Having held various roles in policing and law enforcement, the Lanki team knows that one of the most important aspects of private investigation is lawful access to information. There are often very complex legal issues involved when undertaking a case, and misconceptions abound on what type of information investigators may or may not have access to when working for a client. Very frequently, operatives receive for requested that a private investigator cannot legally acquire.
To this end, the Diligentia Group, a boutique investigative firm out of New York City, has outlined five myths about types of information that private eyes have access to. The article is helpful to understand the capabilities of hired private investigators, as well as the difficulties or obstacles that some cases may involve.
The article speaks specifically to US law, however the information is mostly relevant to Canadian detectives as well:
5 Myths: What a Private Investigator Cannot (Legally) Get
There are a number of misconceptions about what a professional private investigator can legally obtain. These myths may begin with your matrimonial client’s insistence that her husband has secret bank account, or your colleague has boasted about how his investigators found the smoking gun in the opponent’s phone records, or it’s possible that you picked up some ideas from the latest corporate espionage page-turner…
No matter what the reason, you need the information and you need it now! So why can’t your private investigator get it for you? Typically, there are two reasons for this:
First, the information may be private and protected by either state or federal statute. In this case, your investigator may be able to identify where the information is located. Location is extremely useful information for leverage in negotiations, future subpoena requests, or discovery motions. In some cases (e.g. employment or insurance fraud investigations), you may have a previously-signed release from the subject that will allow you to access this private information.
The second reason is that the information simply doesn’t exist. The information may not be compiled into a single database or a comprehensive format. An investigator may ultimately be able to obtain the information, but the process isn’t as simple as you might think.
The 5 biggest misconceptions by clients involve private investigators’ access to the following:
(1) Banking and Financial Records There are two things to consider here – where are the accounts and can we gain access to account-specific information? First, there is no comprehensive registry of bank accounts in the United States and identifying undisclosed or hidden accounts is no small feat. A seasoned investigator may be able to identify accounts linked to an individual through interviews, public records searches, or other legitimate investigative techniques. Once accounts are identified, legally obtaining account-specific information is nearly impossible without a court order or the consent of the account holder. The Gramm-Leach Bliley Act, passed in 1999, imposed strict penalties for individuals who obtain information about a third party account through pretext or deceit. Check out Fred Abrams, Esq. post on Violating Federal Law In Asset Search for a great case study.
(2) Telephone Records Telephone records are private and third party access is restricted by a host of state and federal statutes, including the Telephone Records and Privacy Protection Act of 2006 Similar to bank records, an investigator can use legitimate tools to try to identify the telephone carrier for a particular phone number or individual. There are a number of online tools that allow you to input part of a phone number to determine the carrier (e.g. www.phonefinder.com). However, those cannot be completely relied upon for accurate information, particularly in today’s age of portable cell phone numbers, Skype, and Voice over Internet Protocols (VoIP).
(3) Credit Information In recent years, the federal government has placed a number of restrictions on the ability of third parties to access and use credit information. Most important here is The Fair Credit Reporting Act (“FCRA”) and subsequent amendments. FCRA not only restricts how a third party can obtain credit information about an individual, but it also places requirements on third parties to make certain notifications to individuals when certain actions (including employment decisions) are taken using that information.
(4) Nationwide Criminal Records The closest thing to a nationwide criminal records check in the United States today is the National Criminal Information Center (“NCIC”) database. Access to this database is strictly limited to law enforcement agencies and authorized criminal justice organizations; private investigators and information brokers do not have access to its contents. For more on this, see our prior posting The Truth About Access to National Criminal Records.
(5) Comprehensive Individual Profile Type “background investigation” into Google and you’re sure to be bombarded with claims of “Only $19.99 for a complete background check!” or “$14.95 for instant background investigations!” Such claims are dangerously overstated – it’s virtually impossible feat. Buyers beware…these bargain sites generally just pull together information from various online sources. They are not comprehensive and miss many online public records (not to mention those records that haven’t yet made it out of the courthouses and onto the web!). Whatever information is provided in the “investigation” is frequently filled with inaccuracies and extraneous details.