Restraining orders have evolved to prohibit digital communication, but what happens when they fail?
In 1994, the National Center for State Courts conducted a study of 285 women in three cities—Denver, Colorado; Washington, D.C.; and Wilmington, Delaware—who had obtained temporary or permanent orders of protection against their abusive male partners. More than half said that, in advance of the restraining order, they had been beaten or choked; a sizable majority reported being slapped, grabbed, shoved, or kicked; and 99 percent reported being intimidated through threats, stalking, or harassment.
When they were interviewed one month after the instatement of the order, nearly three-quarters of the study participants said they felt better, felt safer, and had experienced an improvement in quality of life. Six months later, 85 percent of the women who were reached for a follow-up interview said their lives had improved, and 93 percent reported feeling better. Less than 10 percent said their abuser had physically stalked, re-abused, or showed up at their home. The most common failure of the protective orders, however, was in protecting survivors from unwanted communication with their abusers: “The most frequently reported problem in both the initial and follow-up interviews was calling the victim at home or work,” the study found, and it happened to about 17 percent of study participants.
Though they hadn’t been implemented or enforced to their maximum potential, the study concluded, civil protection orders were nevertheless pretty good at protecting domestic-abuse survivors from everything but their abusers’ unsolicited communication.
Of course, this was all before the mainstreaming of the internet.
In recent years, the ways people can and do get in touch with other people have proliferated somewhat astonishingly. It’s not uncommon, for example, for friends to carry on separate conversations over text, Slack, and Twitter concurrently, or for parents to email, text, and then call their kids after a certain prolonged period of unresponsiveness. One can even passively exchange information with others by watching their Snapchat or Instagram stories—and, in turn, watching them watch yours. But as the ways of interacting digitally have become more numerous (and in some cases, like Snapchat story-watching, more ambiguous and less direct), the law and law enforcement have struggled to keep up with what counts as “contact” as far as an order of protection goes. And when certain protections that citizens can invoke on their own suddenly vanish—as happened last month when 800,000 Facebook users’ blocked friends were abruptly unblocked—abuse victims can be left more vulnerable to unwanted contact or harassment.
A “no-contact” provision is a common inclusion in many kinds of temporary and permanent restraining orders (or “orders of protection”), and it usually protects an individual from being contacted by another specific individual, directly or through a third party. In the last 10 years, many states have begun specifying in their standard order-of-protection language that digital contact, be it via email or text or social media, is in fact a form of contact. But the advent—and rapid metamorphosis—of social media, as former Orange County Senior Deputy District Attorney Michael L. Fell noted earlier this year in a blog post on his firm’s website, has forced the courts “to change what is considered to be ‘contact.’”
Courts across the country have in recent years ruled that “interacting with a person on Twitter, Facebook, Instagram, and other social media platforms does indeed violate the terms of a restraining order,” as Fell pointed out. In 2009, a woman in Tennessee was arrested for allegedly violating a legal order of protection when she poked the protected person on Facebook. In 2016, a New York judge sentenced a woman to a year in jail for tagging someone who had a protective order against her in a post on Facebook, despite the woman’s claim that the order “did not specifically prohibit” communication through Facebook. In one 2016 case, a man allegedly followed his ex-girlfriend on Instagram while she had an order of protection against him, triggering an Instagram notification on her phone. The judge ruled that he had indeed violated the order, and explained the decision this way: “The situation described here is exactly the same as if the defendant, using his iPhone, had asked Siri to place a call to the complainant, instead of dialing her number himself. Just as in this hypothetical there could be no legitimate claim that the defendant communicated only with Siri and did not himself telephone the complainant, here there can be no legitimate claim that the defendant communicated only with Instagram, and not with the complainant.”
Cases like these, Fell noted, seem to define “contact” in the digital age as any act of communication wherein a recipient is deliberately selected as a recipient and then notified. Other forms of digital communication, however, especially those that lack one of those aspects, are what family-court and domestic-violence attorneys often perceive to be a “grey area.”
Lindsey Song, a staff attorney at Sanctuary for Families, a New York-based nonprofit that provides aid to domestic-violence survivors and their children, says complications often arise in cases in which an abuser names—but does not tag—a person who has a protective order against them in a Facebook post. “If there is a direct tag, it would be pretty easy to argue that that's a direct contact,” Song says. “The victim gets a notification on their Facebook page that the abuser has tagged them.”
Where it all gets fuzzier, though—and Song says she sees this frequently—is when an abuser posts about his victim on his own Facebook page, to his own set of Facebook friends, which often includes friends and family of the victim. “They'll post videos where they insult them or vaguely threaten them, at minimum,” Song says. At worst, Song has seen text-based artwork created in Facebook-post form that depicts the abuser having just killed the easily identifiable victim, who was protected by a no-contact order. In cases like that—cases that involve threatening, harassing, intimidating, or coercive content—“I would argue that of course that would be a violation,” Song says. “But it’s harder when we have ones that are just kind of slanderous: ‘They're sleeping around with everyone, they're ruining my life, they're trying to take my kids away.’ And frankly, a lot of the time, that’s not necessarily viewed as a violation of the order of protection, because it’s not direct contact with the victim.”
Another area where “Is it contact?” comes into play is on dating apps like Tinder. If a domestic abuser and their protected victim are in the same geographical area and the app algorithm pulls up the protected victim’s profile on the domestic abuser’s phone, swiping right (the first move toward initiating a conversation in the app) could, in certain circumstances, be considered contact. “I would say yes, it is,” Song says. “I think any kind of active effort to communicate [is contact].”
Location-sharing apps can also complicate the enforcement of no-contact orders, as it’s not uncommon for people with smartphones to share their locations with their partners or spouses. Sanctuary for Families often helps survivors replace their old phones and phone numbers when they seek help, Song says (as do other programs, like the National Coalition Against Domestic Violence and Verizon’s recently defunct HopeLine); that way, any spyware, call-monitoring, or surveillance software an abuser has installed is rendered ineffective. If a survivor keeps her phone, though, and forgets to turn off location-sharing programs like Find My Friends that she’s consensually shared with their abusers in the past, abusers are, generally speaking, within their rights to keep tabs on survivors through the app, according to Song. (Though as Song points out, that behavior on its own is rare; abusers often pretty quickly use the information they gather through location-sharing for more concretely harmful purposes like physical stalking.)
Passive tabs-keeping online or through social media—or as it’s sometimes known in the present digital lexicon, “orbiting”—is a well-documented bit of annoying, unsettling 21st-century behavior. And while it is not a traditional form of harassment or abuse, it’s been known to creep people out nonetheless. In a story for The Cut, for example, women described their experiences with being “orbited” on Instagram by exes or even unkind acquaintances as stressful and unpleasant. “He spent a year watching my every move. It was freaky because he broke up with me and I really did not like that he was keeping tabs on me,” says one woman. Another woman describes it as “upsetting” to see the names of people who’ve “said horrible things” about her on her social media feed all the time; still another says she blocked an ex who orbited her so that her mind “would no longer be haunted.”
One benefit of a no-contact order, Song says, is that it promises the protected person some peace of mind—not just a safe haven from further abuse or harassment, but also a break from the surveilling, menacing behaviors that often characterize abusive relationships and might otherwise interrupt their ability to go about their day normally. One could certainly argue that “orbiting” on social media is a surveilling or menacing behavior, but in a court in 2018, it probably wouldn’t be considered a violation of a no-contact order. If a protected victim gets some sort of notification that their abuser has viewed their content, Song says, maybe then—but, she adds, “I can’t imagine someone getting arrested for something like that.”
Part of the challenge of enforcing a no-contact order in the digital age, Song says, is that technology frequently offers additional new ways to put humans in touch with one another, while the courts are often slow to understand their implications. “I have routinely, multiple times, had to explain to a judge what Facebook is,” Song says. In one court case, a client of hers “had to testify what a Facebook wall was, who could see it, who could access it,” and it resulted in a nearly 20-minute detour.
“It's hard to have the courts or the police not understand what the nature of the contact is,” Song explains. “I don't often see people being arrested for violating orders of protection by messages.
“I think what we see and what our clients see as intimidating and harassing and threatening conduct isn't necessarily translated,” she adds. “Even though our clients feel like it's overwhelming and harassing and it's obviously a violation of the order of protection—in terms of the intent to harass, to intimidate, to coerce—it's harder to translate that into actually having it be a violation legally.” (Meanwhile, the National Network to End Domestic Violence’s blog Technology Safety recently published a guide to safeguarding “smart home” devices from abusers’ efforts to stalk, harass, and surveil, which was also the topic of a recent report by Nellie Bowles at The New York Times.)
Because a no-contact order can be hard to enforce, being able to block someone’s messages on social media can make a significant difference. Sometimes survivors are advised by legal professionals not to block their abusers on social media, so that a record of any online abuses can be kept as evidence. But blocking, when a person decides to do it, “sends a message [to the blocked individual], and it cuts down on the back-and-forth that can happen sometimes when there isn't a blocking,” says Laurie L. Baughman, deputy director for legal advocacy at MidPenn Legal Services in Pennsylvania, where she specializes in domestic-violence cases.
To call it an all-purpose panacea for safety, Baughman says, “would be a stretch,” especially if you’re dealing with someone who’s “savvy on the internet, and intent on finding information about a person.” A survivor of abuse who’s blocked their abuser and is trying to stay at a confidential address, for example, might be endangered by their child or relative “checking in” at an adjacent location on social media, or a friend posting a photo while they hang out together in a nearby public place. Still, “not everyone's going to think to go through all these other ways,” Baughman says. Blocking, at least, can at least give a survivor “a direct sort of peace.”
So in the recent case of the Facebook glitch that quietly unblocked some 800,000 people’s blocked users for over a week, it seems likely that some domestic abuse survivors’ information was left vulnerable. Bugs in security, Baughman says, “certainly pose a challenge, and possibly a dangerous one, for folks who are blocking and assuming that because they've blocked [someone] their information is protected. They're posting where they're going or what they're doing. If they have somebody who's inclined to stalk and follow them, that gives them an avenue to find that information. It can be quite scary.”
(According to a representative for Facebook, officers at the company were not aware of any cases in which a Facebook user suffered a negative impact as a result of the unblocking bug when they decided to tell the public what had happened. In outlining what tools are available to domestic violence survivors or people wishing to maintain privacy from abusers, Facebook points to the safety tools found in the “Safety Center” on Facebook’s website; its section on “online well-being” describes a “social resolution” feature that allows users to report offensive messages or content by simply asking the sender to take them down, and its section on bullying advises teens to unfriend, block, or report the activities of anyone they feel is bullying or bothering them. “If you feel your safety, or the safety of someone else is threatened, like someone won’t stop stalking you, posting explicit photos, threats of physical harm, sexual harassment, extortion,” the website goes on to instruct teens, it’s time to tell an adult or call the authorities.)
Because a Facebook user cannot tag, send private messages to, or write on the public-facing profile page of another user who has blocked them, un-blocking an abuse survivor’s blocked users leaves their inbox and profile vulnerable to messages from their abuser. Which to some might seem like a much less grave risk—but as people like Song, who routinely works with domestic-abuse survivors, know, sometimes the messages are the most psychologically harmful part of an abusive situation. “When we go to courts, sometimes the more dismissive judges will say, ‘Oh, it's just text messages,’ or ‘Oh, it's just communication,’” Song says. “But it's not. Many of my clients will tell me that the emotional abuse was the worst part of it. Because every day they were told they were garbage. They were told they were nothing for years of their lives, and after being told that, every single day, by someone they cared about, they started to believe it.
“Allowing someone to remember who they are, to connect with family and friends in a way they weren't able to,” Song adds, “to have that [fear] be lifted, it just gives such a sense of freedom.”