her. Fearing for her safety, she removed it and reported it to the police, but there was nothing they could do about it—it wasn’t a crime. She was later murdered by the man.
Two years later, in October 2014, Gov. Andrew Cuomo signed Jackie’s Law. It added the use of GPS devices to track another person to the list of actions considered fourth-degree stalking, a misdemeanor with penalties of up to three months in jail and $500 in fines.
There are caveats, however, because simply placing a device is still legal. After the victim discovers the GPS device, he or she must make it clear that such actions are not approved—then prove that the stalker continued to use the device without permission.
“I don’t see this as a significant advancement in the protection of domestic violence victims,” says Anthony Cecutti, a solo criminal defense attorney. “In my reading of the law, it still places a significant burden on the victim.” He says that technology also may be outpacing the law. “With GPS, we think of a guy sticking something under a car, but there are much more sophisticated ways of putting in a GPS device that a victim may never find, or would be very difficult to find.”
Forest Hills-based criminal defense attorney Mahmoud Rabah agrees. “The statute is a mouthful,” he says. “For example, an accused must have ‘previously clearly’ been asked to stop tracking. This leaves a lot up to interpretation. Does a conversation suffice? What about an argument between former lovers? What if the request to cease is a poorly worded text message like, ‘I don't want anything to do with you,’ or ‘Leave me alone’? Also, who has to inform the tracker to stop? Is the complainant required or can a relative make the request? There are many more questions than answers.” 
Cecutti, who holds a master’s degree in social work and has done domestic violence counseling, says forcing the victim to confront the stalker is a lot to ask. “I know from that experience and from criminal defense that it is not easy for a victim to say ‘leave me alone,’” he says. “That requires a lot of courage.”
A victim can abuse the law as well, he adds. “That’s true in all domestic abuse, where a victim has motivation to get back at a defendant,” Cecutti says. “After finding a GPS, I may say I told the person to leave me alone but in fact never did, or I may say that the person still contacts me, and that could be satisfactory for an arrest even though it may not be true.”
The statue currently makes exceptions for guardians intending to keep track of children and aging parents, but Rabah says there maybe be other legitimate reasons for GPS tracking that could make the statute hard to enforce: “One that comes to mind is a private investigator hired to investigate infidelity. Another would be a victim of domestic violence who uses GPS tracking to help him or her keep away from an abusive spouse or partner.”
“I think the problem with this statute is that it's too focused on the specific facts that promoted its inception: the tragic death of Jackie Wisniewski,” Rabah says. “I'm pretty confident that many of these conditions will result in future litigation and will require interpretation and clarification by appellate courts.”
Both attorneys recommend that people who suspect they are being stalked—or may be accused of stalking—should document their whereabouts at all times.

For more information on this area of law, see our overview of criminal defense.

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