Fighting the Dark Side of Technology: Maryland Stands Up to E-Stalkers

Electronic stalking, also referred to as “cyberstalking” or “modern stalking,” has made headlines recently due to reports of stalkers using social media platforms and wireless tracking devices to track and locate victims.[1] Early this year, teenage TikTok star, Ava Majury, made national news when her father shot and killed her social media stalker after he showed up at her home with a shotgun and blew open the front door.[2] More common headlines involve women finding Apple AirTags – small, wireless tracking devices meant for locating misplaced personal items like wallets or keys – hidden in their purses and cars only to realize that the tags were placed there by stalkers.[3]

Unfortunately, Maryland residents have been victimized by similar forms of electronic stalking.[4] In the past year, Maryland law enforcement agencies and non-profit organizations have received an increasing number of reports of electronic stalking.[5] One Maryland police department even reported “an uptick” in the use of GPS trackers – including Apple AirTags – for the purpose of tracking an individual’s whereabouts without their knowledge or consent.[6] Other frequently reported forms of electronic stalking in Maryland include planting recording devices in children’s toys to hear and watch what is happening in a victim’s home, installing spyware on a victim’s computer, and hacking “smart home” systems to tamper with the settings and engage in monitoring and harassment.[7] According to the Maryland Network Against Domestic Violence, stalking with technology is the most frequently reported form of stalking by victims of domestic violence in Maryland.[8]

Despite the growing prevalence of electronic stalking, Maryland law has been ill-equipped to combat e-stalkers.[9] Maryland’s previous criminal stalking statute only addressed “a malicious course of conduct that includes approaching or pursuing another.”[10] As a result, courts regularly interpret this statutory language to cover only stalking that occurs in person, i.e., the stalker must physically follow and track the victim to be guilty of stalking.[11] Luckily though, Maryland’s failure to keep up with the dark side of technology seems like it will soon be a problem of the past.

On April 1, 2022, Governor Larry Hogan signed into law Senate Bill 328, thereby expanding the definition of “stalking” under Maryland criminal law to include conduct that occurs by electronic communication and via GPS tracking devices.[12] Under the new law, which took effect on October 1, 2022, actions such as hiding a GPS tracker in a car, installing hidden cameras or listening devices in someone’s home, hacking cellphones, computers and social media accounts, and sending fake texts and emails constitute “stalking” if the perpetrator intended to cause or reasonably should have known that the course of conduct would cause serious emotional distress or fear of serious bodily injury.[13]

Electronic stalking is pervasive, and Maryland’s updated stalking statute represents an important first step toward ensuring that Maryland law is keeping up with advancements in technology and communication to better protect its citizens.[14] Although both in-person and electronic stalking will remain a misdemeanor under the new law,[15] advocates and members of the Maryland legal community hope that the new legislation will put e-stalkers on notice that their actions will not be tolerated,[16] as well as create more legal avenues for victims to receive justice.[17]

Lindsay Keough is a third-year day student at the University of Baltimore School of Law and an Associate Editor for Law Forum. Lindsay received a Bachelor of Arts degree in psychology and a minor in Spanish language and culture from the University of Maryland, College Park. In the past, she has worked as a law clerk at the Law Offices of Elsa W. Smith, LLC in Annapolis and the Office of the State’s Attorney for Anne Arundel County. Currently, she is practicing as a Rule 19 Student Attorney at the Baltimore City State’s Attorney’s Office as part of the Criminal Practice Clinic. Upon graduation, Lindsay will serve as a Judicial Law Clerk for the Honorable Judge Donna M. Schaeffer in the Circuit Court for Anne Arundel County. She hopes to pursue a career in criminal law.

[1] Michael Levitt, AirTags Are Being Used to Track People and Cars. Here’s What is Being Done About it, Nat’l Pub. Radio (Feb. 18, 2022, 5:37 PM), https://www.npr.org/2022/02/18/1080944193/apple-airtags-theft-stalking-privacy-tech; Maggie Kim, I Was Stalked with an Apple AirTag – Here’s What I Wish I’d Known, Reader’s Dig. (Jul. 26, 2022), https://www.rd.com/article/apple-airtag-stalking/; Samantha Cole, Police Records Show Women Are Being Stalked With Apple AirTags Across the Country, Vice (Apr. 6, 2022, 9:00 AM), https://www.vice.com/en/article/y3vj3y/apple-airtags-police-reports-stalking-harassment; Bruce Leshan, Stalked on Instagram – And Murdered, WUSA9 (Mar. 11, 2022, 6:52 PM), https://www.wusa9.com/article/features/producers-picks/denzel-kasaka-sentenced-to-30-years-after-instagram-location-tracking-murder-of-her-new-boyfriend/65-fc47e528-76d2-4bbd-8bf9-ad00490016a0.

[2] Elizabeth Williamson, A Child’s TikTok Stardom Opens Doors. Then a Gunman Arrives., N.Y. Times (Feb. 17, 2022), https://www.nytimes.com/2022/02/17/us/politics/tiktok-ava-majury.html?partner=IFTTT.

[3] Cole, supra note 1.

[4] See, e.g., Leshan, supra note 1; Justin Fenton, Anne Arundel Man Sentenced For ‘Cyberstalking’ Ex-girlfriend By Hacking Her Accounts and Getting Her Arrested, The Balt. Sun (Jul. 27, 2020, 5:12 PM), https://www.baltimoresun.com/news/crime/bs-md-ci-cr-federal-cyberstalking-sentence-20200727-p7qx4ci4bzhhvad5idf4nwtlgy-story.html; Laura Geller, Erin Spaht, & Ruth Morton, ‘I Still Feel Really Vulnerable’: Silver Spring Woman Concerned She’s Being Tracked By Apple AirTag, WUSA9 (Feb. 1, 2022, 7:00 AM), https://www.wusa9.com/article/news/local/airtags-can-also-be-used-to-track-you/65-9cc69018-39b9-43b3-a59c-6fb7ee6ffb88.

[5] Criminal Law – Stalking – Definition: Hearing on S.B. 328 Before the S. Comm. on Jud. Proc., 2022 Leg., 444^th Sess. (Md. 2022) (testimony of Debbie Feinstein, Chief, Special Victims Div., Montgomery Cnty. State’s Att’y’s Off.), https://mgaleg.maryland.gov/cmte_testimony/2022/jpr/7997_02082022_92024-200.pdf [hereinafter Hearings].

[6] Id.

[7] Maryland Updates Stalking Law to Include New Technology, Fox 5 D.C. (May 9, 2022), https://www.fox5dc.com/news/maryland-updates-stalking-law-to-include-new-technology.

[8] Hearings, supra note 5 (testimony of the Md. Network Against Domestic Violence).

[9] See Hearings, supra note 5 (testimony of Yun Jung Yang, Chair, Md. Comm’n for Women) (“[Electronic] stalking is often difficult to prosecute in Maryland due to our narrow definition of stalking.”).

[10] Md. Code Ann., Crim. Law § 3-802 (West 2021); Md. Fisc. Note, 2022 Sess. S.B. 328, https://mgaleg.maryland.gov/2022RS/fnotes/bil_0008/sb0328.pdf. 

[11] Hearings, supra note 5 (testimony of Doyle Niemann, Chair, Legis. Comm., Crim. L. & Prac. Section, Md. State Bar Ass’n).

[12] Act of Apr. 21, 2022, ch. 149, 2022 Md. Laws (enacting S.B. 328) (codified at Md. Code Ann., Crim. Law §3-802(a)(2)) [hereinafter “Act of Apr. 21, 2022”].

[13] Act of Apr. 21, 2022; Hearings, supra note 5 (testimony of Women’s L. Ctr. Md.).

[14] See Hearings, supra note 5 (testimony of Dorothy J. Lennig, Legal Clinic Director, House of Ruth Md.) (“Victims who are subjected to . . . electronic stalking live in almost-constant fear. They never know when, where or how an abuser might conceal a tracking or listening device and use it to follow, track or spy on their daily activities.”).

[15] Act of Apr. 21, 2022.

[16] Hearings, supra note 5 (testimony of Debbie Feinstein, Chief, Special Victims Div., Montgomery Cnty. State’s Att’y’s Off.).

[17] Hearings, supra note 5 (testimony of Jessica Emerson, Hum. Trafficking Prevention Project, Univ. Balt. Sch. Law).