Any schlub can attach a GPS tracker to your car; court suggests legislature might want to take a look at that

The Supreme Judicial Court today ordered the reinstatement of a harassment order against a Hingham man who monitored the whereabouts of two people via tracking devices he'd put on their cars for no good reason.

But the court said a judge should have ordered Francis Brennan to stop tracking the Hingham couple only because he committed three separate acts related to the devices that could be considered harassment and because any rational person would feel alarmed on learning somebody they didn't know was following their every move, not because the act of attaching a GPS device to the underside of another person's car by itself is illegal, because, at least in Massachusetts, it isn't.

As technology has advanced, the tools that people can use to harass victims have increased. ... The law has not fully caught up to the new technology, and given the speed with which technology evolves, it may sometimes leave victims without recourse. The Legislature may wish to explore whether the conduct of a private person electronically monitoring the movements of another private person should be criminalized, regardless of whether it would constitute criminal harassment. In these circumstances, the defendant's behavior satisfied the three acts necessary for the criminal harassment statute, but there may be occasions where the facts might not be sufficient for the statute to encompass a defendant's conduct.

The case dates to May, 2016, when a Hingham man discovered a GPS tracker on his wife's car and reported it to police, who advised him to check his own car - on which, sure enough, he found a tracking device as well, according to a court summary of the case. During interviews, Hingham police were unable to come up with any reason why somebody might want to track the couple - and while the devices listed the manufacturer, that company, Brickhouse Security, refused to tell the police anything.

There the matter might have ended, because Massachusetts law doesn't bar the placing of GPS trackers on somebody else's car. But the man serves in the Coast Guard, and he went to its investigative service - which used its subpoena power to force the company to hand over information about the devices, who might have attached them and what he was tracking.

That led the Coast Guard, and police, to Brennan.

Baldwin [the Coast Guard investigator assigned to the case] and the police then interviewed the defendant. At first, he denied any knowledge of who placed the GPS devices on J.D. and J.H.'s vehicles. He stated, "[L]et's just say things got a little out of hand due to some prior circumstances, it[']s moral, it's not anything other than that, his wife might want to start checking his phone." The defendant made statements suggesting that J.D. was having an affair and that the defendant was concerned about it.3 The defendant stated: "[I am] guarding the hen house"; "my only stake in all this is to make sure somebody was not in the place that I'm in all the time"; that he believed J.D. was "stepping out" of his marriage; and that he wanted to make sure his "backyard was clear." The defendant refused to provide the name of the person he alleged was having sexual relations with J.D.

Eventually, the defendant admitted that he had an account with Brickhouse and that he was monitoring the movements of the couple's vehicles using the GPS devices, which he accessed with his Apple iPhone4 and laptop computer. Police searched the defendant's iPhone pursuant to a warrant and created a forensic extraction report. The defendant's Internet history included visits to Brickhouse's online log-in page, J.D.'s Twitter social media page, and fifty-three Internet mapping program searches of various latitude and longitude coordinates gathered from the GPS devices. Baldwin subpoenaed the Brickhouse account information and received a full history report for each device. The history reports provided detailed location information about each device. Baldwin also discovered that the defendant purchased a third GPS device in April, approximately one month before J.D. discovered the two GPS devices. Using the forensic data from the defendant's iPhone, the police confirmed seventeen separate instances in which the defendant researched the locations of the vehicles over the course of ten days in May 2016.

The summary continues that neither of the two targets knew Brennan or what his deal was and that:

Throughout the police investigation, J.D. and J.H. expressed concern for their safety because the defendant's intentions were unknown. J.H. had difficulty sleeping, and J.D. had to change his work schedule to be home with her during the nighttime hours. The couple feared retaliation from the defendant for contacting the police. They also installed security cameras at their residence and sought an emergency harassment prevention order against the defendant.

The couple filed a criminal harassment complaint with Hingham District Court, but a judge rejected their request for a stay-away order, saying they had failed to prove the requisite three specific examples of harassment required by law.

In its ruling today, the state's highest court reversed that denial and ordered the lower court to tell Brennan to leave the couple alone, finding that it saw three separate acts pretty clearly:

We conclude that there was probable cause that the defendant committed at least three separate acts targeted at J.D. and J.H. when he concealed the GPS device on J.D.'s vehicle, concealed the GPS device on J.H.'s vehicle, and then tracked the movements of the GPS devices from his iPhone.

The court rejected arguments by Brennan's attorney that merely placing the devices on the cars cannot constitute harassment because there is nothing against the law in Massachusetts about placing a tracker on somebody else's car.

A defendant's otherwise legal conduct may qualify as an act of harassment when considered with other evidence. In addition to concealing the GPS devices, the defendant commented to the police that J.D. was "stepping out" on his wife and that the defendant was "guarding the hen house." Making matters worse, the defendant admits that he had never had any interaction with either J.D. or J.H. before. Viewing the evidence in this context and in the light most favorable to the Commonwealth, we conclude that the act of concealing a GPS device on an individual's vehicle qualifies as an "act" within § 43A [the criminal-harassment law]

Complete ruling (141k PDF).
DA's argument (222k PDF).
Defense argument (2.2M PDF).