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Senate panel OK’s bill that would close stalking loophole

WASHINGTON — A loophole that permits software companies to sell cyberstalking apps that operate secretly on cellphones could soon be closed by Congress. The software is popular among jealous wives or husbands because it can continuously track the whereabouts of a spouse.

The Senate Judiciary Committee approved a bill Thursday that makes it a crime for companies to make and intentionally operate a stalking app. The legislation, sponsored by Senator Al Franken, Democrat of Minnesota, also would curb the appeal for such inexpensive and easy-to-use programs by requiring companies to disclose their existence on a target’s phone.

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Stalking and wiretapping already are illegal, meaning it’s against the law in most cases for a husband or wife to secretly install the software on a spouse’s cellphone. Franken’s proposal would extend the criminal and civil liabilities for the improper use of the apps to include the software companies that sell them.

The proposal would update laws passed years before wireless technology revolutionized communications. Telephone companies currently are barred from disclosing to businesses the locations of people who make traditional phone calls. But there’s no such prohibition when communicating over the Internet. If a mobile device sends an e-mail, links to a website, or launches an app, the precise location of the phone can be passed to advertisers, marketers, and others without the user’s permission.

‘‘What’s most troubling is this: Our law is not protecting location information,’’ said Franken, chairman of the Senate Judiciary subcommittee on privacy, technology, and the law.

The ambiguity has created a niche for companies like Retina Software, which makes ePhoneTracker and describes it as ‘‘stealth phone spy software.’’ It’s available online for about $50. ‘‘Suspect your spouse is cheating?’’ the company’s website says. ‘‘Don’t break the bank by hiring a private investigator.’’

A statement from Retina Software said the program is for the lawful monitoring of a cellphone that the purchaser of the software owns and has a right to monitor. If there is evidence the customer doesn’t own the phone, the account is closed, the company said. The program is not intended or marketed for malicious purposes and doesn’t facilitate stalking, the statement said.

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But Franken and supporters of his bill said there is no way to ensure the rules are followed. These programs can be installed in moments, perhaps while the cellphone’s actual owner is sleeping. The apps operate invisibly to the cellphone’s user. They can silently record text messages, call logs, physical location, and visits to websites. All the information is relayed to an e-mail address chosen by the installer.

Franken’s bill would make companies subject to civil liability if they fail to secure permission before obtaining location information from a person’s cellphone and sharing it.

The bill includes an exception to the permission requirement for parents who want to place tracking software on the cellphones of minor children.

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