For those not already familiar, cyberstalking software offers the ability to easily track the whereabouts of a certain person by installing certain software on their smartphone that records and transmits the phone's whereabouts back to the installers' choice of locations. Some may call it a boon to relationships everywhere, and some may call it a massive invasion of privacy, but what some in Congress want to call it is a little more simple: illegal.

New legislation being considered today is expected to pass the Senate Judiciary Committee that would close a loophole allowing cyberstalking software to be quietly placed on a smartphone, where it would quietly operate without the user's knowledge. Sponsored by Sen. Al Franken, Chairman of the Senate Privacy, Technology and the Law subcommittee, the bill serves to update laws passed well before the rise of smartphones and whose lack of updating allows cyberstalking software to exist.


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One such cyberstalking software provider, Retina Software--who describes their offering not as "cyberstalking" but as "stealth phone spy software"--responded to the idea, saying that their program was for "the lawful monitoring of a cell phone that the purchaser of the software owns and has a right to monitor." Further, Retina Software described their policies on using the software on devices not owned by the software's purchaser, saying that if there was evidence that the customer doesn't own the phone in question, the account is subsequently closed, and that the program isn't marketed for malicious purposes.

Franken and his Senatorial cohorts, meanwhile, assert that getting the evidence that Retina would demand to shut down an account is difficult at best, making it a weak protestation that they would shut down accounts of those using Retina products for "cyberstalking" purposes. The apps can be installed and operated entirely without the knowledge of the phone's actual owner, and there's little way to tell that the software was improperly installed. Even law enforcement doesn't commonly care about the use of such software as they have more important things to deal with than jealous lovers or the like who improperly installed an app on someone's smartphone.

Franken's bill, in turn, would subject companies to civil liability for two points: one, not notifying a user within seven days that their tracking services are running on their phones and two, failing to get permission from the person who owns the mobile device to share their location information with other people. The bill came around following Franken's visit to a domestic violence shelter in Minneapolis, when a woman described how her abuser was using the information from a cyberstalking app to follow her movements from point to point.

An organization of software companies, meanwhile, wants Franken's bill changed because of its potential to hamper innovation without actually addressing the problem. The bill already includes an exception for parents who want to add cyberstalking software to their children’s' phones, but the industry feels that voluntary restrictions on the industry would do better.

We all want people to be safe with their smartphones, and tracking software like this may be doing ultimately more harm than good. The balance between the rights of companies to put out software like this, which does have some viable uses--even the legislation allows for tracking software on children by parents--must be weighed against the rights of regular people to go about their business untracked. Franken's bill may not be the best solution to this particular problem, but it may well be the closest thing there is.