Don’t Use Software to Spy on Your Spouse

As part of its ‘Burn After Reading’ issue, libertarian-focused magazine Reason published “To Spy on a Cheating Spouse” by columnist Declan McCullagh. It’s a guide to stalking a partner “accompanied by the kind of aggressive electronic surveillance that once was used only by three-letter federal agencies,” he writes.

The piece is an outline of all the ways McCullagh says the vexed ex or current spouse might consider tracking and spying on their partner: bug your child’s backpack. Put a GPS tracker in your shared vehicle. Spy on their phone and internet communications. Buy a “camo-painted, battery-powered, WiFi-enabled” camera and point it at their house.

At first, it’s hard to tell whether this article is meant to be satirical. It’s positioned in the ‘Burn After Reading’ issue alongside pieces about how to make weed brownies, how to smuggle illegal salami, how to grow mushrooms, how to build an off-the-books gun, and how to anonymize your Bitcoin. Reason’s editor-in-chief Katherine Mangu-Ward, wrote that “we've tried to push our own boundaries in this issue—while not actually committing any crimes in the course of publishing it—to help you think about yours.”

But growing mushrooms, smuggling salami, and even building a gun are not in the same category as publishing a how-to about spying on a partner. Motherboard’s reporting has shown that there’s a thriving market of “stalkerware” that is used to perpetuate domestic violence against people in abusive relationships. We’ve spoken to people who have feared for their lives because their partner surveilled them. If you decide to smuggle salami, you’re probably not going to hurt anyone—stalkerware can and does hurt thousands of people (mostly women) every day.

“I wonder if this is some kind of performance art, in which they’re just trying to give bad advice to bad people to get them caught,” Eva Galperin, Director of Cybersecurity at the Electronic Frontier Foundation, told me in a phone call. “That would be some galaxy brain level shit, I would be impressed. Unfortunately I’m worried this is just stupid.”

I spoke with Mangu-Ward about the intentions of this piece. She told me that it’s the publication’s goal to think critically and look closely at where the borders of legal and illegal meet. “That piece in particular, one of our goals with it was not only to explain the interesting legal facts about the distinction between gadgets versus software,” she said.

McCullagh explains in the piece that while many spy-specific gadgets are illegal, spyware is often not.

“The upshot for those who suspect something is amiss in their relationships: If you're going to spy, do it via software,” he writes.

In last paragraph of this piece, McCullagh writes: “Perhaps the best advice is to think twice before going down this path at all. To the extent it lets you avoid the legal gray areas surrounding electronic surveillance, staying together can mean staying out of jail.” For him, the answer is not don’t stalk people, but rather, just stay together.

McCullagh did not respond to a request for comment.

Mangu-Ward pointed to this paragraph as being “meant to be both awareness-raising for people who are targeted by these technologies, as well as to clarify and highlight what is on the wrong side of the law for people who are thinking of using them.”

“Stay together,” though, is not good advice to give to potential abusers, and it’s very tricky advice to give to someone who may be the target of abuse. Even finding out that you’re being surveilled by a partner can be dangerous. Domestic abusers often use spyware to isolate their partners from their friends and family, and if your phone is bugged, it can be hard to seek help undetected.

“Having a spyware-infected device while planning to escape an abusive partner, or taking a compromised device while making a getaway, opens people up to more risks than the already extreme threat of being in, and subsequently leaving, an abusive relationship,” security expert and activist Elle Armageddon wrote for Motherboard last year. And deleting the spyware can anger the abuser: “If you believe your partner may be targeting you with stalkerware, one of the safest things you can do is to use your phone as though nothing is wrong with it,” she wrote.

Mangu-Ware told me that like the other pieces in this issue, it’s meant to make the reader a little uncomfortable. “I think it’s pretty hard to make the case that it’s more dangerous to describe how to use ‘Find My iPhone’ on your spouse than it is to describe how to literally build a gun,” she said.

But using ‘Find My iPhone’ and stalkerware is far easier than building a homemade weapon, and guns are almost always used by people who have no intention of hurting someone; the same can’t be said about stalkerware. One spyware company, Flexispy, has more than 100,000 customers and specifically marketed its software for spying on a romantic partner. Plenty of people think it’s totally normal to want to snoop on your partner or spy on their conversations and whereabouts. It’s not. It’s abuse. And abusers and harassers can use this article as a handy to-do list.

The repercussions of having someone stalk you using invasive software often involve psychological, and sometimes physical, domestic abuse. A 2014 NPR investigation found that 75 percent of domestic violence shelters they surveyed across the US encountered victims whose abusers used eavesdropping apps. For a partner escaping an abusive situation, the ability of their abuser to track them can literally mean life or death.

McCullagh inserts many legal caveats into this piece, citing wiretapping laws (and their loopholes) and two-party consent laws (which differ wildly across states, so it’s not possible to make a sweeping recommendation).

“Encouraging exploitation of people in this manner is absolutely vile, and the recommendations are essentially advocating for a form of surveillance that can quickly turn abusive,” infosec expert Jessy Irwin told me in a Twitter message. “It's irresponsible to just say to anyone who might be an abusive relationship to, ‘Just do the opposite’ to protect themselves: that's not how any of this works.”

“Stalking in it of itself is bad, it is abusive—publishing a guide on how to do it is promoting abuse,” Galperin said. “Don’t do that.”