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Can I sue an app for emotional distress?

My soon-to-be ex-husband has been using a fake phone number app in order to impersonate:

  • my child's school
  • the coroner's office
  • the police officers who are handling the 3 warrants out for his arrest
  • the district attorney's office
  • my family members

and so forth.

I am scared to answer my phone and I'm terrified when my son's school calls thinking it's an accident; the same goes with the other numbers he uses.

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    Would you sue the maker of a kitchen knife if someone robbed a store with that knife? The answer is that the person robbing the store would be arrested. Not the manufacturer of the kitchen knife. Now this app has potential shady uses and it closer to a lockpick than to a kitchen knife, but I can also see many good uses for such an app. So I seriously doubt that you can make a good case against the app being there. The real question though: Why not sue the user of that app? – Hennes May 26 '18 at 11:05
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    @Hennes: you might, if they sold it as the "New Improved Store-Robber 3000, with Patent-Pending Intimid8 Technology". The creator of this app may or may not have made some similar mistake, depending how good their legal advice was. I still agree of course that it's not likely to work, but if the maker of this app actually is encouraging and actively enabling criminal activity of the type described then some kind of legal action against them (more likely by a public prosecutor than the questioner) could be on the cards. – Steve Jessop May 26 '18 at 12:41
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    Just to be specific, the app in question most likely is a Caller ID spoofer and not a number spoofer. Semantic but relevant. – Frank Phillips May 26 '18 at 16:03
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    The best legal advice so far has been to tell the police about these crimes - there will be plenty of time for civil action once the dust has settled. In the meantime, get in touch with your friends and family a different way like Google Talk or Signal. Make sure to reset all important passwords! And it might be time to get a new phone or at least a factory reset. – piedar May 26 '18 at 22:54
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    Are you sure it's an app? Any business with a PBX or VOIP setup can do this trivially and the setup isn't exactly expensive... – user4210 May 27 '18 at 6:32
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There are legitimate apps that let you buy phone numbers. With the right app I can buy let's say a landline number in Kansas. I call you, and you will think it's some guy in Kansas calling you. That's totally legal, it's a genuine phone number, and just like I can buy 10 phones and have ten phone numbers, I can use an app to pretend to have 10 phones. I cannot pretend to by your child's school with that kind of app, because for obvious reasons your child's school's number is not up for sale.

If an app let's you pretend to be someone else, like your child's school, then your phone company will be very interested in hearing about that. You don't have to sue the app maker, your phone company will. These three police officers will also be very interested, and impersonating a police officer is by itself a crime. (Normally impersonating a police officer is done by putting on a uniform, but calling you with the number of that police officer will also count). So these three police officers will have a word with your husband as well.

So suing the app maker (you can't sue an app, you can only sue the people responsible for it) is very hard, and not needed. Complain to your phone company, complain to the police, first to the three police officers he impersonated (the phone company will have records of phone calls seemingly coming from them) to advice them they are being impersonated, and then you complain to the police for harassment.

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    If it’s a public school, impersonating staff there—government employees—may also be criminal. Likewise the coroner’s office. And these institutions and/or their staff might want to sue for something over this, damaging their name and reputation or whatever. Anyway, that aside, minor correction: the number of police officers was unspecified in the question. There are 3 warrants for his arrest, but an unknown number of officers working on this case and/or in contact with OP. – KRyan May 26 '18 at 14:35
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    Adding to this... Don't just complain. Install a call recorder app which gives you evidence, and then complain. Even if that evidence isn't legally admissible in your area, it'll give the cops a lot more traction when they come to resolving it, and it elevates things above "he said, she said". – Graham May 26 '18 at 15:29
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    in rem is fine. You seek your remedy from the app's revenue stream, not the developers. I'd even argue if the app's revenue stream can satisfy your claim, you are not entitled to pursue the developers. – Harper - Reinstate Monica May 26 '18 at 18:01
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    DON’T use a call recorder without consulting a lawyer. It’s illegal in some cases, and using illegal means to combat something worse can weaken your case. – WGroleau May 26 '18 at 21:47
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    To add to this answer, most services via which you can fake someone else's phone number in caller ID are not designed to do so, and in fact attempt to make safeguards to prevent users from doing so. However, due to historical misdesigns in the way the phone system and VOIP protocols work, it's impossible to fully prevent it without also disabling all caller-ID for forwarded calls. So while it's possible there's a malicious app/service involved, it's more likely that OP's ex just knows how to exploit the limitations in a non-malicious one. – R.. May 27 '18 at 14:55
9

Yes. But you might not want to.

The general rule of thumb is: anyone can sue anyone else, at any time for any thing. However, I believe in this case you would need to show actual damages. I don't think emotional distress qualifies as actual damages. That type of thing is usually awarded as an add-on to something like a personal injury case; it's usually called "pain and suffering" if I'm not mistaken. Emotional distress is usually not compensated.

To your question about suing an app: you can always sue, provided you can find an attorney to represent you; but you are likely to encounter a few challenges.

Firstly, suing apps is a new area of law. So not much case law exists. This will present a challenge to your attorneys as well as to the courts.

Secondly, it could be difficult to find the owner of the app. It depends who owns the app and how much care they have taken to conceal their identity.

Thirdly, establishing jurisdiction can be challenging. Apps can run from servers anywhere in the world. App developers are extremely mobile. Suing a rogue developer operating inside an unfriendly country, for example, could be prohibitively expensive.

Fourthly, under the most favorable scenario considering the above questions, it's unclear what damages you've suffered and how much liability the app owners bear in proportion to, say, the app user i.e., your soon-to-be ex-husband.

Lastly, if you win and the app owner lives in a different country, has few assets or his assets are "judgment resistant," collecting your damage award could have its own set of challenges, obstacles, hurdles and roadblocks.

All things considered, it could be an uphill battle all the way and at a minimum very expensive. If not prohibitively so. I'd say it's a long shot.

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    "anyone can sue anyone else" As long as the other party is a legal entity. You can't sue an app, only the app maker. – Polygnome May 26 '18 at 14:45
  • I don't know about the situation with Android apps; with Apple apps you can very easily find the company responsible for it (but I very much doubt that an app letting you impersonate calls from other people would be accepted on the app store). – gnasher729 May 26 '18 at 15:02
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    @Polygnome "As long as the other party is a legal entity": certainly the captioning of civil asset forfeiture actions suggests that this may not be true. A court could also accept an action against an identifiable but unidentified person. – phoog May 26 '18 at 16:44
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    That would be John Doe. Never countersues or quashes. Never even shows up at hearings. – Harper - Reinstate Monica May 26 '18 at 17:55
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    " A court could also accept an action against an identifiable but unidentified person." True, but that "unidentifieable person" is then the app maker (if unknown). You can't sue "the app". – Polygnome May 26 '18 at 22:02
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Yes, you can, and I believe you'd have some degree of traction. The argument is that the app is giving him a variety of phone numbers to use, and legitimate uses of such an ability are few and far between.

Most uses of a phone number changer are "mischief of one kind or another", and the developer knew that, or reasonably should have known that. Companies are not allowed to offer a basically criminal or exploitive product and hide behind some thin veil of plausible deniability.

The courts are very liberal on this point; consider the Righthaven case. Righthaven's game was to find websites who had copied newspaper articles without permission and extort money from them. This was under the guise of "copyright enforcement" and they contracted with newspapers to give it a legitimate air. One person sued, saying the entire approach was exploitive of consumers and the legal system was never meant to be used this way. Courts wholeheartedly agreed, and curb-stomped Righthaven.


As far as jurisdiction and venue; indeed the app manufacturer may be in a faraway foreign land. However the app store is in the U.S. or has a presence in your advanced first-world nation with a competent legal system. As such they are fully reachable. This is both a blessing and a curse.

  • The third-world app developer is unlikely to appear in court, so they won't present any facts or arguments. That isn't a "win by default" as the judge can still decide against you based on your provided evidence. But it's definitely a huge advantage.
  • The app store (Google, Microsoft or Apple) is likely to join the lawsuit, so now you're up against the toughest legal teams in the world. The upside, however, is they don't have a dog in the fight: since you're not suing them, they have little to lose.
  • However if your argument threatens their entire business model, then the App Store does have a dog in the fight, and will fight nasty. However you will also have allies such as the EFF and the media.
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    Although not really relevant. I feel it worthwhile to point out that there are legitimate uses for such a service. I, for example, work with mobile voting systems, online advertising, subscriptions and other payments. Tools like the one described are extremely valuable to our testing process – Darren H May 26 '18 at 17:25
  • The reference to Righthaven is a total non-sequitur. They didn't publish an app that might be used for evil; the court slapped them down due to their own bad behavior! And I'm not so sure the EFF would be totally with OP vs software publisher. – piedar May 26 '18 at 22:27
  • @piedar It's not on-point to the instant case, no, and I probably wouldn't cite it in a pleading. It's to support my general claim in the previous paragraph that courts don't tolerate "plausible deniability" / "cover stories". – Harper - Reinstate Monica May 27 '18 at 0:31
  • @Harper Fair enough - I suppose it hinges on just how shady the app is, and whether its publisher was foolish enough to advertise or suggest clearly illegal behavior. – piedar May 27 '18 at 0:54
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As a layman, it seems to me that an "app" is not a legal person, but the app's author almost certainly is, so the question I assume you are asking is can you sue an app's author.

My guess is that it depends a lot on how you got the app, and what sort of warrantees were made as to the app's suitability to the purpose for which you used it. If the app's author had a good lawyer, he's probably got a license agreement that limits the damages you can collect. For example, in a MIT licence, covering free software, you will typically find:

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

I am not a lawyer, and this observation is not a legal opinion. I'm a software developer and I depend on license agreements including language in caps above.

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    OP doesn't have the app. The app is being used to cyberstalk hir. Sie is contemplating what liability the app author has for this use of their product. – Harper - Reinstate Monica May 27 '18 at 1:15
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    I'm also a software developer, and even I know that such a license agreement isn't going to protect you if your software deliberately enables or encourages illegal activities, and you don't market it for a legitimate purpose. If you make an app specifically for impersonating people, and you're not going out of your way to point out that it's only for, say, professional pentesting, you're going to get in trouble. I'm pretty sure calling it a "joke app" doesn't give you a free pass, either. – Zenexer May 27 '18 at 3:48
  • @Harper, good point. Let's start with the assumption that there is no contract between OP and author, but there may be between the author the stalker, and the license agreement may indemnify the author. Compare the software with a weapon, let's say a "Blackhawk" tactical knife. If a bad actor uses the knife to maim an innocent, is the knife manufacturer (Blackhawk blades) liable? – Burt_Harris May 27 '18 at 16:24
  • Absent specific legislation, it seems to me the closest only a legal theory of "negligent entrustment" might put the app's author in peril, but the burdon would then be on the victim to prove what the author knew about the stalker's intent. Right? This comes up so often with firearms manufacturers that there is specific legislation codifying the indemnification, consider Adames et al. v. Beretta USA Corp. – Burt_Harris May 27 '18 at 16:46
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    That may well be. But there is no way for A and S to craft an agreement abrogating O's right to sue A. O is not a party to that agreement. The only agreement possible is for S to recompense A's losses if O sues A - that is how insurance works, for instance. But an agreement to "take the hit" only works if the third party actually does. "Our shrinkwrap contract requires some random yo-yo on the Internet to indemnify us, and turns out they're an uncollectable flake" is not a defense. – Harper - Reinstate Monica May 27 '18 at 17:03

protected by feetwet May 26 '18 at 21:49

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