Author: FlexiSPY

Worried about your teenager? Who are they hanging out with? What are they doing after school? Is my child being bullied? Is my child into drugs? These are all valid – and common – concerns of a parent. You probably bought your teen a phone – a cute iPhone or a techie android smartphone.

You can put a lot of fears to rest if you know what is going on with your child’s phone. You also can intervene, if necessary, to protect your child.

What are the legal implications of spying on your child’s phone? Can you be sued by your child?

Parent-Child Immunity: Historically, the Doctrine of Parental Immunity barred a child from bringing a claim against her parents. The parental immunity doctrine had its genesis in the United States in Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891), in which a minor daughter was precluded from suing her deceased mother’s estate for damages resulting from mental suffering and injury to her character incurred during her confinement in an asylum for 11 days caused by her mother. The court gave this reason for its holding:

“ ‘The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrongdoing, and this is all the child can be heard to demand.’

The rule, as set forth in Hewellette is as follows: “So long as the parent is under obligation to care for, guide, and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained.”

All 50 states, legislatively or judicially (by a decision of the state’s supreme court), adopted the doctrine. California is a state that adopted the immunity judicially (Trudell v. Leatherby (1931) 212 Cal. 678 [300 P. 7] an unemancipated minor child may not maintain an action against his parent for negligence because an action by a child against his parent would «bring discord into the family and disrupt the peace and harmony of the household”).

The End of Parent-Child Immunity: Almost all states have now abandoned absolute parent-child immunity, particularly with respect to intentional torts against the child (i.e., child molestation and abuse). Many states have abrogated the doctrine for negligence claims where there is insurance coverage for the parent’s negligence, and allowing the child’s lawsuit against the parent would not disrupt family harmony, because the claim really lies against the insurance carrier for the parent (i.e., allowing automobile negligence lawsuits – now commonly excluded by insurance policies).

• The Goller Rule – immunizing ordinary parental negligence

Recognizing the continuing need to protect parental authority and family harmony, some jurisdictions have attempted to limit immunity to negligent conduct arising out of an «exercise of parental authority . . . [or] an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.» Goller v. White, 20 Wis. 2d 402, 122 N.W.2d 193 (1963).

The reasoning is that parents have a right to raise their children according to their own beliefs, without undue interference from the courts. Parents should be free to determine the physical, moral, emotional, and intellectual growth of their own children. Every parent has a unique philosophy of rearing of children, and matters of parental supervision invoke these philosophical considerations. Neither a court nor a jury can evaluate such highly subjective factors without supplanting the parent’s individual philosophy.

The Wisconsin rule from Goller, which is followed by a majority of states, is as follows: The parental-immunity rule is abrogated except in these two situations: (1) where the alleged negligent act involves an exercise of parental authority over the child; and (2) where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.

• The Gibson Rule – The Reasonable Parent Standard

California has led the way in completely abrogating the parental immunity doctrine and many states are moving towards the California “reasonable parent” rule adopted in Gibson v. Gibson (1971) 3 Cal.3d 914. Decided after Goller, Gibson recognized that “a parent may exercise certain authority over a minor child which would be tortious if directed toward someone else. For example, a parent may spank a child who has misbehaved without being liable for battery, or he may temporarily order the child to stay in his room as punishment, yet not be held responsible for false imprisonment.”

Gibson adopted the following rule, now known as the “reasonable parent” standard: “Since the law imposes on the parent a duty to rear and discipline his child and confers the right to prescribe a course of reasonable conduct for its development, the parent has a wide discretion in the performance of his parental functions, but that discretion does not include the right willfully to inflict personal injuries beyond the limits of reasonable parental discipline. . . [A]lthough a parent has the prerogative and the duty to exercise authority over his minor child, this prerogative must be exercised within reasonable limits. The standard to be applied is the traditional one of reasonableness, but viewed in light of the parental role. Thus, we think the proper test of a parent’s conduct is this: what would an ordinarily reasonable and prudent parent have done in similar circumstances?”

Statutory Monitoring Required : Oregon’s Child Supervision Law

One could also make the case that communications and location monitoring may sometimes be necessary for parents with a child who has a history of criminal misbehavior. For instance, Oregon imposes criminal penalties (only a $100 fine) against parents whose children violate tobacco, alcohol, truancy and curfew laws. In order to escape liability, the parents must either show they reported the conduct to police, or that they took reasonable steps to control the child. (Oregon Revised Statutes, Sect. 133.07 (Failure to Supervise a Child)).

Parental Liability for Harassing a Child: Don’t Hack Your Child’s Facebook Account

While there are no reported cases of parents being sued by their children for invasion of privacy for spying on their telephone and internet activity, there is a recent case where a parent took her supervisory activities over the top.

The 17-year old son of an Arkansas woman left his Facebook page open on his computer. His mom read his entries on the page and was disturbed to find he was posting accounts of domestic abuse by his mother. She changed his password, and, over the course of several weeks, began posting numerous false and defamatory statements which, to the child’s facebook friends, appeared to be posted by the 17-year old himself. She also sent communications by sms and through facebook to her son which were vulgar.

Her son made a police complaint. The mother was arrested, tried, and convicted of harassment. She was sentenced to 1 year probation, ordered to pay a $435 fine, and attend anger management classes. (Denise New case)

A Parent’s Takeaway: Monitoring your child’s phone and internet activity is within your right as a parent, and it may be your duty. While supervision and monitoring are perfectly within the law, harmful intentional conduct which goes beyond parenting, exposes parents to both civil and criminal liability. Moreover, public disclosure of personal communications can, in some cases, lead to civil or criminal liability for defamation, harassment or invasion of privacy.

Summary

This article will clearly demonstrate why mobistealth’s invisibility claim does NOT include keeping you hidden, by uncovering the place on an iPhone where mobistealth can be seen that will give you away every time.

You will read a detailed explanation of how we tested the accuracy of mobistealth‘s claim that their cell phone monitoring software is undetectable on the target phone. We present the facts that clearly show which spy phone software only says it protects you from being found out and which one actually delivers true mobile monitoring invisibility.

We explain our testing methodology and look at the test results using a commercially available copy of MobiStealth installed on an iPhone 4 and 5s.

You’ll see FlexiSPY’s and mobistealth‘s anti-detection features compared for detectability, and why FlexiSPY is the best mobile phone monitoring application for anyone who wants to stay totally hidden.

mobistealth Says Their Software Is 100% Undetectable

What you see below is an actual screen grab from mobistealth’s website where they claim their software is invisible. While it says right there: “No One Will Ever Know They Are Being Monitored”, the site doesn’t warn you about the other ways mobistealth can be easily detected on the target phone.

While it is true that mobistealth hides the app icon on the target phone, what they don’t tell you about are other traces created by a mobile spy app which will quickly show that the target phone is being monitored.

Find mobistealth on an iPhone? It’s Easy.

Before explaining how we located the mobistealth software on the iPhone, we should first take a look at two important iPhone technical features that apply to any spy phone program. Spyphone developers have to be sure these features are properly designed if the software is to stay absolutely invisible.

First, there are the application permissions found in the Settings menu. The second is the device’s starting state: jailbroken or not jailbroken.

If you’re not exactly sure what jailbreaking is, the idea is simple: If you want to install a mobile phone spying app on an iPhone, it’s necessary to get special access that allows you to install the programs you want to use, or “jailbreak” the device. Later in the article you’ll see what happens on the iPhone when you do this, and how it can get you discovered. First, let’s look at Permissions.

Application Permissions will get you discovered

When an application which is running on an iPhone has to send data, use the GPS or microphone, it must first get special permission from the phone’s operating system.

These permissions are displayed in the iPhone’s Settings menus as shown below:

• Settings > Cellular
• Settings > Location Services
• Settings > Microphone

If you simply tap open any of these menus you can see the name of the application requesting the permissions.

This is a sure giveaway that monitoring software has been installed on the iPhone and is one of the first places someone searching for spy phone software will check.

When we tested our copy of mobistealth, their software did indeed stay hidden in the location services and cellular permissions menus. And although it also did not appear in Settings > Microphone, we found that this was only because the audio recording feature mobistealth offers as part of their software failed to work. Therefore we could not determine for sure whether mobistealth is visible in Settings > Microphone, even if the feature can be made to function as advertised. But digging a little further we uncovered something about the associated function that makes the question of invisibility in this menu a moot point.

The SMS message command needed to activate remote audio recording could actually be seen, giving the target phone’s user a clear sign that mobistealth has been installed.

FlexiSPY removes this detection risk by making sure our software is always hidden in the Permissions menus, and that remote command text messages are never visible on the target phone.

As simple as these invisibility threats are to find, there’s an even easier way to detect a mobile monitoring app on a cell phone.

Jailbreaking can ruin invisibility

Before you install any software the iPhone will be in one of two states:

Either the target phone is NOT YET jailbroken or it is ALREADY jailbroken.

Once you install spy software on a cell phone, you have to be sure there is no sign on the target phone that indicates anything has been changed internally. And this is how one small but crucial detail will give you away– any time a mobile phone is jailbroken, an icon labeled “Cydia” appears in the app directory.

So in order for a mobile monitoring app to be 100% hidden, the following two conditions must be met at the time of installation:

— If the mobile phone was not previously jailbroken, the Cydia icon must not be visible.

— If it’s already jailbroken, the existing installation package list must not show any changes.

Phone NOT jailbroken a detection risk

The below grab from an iPhone that was not jailbroken before mobile monitoring software was installed clearly shows the Cydia icon in the app directory just as it looks on the target device. That icon’s sudden appearance is more than likely to attract attention and raise suspicion that the device is being remotely monitored.

Solving the Cydia icon problem is a simple matter of designing the software so that the Cydia icon can be removed, but mobistealth’s software doesn’t include any such feature.

Phone ALREADY jailbroken causes suspicion

On an already-jailbroken iPhone, the presence of the Cydia icon will already be familiar to the person using it, but what will make them suspicious is the sudden appearance of an unknown installation package. And this is exactly what happens because mobistealth puts an additional Installation Package called SBTerminal onto the iPhone.

Here below you can see that their Installation Package listing is plainly visible in the Sources menu. This is an obvious red flag that will quickly draw attention to the fact that mobistealth’s software is running on the target phone:

Although it’s actually quite simple to tap and delete the tell-all listing, many people are not aware of this. But with FlexiSPY there’s nothing to tap away, because our software automatically deletes the package source once the installation is complete.

How did we identify “vyk.me” as mobistealth? It clearly is not a trusted app like Twitter, nor is it part of the iPhone’s software like Maps. Plus— we made sure that no other software besides mobistealth was installed after jailbreaking our test phone­.

Our finding: You can detect mobistealth on an iPhone

mobistealth claims on their website “No One Will Ever Know They Are Being Monitored”, but what this actually means is their software runs without displaying an icon. Our point is that “no icon” is not a guarantee of absolute concealment, because there are other clear signs of mobistealth on the iPhone.

Our advice to mobistealth customers: get that Cydia icon hidden if you don’t want to get discovered.

We show you here how FlexiSPY lets you do this with just one click.

mobistealth‘s claim that “No One Will Ever Know They Are Being Monitored” doesn’t actually say it will keep you fully concealed. The true test of any mobile phone monitoring software is strictly pass/fail — it either keeps you hidden from the phone’s owner, or allows you to be detected.

What this all means to you

Seen from the developer’s viewpoint, spyphones should be called “Monitoring Concealment” apps, because a properly designed spyphone will have invisibility in all areas of the target phone as its top priority. So for someone who needs powerful mobile phone monitoring capabilities and the assurance they will never be detected, the facts confirm it: FlexiSPY hides the app and keeps you concealed.

Appendix

Below you can find the detailed specifications of MobiStealth.

Stay tuned for further blog pieces as we face-off FlexiSPY against all other major spy phone competitors to show that, when we say FlexiSPY really is the best spy phone software and really is 100% undetectable once installed, we have the evidence to prove it.

You can see how FlexiSPY stacked up against the remaining competitors for software visibility by clicking the links below.

• mspy
• stealthgenie
• mobile spy
  

Mobile Spy appear to be a reputable company when it comes to spy phone software, therefore the news that they are the only ones capturing Twitter intrigued us enough to try it out and see this was really true.

Unfortunately, we were unable to get this feature, along with the Facebook spy to work—despite several calls to Mobile Spy support.

This article will detail what we did in theR hope that someone out there can help us figure out how to solve the problem so we can advise Mobile Spy support staff who can then use that information to help their own customers.

Mobile Spy Twitter Test Results

In order to properly test Mobile Spy we had to first root our Android phone and prepare it for capturing instant messaging conversations according to Mobile Spy’s requirements.

1. We made sure the Android phone was rooted before installing Mobile Spy
2. We had installed Facebook, Twitter & Whatsapp and were logged in
3. We made sure that Mobile Spy (SIM Toolkit) received superuser permissions
4. We made sure that we had enabled Facebook, Whatsapp and twitter capturing inside Mobile Spy itself using the Logging Options menu.

With our Android phone correctly set up we set about installing Mobile Spy and started creating some instant messaging data for Mobile Spy to capture and upload to the online account.

Unfortunately none of the Twitter data that we created was uploaded by Mobile Spy.

This meant that we had to contact Mobile Spy support.

We logged on to Mobile Spy livechat and after providing our registered email address and order number we then proceeded to ask our question.

Why was no Twitter data being uploaded?

Had we correctly rooted the Android phone?

The first response we received to our question was the obvious one – had we rooted the phone?

We explained that we had and we were told to open up the SuperSU program (SuperSU is the program that is installed after rooting an Android phone and which grants Mobile Spy the permissions it needs to function) and check the settings for Mobile Spy.

The first thing we were told to check is the permission settings for Mobile Spy itself (SIM Toolkit). The Mobile Spy support staff thought that Mobile Spy had not been granted superuser permissions and that was why no Twitter data was being uploaded.

We had set our Android phone so that Mobile Spy was automatically granted the permissions it needed to work.

We told support this and we were then told to uninstall the software, reinstall and try again.

We uninstalled and reinstalled the software whilst still in a live chat with the support team. We were then told that everything would now work because the software had been reinstalled.

Unfortunately this was not the case.

We sent some more tweets and checked back in to the Mobile Spy online account but no Twitter data was uploaded. In fact the message inside the online account stated this.

We contacted Mobile Spy support again. We explained that we had already made sure that Mobile Spy had been granted the required superuser permissions in order to function. This time support asked us once again to check SuperSU and the permission settings for Mobile Spy.

Had we set the correct root permissions for Mobile Spy to work?

They wanted us to check the global default settings for Mobile Spy itself in case it had been set to not receive superuser permissions in which case that could be the cause for no Twitter data to be uploaded. Without gaining superuser permissions Mobile Spy would not work properly and that could have been the reason no Twitter data was being captured.

On our Android phone we set the global permissions for Mobile Spy to be ‘Enabled’ which was the exact same thing that the Mobile Spy support staff asked us to do. We were then assured that now, because SuperSU had granted Mobile Spy the correct rooting permissions that features that require root permission (and this includes capturing Twitter) would work.

After sending some more tweets and generating some general Twitter activity we checked our online account once more to see if Twitter had been captured.

Unfortunately it was the same and no Twitter data was uploaded.

We contacted Mobile Spy support a third time. This time Mobile Spy support asked us to check the settings for superuser notifications. Superuser notifications are notifications which display when a program has been granted superuser permissions.

Did we correctly configure the notification status of SuperSU?

With this option enabled, every time Mobile Spy needs permissions to function a message would be displayed on the screen. Ideally spy phone software needs to be discrete and hidden at all times so we understood why the Mobile Spy support staff wanted us to set the superuser notifications option to be disabled. We were then told to uninstall the software again and reinstall it. When we reinstalled it, as you would expect, because we had set superuser notifications to be disabled no notice appeared on the screen saying that Mobile Spy had been granted superuser permissions.

Support then told us to log in to Mobile Spy on our Android phone, then log out, restart the phone and log back in again. We did all of these steps and Mobile Spy support assured us now that everything definitely would work.

So we generated some more Twitter data and waited, giving it time to be uploaded (Mobile Spy support told us it can take up to an hour for data to be uploaded), before we checked our online account again.

Unfortunately still no data again was uploaded.

Mobile Spy then asked us to install an older version to try that. This used a completely different download URL and program name.

Did an older version of Mobile Spy solve the problem?

When this was installed it still mentioned ‘Mobile Spy’ and everything looked and functioned the same however we knew this was an older version because in the online documentation the name of Mobile Spy once it was installed on the Android phone was not the same as the latest version.

We installed this older version on to our rooted Android phone and set it up exactly as we had done before. Again we generated some Twitter data for Mobile Spy to capture. Unfortunately though the results were the same – nothing was uploaded.

But how can we be sure that the issue is with Mobile Spy and not our Android phone?

By testing the capturing of Whatsapp and Facebook also.

Did Mobile Spy otherwise capture Facebook and Whatsapp?

Both of these need root access on an Android phone for Mobile Spy to capture it.

So we set about generating data for both Facebook and Whatsapp on our Android phone.

Unfortunately Mobile Spy failed to capture Facebook.

However it did capture Whatsapp.

This proves that our Android phone was successfully rooted properly otherwise this would not be able to happen.

However even though Mobile Spy successfully managed to capture Whatsapp it captured the text only. Many of the key elements provided by rich media such as emoticons and stickers were not uploaded. When it comes to clarity of information, especially when capturing instant messaging conversations, you cannot afford to miss out on any details – no matter how small they may seem.

Why capturing all details of an instant message is vital

One well-placed sticker inside a conversation or a well-timed smiley face can change or set the tone of an entire conversation. If you are capturing that information you need to make sure that all elements of an instant messaging conversation are being captured because nowadays just capturing the text is not enough.

This is why FlexiSPY not only captures the most instant messaging programs (they capture nine compared to Mobile Spy’s six) they also capture much more of the chat data giving you all the details of every instant messaging conversation that takes place in an easy to read format so it looks exactly like it did on the phone.

So, if you are currently a Mobile Spy customer and you are able to get Facebook and Twitter to be captured on a rooted Android phone please let us know how you did it in the comments below.

There are lots of GPS tracking devices out on the market.  As an employer, you can install one on a company car, no problem.  Install it on an employee’s ID badge, yep.  Install one on an employee’s personal car . . . yes. And under certain circumstances you can install one to do limited tracking on your workers who use their personal car for work tasks outside the office.

However installed GPS tracking devices have one major limitation. They only track your employee’s car’s location. They don’t track your employee.

How can you track your employee’s location?  How can you see if your employee has decided to go to the racetrack instead of attending that expensive seminar you paid for?

One way might be to use an employee’s ID badge as a tracker. The problem with this is it only works inside the workplace, and the device becomes ineffective when removed by the employee.

Smart phones are amazing devices, because they can track and transmit locations just as accurately as installed GPS devices.  As a result of the need to accurately locate 911 callers, phone GPS transmitters have become almost universal in phones – in fact, many states require phones to be sold with the transmitters installed.  What’s more amazing is that the law treats the two devices – GPS transmitting devices and phones – differently, even though they provide similar data.

Employee GPS Tracking Laws

The use of GPS tracking technology for locating employees in the workplace has now become fairly widespread. More than 53% of all employers are using GPS technology to track their vehicles and workers. It is now cost effective for employers with as few as 8 staff members to use some type of technology to track their employees’ locations.

An examination of two recent appellate decisions in the State of New York demonstrates why the courts will apply different standards to determine whether GPS tracking is legal for employers depending on whether the tracking is done by an installed device in a car, or whether the tracking is done on a smart phone.

In examining the legality of using a GPS tracking device, it is important to first look at whether there are limitations on its use due to privacy issues.

First, No federal statute prohibits employers from using GPS tracking on cellular phones  to locate the positions of their employees. And, second, the only state to require notice that an employer is using GPS tracking on a cell phone is Connecticut. California and Texas have recently passed legislation requiring notification when a tracking device is placed on a car.

Therefore, there are no statutory limitations on an employer location tracking its employees with a GPS tracking device.

we recommend that all employers give notice of this policy and have its employees acknowledge the policy in writing.

Three states now would require that an employer notify its employees that it does use GPS tracking technology to monitor the location of its employees during work hours.  This is not a major limitation.  In fact, we would recommend that all employers give notice of this policy and have its employees acknowledge the policy in writing.

Although there are no statutory privacy laws that would significantly restrict using GPS location tracking technology in the workplace, courts have begun to consider this matter, and have laid down some guidelines on the limits that might be placed under state law on this type of monitoring.

Courts have traditionally found a low expectation of privacy regarding workplace monitoring.  Unless the invasion of privacy is unreasonable to the extent that it implicates highly personal information about the worker, the monitoring is found not to have violated the worker’s privacy rights.

Prior to GPS, in determining whether there was an invasion of privacy, courts examined whether there was penetration of a zone in which a person would reasonably expect privacy, and whether the intrusion was offensive in light of the motives and objectives of the intruder.  (See, Miller v. NBC, 187 Cal.App.3d 1463, 232 Cal.Rptr. 668 1986) and Shulman v. Group W Productions, 18 Cal.4^th 200, 955 P.2d 469, 74 Cal.Rptr.2d 843 1998.

Monitoring Employees GPS Locations — The First Case

The first employee GPS monitoring case came from New York.  In Cunningham v. New York State Dept. of Labor (2013 NY Slip Op 04838), New York’s Appellate Division heard a case in which the employee was subjected to discipline based on evidence obtained through the use of a GPS tracking device installed on his personal car.

Michael Cunningham worked in the state’s department of labor in a management position.  He was a 20-year veteran of the department and much of his work was performed either in the field or in remote locations.

His employer suspected that he was submitting false time reports and taking unauthorized absences.  They believed he was claiming he was on extended business trips, when he had actually returned home much earlier than his timesheets showed.

The employer hired an investigator to follow his car to confirm their suspicions.  Cunningham was successfully able to elude the tailing investigator several times.  Thereafter, the employer attached a GPS tracking device to the wheelbase of Cunningham’s personal car, without Cunningham’s knowledge.

The employer tracked the movements of Cunningham’s car for one month.  During that time period, the GPS tracking device required two replacements.  Through the evidence obtained by the tracking device, the employer brought disciplinary charges against Cunningham which resulted in termination of his employment.

The reviewing court found that the use of GPS tracking device to confirm suspicions about Cunningham’s absences and timekeeping records was reasonable.  It further held that tracking the car’s movements for one month was a reasonable length of time.

However, the court also ruled that the search was excessively intrusive.  Because the employer was tracking the movements of Cunningham’s car 24/7, and this would include considerable time periods when Cunningham made no claim that he was working, the search exceeded its permissible scope.  The employer, who replaced the GPS device twice during the surveillance, could easily have removed it when Cunningham took a personal vacation.  The court found that the employer failed to make a reasonable effort to avoid tracking Cunningham when he was outside of business hours.

A few months later, the U.S. Supreme Court stepped into the fray in a criminal case, but may have dealt a blow to the use of GPS devices which are attached to cars.  In United States v. Jones 132 S. Ct. 949, 565 U.S. ___ (2012), Justice Scalia reasoned that the trespass involved in placing a GPS device in a car invades a person’s privacy.  The concurring opinion, moreover, suggested that any long-term GPS tracking would be an invasion of privacy because it would reveal a wide range of personal information, including familial, political, religious and sexual associations.

Cell phones, however, have not received equal treatment from the courts.  In United States v. Skinner 690 F.3d 772 (6th Cir. 2012), the Court held that there is no reasonable expectation of privacy attached to the location transmitting signal of a cellular phone.  If there was, it would be an invasion of privacy to use scent smelling dogs to trace a suspect.  In Skinner, the Court explicitly differentiated placing a GPS device in a car in the Jones case, from using a person’s cell signal to track location.  The former involves a trespass, the latter does not.

With the preferential privacy treatment given to cell phones over placing GPS devices in cars, it would seem logical that employers should use the GPS tracking technology in cell phones, as opposed to placing a device in an employee’s personal car.  While there are still good business reasons for GPS tracking company-issued cars, tracking the movements of employees may be more important, especially in this age of telecommuting and distant working.

In a poll of professionals across the US, 56% of polled professionals had their smart phones paid for by the employer.

Therefore, employers can issue phones that have GPS tracking software installed, to allow them to monitor their employee locations.  Again, we would recommend that notification be made to the employee, especially because there may be tracking in off-work hours.  This is an attractive alternative to the stealth, and, ultimately failure, employed in the Cunningham case, where the tracking becomes so pervasive that it is held to violate the worker’s reasonable expectation of privacy.

At Flexispy, we are always trying to get consumers the best value for their money. As part of achieving that goal, we actually buy and test all Spyphone software on the market. That way, we can tell customers what they can expect when they purchase any brand of Spyphone software.

One thing we abhor is companies that sell Spyphone apps that plain just don’t work. This makes the entire industry look bad. We want customers to come to us because our products are the best on the market. When customers spend their hard-earned money on something that doesn’t work, that often means they give up, reasoning all Spyphone software is a scam.

With that in mind, we would like to share our experience with one particular brand.

We purchased the software, Cell Spy Stealth, on February 6, 2014 from the website, www.iphone-spy-app.com. The cost was $27.00. When we clicked the button to make the purchase, we were redirected to http://www.cellspymonitoringsoftware.com.

We were intrigued by their website, because they advertise that you can install the software on a target phone, without having physical access to that phone and then intercept any call made or received on the target phone.

After purchasing the software, we downloaded it as instructed, we tried installing it on the android platform, the iOS platform and the Blackberry platform. The installation was unsuccessful on all three.  Our company has technicians with years of experience installing Spyphone software onto phones. And, even they couldn’t get this app to work.

As instructed by their website, we submitted a ticket to their support team. We asked for a refund, because the software wouldn’t install. On their website, they guarantee customer satisfaction with the product and promise a full refund if dissatisfied with the product within 30 days of the purchase, no questions asked.

After submitting our ticket for a refund, we received this email from [email protected]

We never heard from them again. Yep, $27 down the drain. What a rip-off! But, you don’t have to kiss your money goodbye. At Flexispy, we’re going to help you get your money back.

How to raise a dispute, and do a chargeback on your credit card

When you purchase any software, take the time to read the legal disclaimer and the terms and conditions of the purchase. It will save you a lot of headaches and disappointment down the road. Here’s the relevant legal disclaimer for our purchase:

Software Download Return Policy:  All sales final. In-store credit only.

If there is a problem with the download, please contact us via email for a quick resolution.

Ummmm . . . what happened to my iron-clad 100% money back guarantee?

Never fear. With a credit card purchase, you can always get your money back. It may take a little time, but don’t let the scammers win.

But didn’t the company’s email say that it is illegal to file false and fraudulent chargebacks and disputes with my credit card company?

LOL, the scammers who sold you worthless software and took your hard-earned money are threatening you with legal action if you file a chargeback?

It is your right as a credit card customer to file a chargeback or dispute, if the product you purchased does not conform to your reasonable expectations as a consumer based on the marketing information provided by the seller.

So, here’s what we did to get our money back.

We first contacted our credit card company and informed them that we want to file a chargeback for this purchase. We told them the date and amount of charge. They emailed us a form to complete, which identifies the seller, the charge and the reason for the chargeback. We emailed it back with a copy of our emails with the seller. Our credit card company investigates, tries to get a response from the seller, and then reverses the charge. Simple as that.

But we didn’t stop there.

How to file a complaint with the payment gateway provider

When you purchase something on a website, usually your purchase goes into a shopping cart, and when you checkout to pay, you are taken to a different website, called the Payment Gateway.  The payment gateway is the lifeblood of the ecommerce seller, because it processes all its credit card transactions.

Payment gateways carefully watch the number of chargebacks and refunds for credit card transactions that they process, as there can be a risk if the amounts are particularly large. They may close their payment gateway service to the seller, or charge higher transaction fees, if they detect a pattern suggesting potential consumer fraud. Payment gateway providers are particularly interested in refund policies and whether the seller is living up to the refund policy as it is presented to the customer on the seller’s website.

CellSpyMonitoringSoftware uses Plimus as its payment gateway provider.  Plimus is a very reputable company, and handles a lot of ecommerce software credit card transactions.  Plimus has its own support system for handling complaints that cannot be resolved with the seller.

We submitted our ticket to Plimus’ service center so that we could escalate our request for refund. We do not expect Plimus will be able to get our refund, as that usually has to be obtained through a credit card chargeback. However, we are certain that our email has created a red flag about this seller and that Plimus may take some action as a result of this.

So, don’t accept that the Spyphone software you purchased is just a scam and that you threw away your money. Get your money back through a credit card chargeback and take the seller to task.

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There are many reasons an employer may want to use GPS location tracking technology to monitor the whereabouts of its employees.

These are some examples of where GPS tracking might provide some degree of help in the workplace:

• You suspect an employee of misusing company time to conduct personal business;
• You suspect an employee is engaged in illegal behavior, such as pilferage or drug use;
• You suspect an employee is misusing company paid sick leave;
• You suspect an employee of misappropriating company secrets or colluding with a competitor;
• You are concerned about whether an employee is on a personal diversion rather than his appointed task when using his personal vehicle.

These however,  are only a few examples of where an employer may consider engaging in Geo-location to confirm reasonable suspicions about a particular employee.

The question then arises, what can the employer legally do to obtain some evidence to confirm these suspicions?

For company-owned vehicles, the law is clear that an employer may put a GPS tracking device on the vehicle. The company-owned vehicle is the employer’s property, and its use for a business purpose is an extension of the workplace.

In O’Connor v. Ortega  480 US709 (1987), the US Supreme Court held that workplace searches never require a warrant. Also see,  Matter of Caruso v. Ward72 NY2d 432 (1988)(applying New York law, random workplace drug testing does not require a warrant).

But what about placing a GPS tracking device on an employee’s personal car? Is this ever legal?  What restrictions and limitations apply?

Employers now have guidance in this matter.

In Cunningham v. New York State Dept. of Labor (2013 NY Slip Op 04838), New York’s Appellate Division heard a case in which the employee was subjected to discipline based on evidence obtained through the use of a GPS tracking device installed on his personal car.

Michael Cunningham worked in the state’s department of labor in a management position. He was a 20-year veteran of the department and much of his work was performed either in the field or in remote locations.

His employer suspected that he was submitting false time reports and taking unauthorized absences. They believed he was claiming he was on extended business trips, when he had actually returned home much earlier than his timesheets showed.

The employer hired an investigator to follow his car to confirm their suspicions. Cunningham was successfully able to elude the tailing investigator several times. Thereafter, the employer attached a GPS tracking device to the wheelbase of Cunningham’s personal car, without Cunningham’s knowledge.

The employer tracked the movements of Cunningham’s car for one month. During that time period, the GPS tracking device required two replacements. Through the evidence obtained by the tracking device, the employer brought disciplinary charges against Cunningham which resulted in termination of his employment.

The reviewing court found that the use of GPS tracking device to confirm suspicions about Cunningham’s absences and timekeeping records was reasonable.  It further held that tracking the car’s movements for one month was a reasonable length of time.

However, the court also ruled that the search was excessively intrusive. Because the employer was tracking the movements of Cunningham’s car 24/7, and this would include considerable time periods when Cunningham made no claim that he was working, the search exceeded its permissible scope.  The employer, who replaced the GPS device twice during the surveillance, could easily have removed it when Cunningham took a personal vacation.  The court found that the employer failed to make a reasonable effort to avoid tracking Cunningham when he was outside of business hours.

Generally, New York’s privacy protection with respect to GPS tracking is stated broadly in its State Constitution. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.  NY State Constitution, Article I, Section 12

In Cunningham, New York’s appellate division concluded that the placement of a GPS tracking device on an employee’s personal car is not subject to the constitutional warrant requirement, because a personal car which is used in any way for a business purpose is an extension of the workplace.

Thus, the court has distinguished the employment setting from the police investigation setting.  Cf People v. Weaver, 12 NY3d 433, 447(2009)(holding the attachment of a GPS tracking device to a suspect’s car always requires a court-issued warrant supported by probable cause).  United States v. Jones  132 S.Ct. 945 (2012)(holding attachment of GPS tracking device to a suspect’s car is a trespass and requires a warrant.)  Interestingly, that distinction means the case is inapplicable to other GPS tracking technology, such as mobile phone GPS tracking applications.

Yet, an employer who has reasonable grounds to use location tracking technology on the employee’s car, must monitor with reasonable care.  Constant tracking of an employee’s car is liable to violate the employee’s right of privacy.
 

Security companies that manufacture GPS tracking devices would be wise to design the device so as to allow employers to turn the monitoring function off during non-working hours and weekends. This would avoid the Cunningham situation, where the employer’s reasonable use of the GPS tracking device was made unreasonable by being overly intrusive into the employee’s private life – the employee’s off-work hours.

As an employer, if you are going to use GPS tracking devices, you should make sure that the device has a scheduler and that your HR department creates a policy that the employer will reasonably refrain from using GPS tracking during off-work hours.

You should also make sure that your HR department thoroughly documents any targeted GPS location tracking of an employee’s personal car. They should detail the suspicion that surrounds the employee’s conduct, why less intrusive means of investigation would not be effective, and the proposed limits of the surveillance that will be used during the investigation of the employee.