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Myriad Newsbyte Article (APRIL 2009 / Volume 3)

Many states, such as New York, Nevada, Michigan, Georgia, Texas, North Carolina, Washington and Virginia have laws which define a “private investigator” broadly enough to include a person who collects computer information for forensic use. This could generally include litigation support providers who are now beginning to generally provide this service as part of their litigation support services. The laws pertaining to licensing of private investigators are somewhat incongruous when applied to computer forensic information collectors since private investigator licensure requirements often have little to do with knowledge and expertise in computers and forensic collections.

The private investigator statutes are avowedly for the purpose of serving the public interest by protecting “public safety.” See, e.g., Nevada (Nev. Rev. Stat. section 648.017); Georgia (Georgia Private Detective and Security Agencies Act) Ga. Code Ann. section 43-38-2 (“purpose of safeguarding citizens ... regulating private detective …businesses …in the public interest”). Whether licensing and regulating computer forensic collectors as private investigators under these statutes protects public safety is debatable. As some have argued, it may better serve the public interest if forensic collectors were required instead to be professionally certified by peer evaluator bodies, of which there are a few. See e.g., Joseph J. Schwerha IV, Why Computer Forensic Professional Shouldn’t be Required to Have Private Investigator Licenses., Digital Investigation 5 (2008) 71-72 available at www.sciencedirect.com. It is doubtful that many computer forensic professionals anticipated that they may require licenses as private investigators alongside “private patrolmen, process servers, repossessors, dog handlers, security consultants, and polygraphic examiners” for the protection of public safety. See, e.g., Nev. Rev. Stat. Section 648.017.

Some states have specifically declared that their private investigator licensing laws apply to computer forensic collectors. See Joe Howie, Impact of State Licensing of Private Investigators on Digital Forensics, Law Technology Today (June 2008) (ABA Law Practice Management Section) available at www.abanet.org/lpm/ltt/articles/vol2/is4/ (noting examples). But since almost all states have some form of private investigator licensing law, application of these laws to forensic collectors may simply be a matter of time. It has been observed that only six states do not have some form of private investigator licensing law. See D. Radcliff, Computer Forensics Faces Private Eye Competition, available at www.baselinemag.com (Feb. 1, 2008). These statutes tend to be quite broad, which means they easily could be interpreted to include computer forensic collectors within their definition of a private investigator since most define anyone collecting evidence for use in court or other proceeding to be a private investigator. (See Id.)

Take, for example, the Nevada statute:

Section 648.012 of Nev. Rev. Stats. defines “Private Investigator” as follows:

“Private investigator” means any person who for any consideration engages in business or accepts employment to furnish, or agrees to make or makes any investigation for the purpose of obtaining, information with reference to:

• The identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation or character of any person;

• The location, disposition or recovery of lost or stolen property;
• The cause or responsibility for fires, libels, losses, accidents or damage or injury to persons or to property;
• Securing evidence to be used before any court, board, officer or investigating committee; or
• The prevention, detection and removal of surreptitiously installed devices for eavesdropping or observation.

Under Nevada’s PI licensing scheme, any person who gets paid to conduct any investigation for the purpose of obtaining information concerning (among other things) the business, transactions or acts of any person or to conduct any investigation about the cause of “losses,” or “accidents,” or “damage or injury to persons or property” is a private investigator. So is a person who is engaged to secure evidence to be used before any court, board, officer or investigating committee.

Thus Nevada’s definition of a “private investigator” would include any person engaged for “consideration” to forensically collect information from computers in connection with litigation, or even anyone who collects computer information simply to determine the cause of loss or damage to person or property. It also includes a person who collects information from company computers for the purpose of determining the identity of users, or of their habits, activities, and/or transactions. Computer technicians not doing forensic collections could be so engaged by a company, for instance if they were engaged to determine employee usage of company computers. Under the Nevada law, they might be considered to be a “private investigators” even though they may not be technically engaged in forensic collections. What separates the technician from the computer forensic consultant is the purpose of the collection. Forensic collections contemplate that the information will be used in court proceedings or official investigations, but these laws do not appear to make that distinction -- hence a computer technician simply collecting data could fall within their ambit.

Many observers argue, for various reasons, that forensic collectors should not be licensed as private investigators. One argument is that it is burdensome for a forensic collector, who may be operating in various jurisdictions, to have to qualify for licensure in multiple jurisdictions, each with varying licensing requirements. Indeed, the requirements for licensure may themselves may be onerous. In Nevada, in order to get a private investigator license, corporation applicants are required to undergo criminal and moral character background checks and provide FBI fingerprint cards for their principal officers. If the business is operated by a partnership, then each partner must be licensed. This is in addition to significant licensing fees, private investigator experience requirements, and insurance requirements. Moreover, even employees of licensees have to be issued a work card by the sheriff of the county in which the work is to be performed.

The debate about licensure is sure to continue. For the time being, litigation support specialists offering forensic collection services may have to seek refuge in working directly with an attorney in collecting forensic information. This is because most private investigator licensing statutes exempt attorneys from the application of the licensing law. Nevada, for example, provides that "[e]xcept as to polygraphic examiners and interns, this chapter does not apply ...[t]o an attorney at law in performing his duties as such." Nev. Rev. Stat. section 648.018. Similarly, Tex. Occ. Code Ann. section 1702.324(b)(9) provides that the Texas law does not apply to "an attorney while engaged in the practice of law." Georgia's statute provides that it does not apply "an attorney or a bona fide legal assistant in performing his or her duties." Ga. Code. Ann. section 43-38-14.

While the foregoing statutes do not expressly exempt an attorney's independently retained contractor who assists the attorney in a forensic collection, one would assume that such a person is logically exempted so long as he has been contractually retained to assist the attorney. It seems elementary that legislators would not have assumed, in exempting attorneys from these laws, that the attorney would in each instance undertake the investigation or collection personally. Most attorneys routinely utilize experts and consultants to provide expertise in the preparation of litigation matters. It is interesting, however, that in Georgia's case, the law exempts both attorneys and "bona fide legal assistants." Apparently, this must mean that a bona fide legal assistant is independently exempt even if not in the employ of an attorney.

The New York statute bears bares some special mention, because it specifically does not exempt independently retained contractors even if they are working under the attorney's aegis. The New York statute provides, in pertinent part, that it "shall [not] be construed to affect in any way attorneys or counselors at law in the regular practice of their profession, but such exemption shall not enure to the benefit of any employee or representative of such attorney or counselor at law who is not employed solely, exclusively and regularly by such attorney or counselor at law." N.Y. Gen. Bus. Law, section 83. Thus, to be exempt under the New York statute, a person must be an attorney or an employee "solely, exclusively, and regularly" employed by an attorney engaged in the regular practice of law.

The attorney exemption appears to be universal in PI licensing laws. One commentator states that "[v]irtually all states that have PI laws also provide an exemption for attorneys who are acting in their capacities as attorneys. Recognizing that attorneys rely on the assistance of others to help them manage and prepare their cases, the attorney exemption is extended to those who assist lawyers." See Howie, supra. However, because of possible idiosyncratic nuances in each state's attorney exemption, an attorney and his or her forensic collector consultant would be well-advised to look at each statute and not simply rely on the assumption that an exemption exists. For example, the North Carolina statute "exempts 'An attorney at law licensed to practice in North Carolina while engaged in the practice of law and the attorney's agent provided the agent is performing duties only in connection with his or her principal's practice of law.'" (Howie, supra, citing N.C. R. S. 74C-3(b)(4).) Thus, The author notes that the North Carolina statute extends only to attorneys licensed in the state. Nuances in the exemptions of different states would require that A forensic collector should specifically review the scope of the exemptions in each state in which he is to be retained for forensic collections. If an exemption is not available, any persons providing forensic collections services may have no option but to get licensed as private investigators or to contract with a licensed investigator. Of course, as a matter of policy, industry practitioners should (alongside engage in continued efforts to lobby legislatures for clarity in this area, including lobbying for alternative regulation, such as, professional peer certification.

Article Contributed by Stephen K. Lubega, Attorney at Law