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.)