Unlawful Installation of Tracking Device or Application in Florida
It is unlawful to install a tracking device or tracking software without consent.
Under Florida Statute 934.425, the crime of Unlawful Installation of a Tracking Device or Tracking Application occurs when a person installs a tracking device or tracking software application on another person's property without that person’s consent.
Revocation of Consent
A person may revoke their consent to the installation of the tracking device or tracking software application at any time.
Consent to the installation of the tracking device or tracking software application is presumed revoked by operation of law should one of the parties file for divorce or an injunction against the other person. [1]
Installation vs. Tracking
Notably, because the statute is poorly written, it is only unlawful to install a tracking device or tracking software application on another person's property without consent.
Because the statute does not actually make it unlawful to track another person without their consent, even if they previously consented to the installation but later revoked their consent. Any such prosecution should be challenged as being unconstitutional under the void for vagueness doctrine
Penalties for Unlawful Installation of Tracking Device or Application
The crime of Unlawful Installation of Tracking Device or Tracking Application is a Second Degree Misdemeanor punishable by up to sixty (60) days in jail, six (6) months of probation, and a $500 fine.
A judge may sentence a person convicted of Unlawful Installation of Tracking Device or Tracking Application to probation, but may also impose a sentence up to the statutory maximum of sixty days in jail.
Defenses to Unlawful Installation of Tracking Device or Application
In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, common defenses to the crime of Unlawful Installation of Tracking Device or Application include:
Legitimate Business Purpose Exception
A person acting in good faith on behalf of a business entity may install a tracking device or tracking software application for a legitimate business purpose. [2]
Examples of a legitimate business purpose would be the installation of internet tracking cookies, GPS tracking software on electronics, or GPS tracking devices on business vehicles.
Motor Vehicle Owner Exception
The owner or lessee of a motor vehicle is not required to obtain consent before installing a tracking device or tracking software application on a vehicle they own or lease during their period of ownership. [3]
Void for Vagueness
Any criminal statute can be challenged as void for vagueness when it fails to give adequate notice of what conduct is prohibited because of its imprecision, thus inviting arbitrary and discriminatory enforcement. [4]
As currently written, section 934.425 only applies to the initial installation of the tracking device or tracking application. However, the statute does not address when a person must remove the tracking device or tracking software, whether a person must stop tracking another person if consent to installation is revoked, or whether a person can continue tracking someone that has filed for divorce or an injunction.
Nevertheless, it does not take much imagination to see a person being arrested or prosecuted for refusing to remove a tracking device or tracking software or continuing to track someone even though one of the parties filed for divorce or an injunction.
In such prosecution, a person should move to dismiss the charges arguing that the statute does not specifically prohibit such activities and to the extent the statute was intended to prohibit such activities, it is void for vagueness and unconstitutional.
Contact Criminal Defense Lawyer Richard Hornsby
If you have been arrested or charged with the crime of Unlawful Installation of Tracking Device or Application in Central Florida or the Greater Orlando area, contact Criminal Defense Lawyer Richard Hornsby today.
The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.