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California legislation that the California Association of Licensed Investigators (CALI) is tracking:

Protection of Consumers through Continuing Education
SB 202 [Harman]

Prohibitions against Use of Credit Report Information
AB 943 [Mendoza]

Meal and Rest Periods & Licensed Private Investigators
SB 287 [Calderon] and SB 380 [Dutton]

Flexible Work Schedules
AB 141 [Tran] and SB 187 [Benoit]

Expansion of Paid Sick Days
AB 1000 [Ma]

Fair Concealed Weapon Application Process
AB 357 [Knight]

Timely Testing of DNA Specimens
SB 439 [Wyland]

Insured’s Access to Accident Reports
AB 470 [Niello]- Support

Peace Officer Identification
SB 169 [Benoit]

Restrictions on Technology
AB 255 [Anderson]

BSIS Posting of Accusations and Disciplinary Actions
SB 599 [Negrete McCleod]

Federal legislation that the National Council of Investigation & Security Services (NCISS) is tracking:

HR-2221 The “Data Accountability and Trust Act” by Rep. Bobby Rush (D-IL). A hearing was held earlier this spring. Rep. Rush has pledged to work with another subcommittee chairman on this and other issues relating to the Internet, leading to a vote this summer.

S-139 The “Data Breach Notification Act” by Senator Diane Feinstein (D-CA). The bill is pending in the Senate Judiciary Committee. Chairman Pat Leahy (D-VT) may introduced his own version of data breach legislation. He pledged earlier this year to make privacy legislation a priority.

HR-122 “Protecting the Privacy of Social Security Numbers Act of 2009″ by Rod Frelinghuysen (R-NJ). We met with the Congressman’s staff to urge that an exemption be provided to permit investigators access to critical information.

S-141 “Protecting the Privacy of Social Security Numbers Act” by Senator Feinstein. Although the bill includes a helpful exception for “business to business” transactions, NCISS is urging a more specific exemption.

HR-1529 “Second Chance for Ex-Offenders Act” by Rep Charles Rangel (D-NY). The bill would provide for expungement of federal criminal records.

S-30 “Truth in Caller ID Act” The bill prohibits “spoofing” with the intent to defraud, cause harm, or wrongfully obtain anything of value”.

HR-1409/S560, the “Employee Free Choice Act” This major labor reform would deny employers the right to obtain a secret ballot vote for organizing efforts and would impose binding arbitration in when no first agreement can be reached. It is labor’s top priority and the fight is led by the SEIU which has attempted to organize guard companies.

Government agencies won’t put public records on the Internet but the former Santa Bernardino County Assessor found a technological runaround to making his emails a public record.

A private investigator and the former supervisor of the Worthless Check Division in the St.Tammany (Louisiana) District Attorney’s Office were sentenced to three years’ probation for buying and selling criminal information from the National Crime Information Center database. The DA employee got the heavier sentence — she also lost her job.

Nebraska Supreme Court ruling: Burial records from a state run cemetery are a public record. The Department of Health and Human Services (DHHS) claimed that the federal Health Insurance Portability and Accountability Act (HIPAA) applied because the cemetery was for residents at a former psychiatric hospital. But the court noted that HIPAA allows for the disclosure of protected health information when required by state law, and that Nebraska’s public records laws trumped HIPAA because these are death records, which are open records. Reported by RCFP.

Texas media, private investigators and genealogists are opposing the efforts of the Texas legislature to exempt the dates of birth of government employees from disclosure as a public record. The media has uncovered misdeeds by employees of the Texas Youth Commission — matching dates of birth with employee names — involving abuse of people and the public trust. Shielding dates of birth in public records does not protect the public from identity theft, as legislatures claim when attempting to carve out more public record exemptions.

The phrase “personal information” and “identity theft” have become so intertwined that legislatures have rushed to implement laws which have detrimental outcomes for investigations. Recently codified New York law would subject employers to a $500 penalty for disclosing “personal identifying information” on employees. This will have a chilling effect on release by employers of other information on current or past employees, such as name and job title. This is reminiscent of the California legislature’s failed attempt in 2007 to penalize the release of “personal information about a customer or employee contained in the records of a business…”

It is now a violation of New York law to,

Communicate an employee’s personal identifying information to the general public. For purposes of this section, “personal identifying information” shall include social security number, home address or telephone number, personal electronic mail address, Internet identification name or password, parent’s surname prior to marriage, or drivers’ license number.

Hat Tip: Lexology

Formal disciplinary actions against a California Emergency Medical Technician will now be available as a public record, thanks to AB 2917, signed by the governor today.

AB 2917 will provide the public with with certification and licensure information and create an EMT registry, specified by Section 1797.117 of the Health and Safety Code.

The legislation details the personal information that will be a public record, which is similar to that which is available on other California professional licensees.

The information made available to the public through the centralized registry system shall include all of the following data elements: the full name of every individual who has been issued an EMT-I or EMT-II certificate or EMT-P license, the name of the entity that issued the certificate or license, the certificate or license number, the date of issuance of the license or certificate, and the license or certificate status.

The National Conference of State Legislatures (NCSL) issues topical summaries of each year’s state legislation that has become law. The NCSL report, 2008 Privacy Legislation Related to Event Data Recorders (”Black Boxes”) in Vehicles, will help private investigators stay informed of the legal parameters of the application of electronic surveillance and tracking of of others’ movements. Twelve states have passed laws related to event data recorders in cars. Previously, the National Highway Traffic Safety Administration instituted a rule that requires auto manufacturers to disclose if an event data recorder is installed, starting with cars produced in 2011.

It looks like the California Assembly bill that would have created an Internet Domestic Violence Registry has excised that feature from the recent draft.

The California Sheriffs’ Association has announced that VINELink will soon include all California counties, not just the 17 that are currently at that site. VINELink provides real-time status of offenders in county jails.

Private investigators will have more difficulty finding people in California if proposed legislation, Senate Bill 1423, becomes law. The bill titled, “Unlisted telephone numbers”, would ban phone companies from charging a fee to their subscribers who wish to have their phone numbers unlisted or nonpublished. In that case, won’t everyone in California request that their telephone number listing be private?

The 11th U.S. Circuit Court of Appeals ruled in favor of a law firm that obtained Florida vehicle record information for litigation purposes. The plaintiff had claimed that the firm violated the federal Driver’s Privacy Protection Act in purchasing his vehicle ownership data, but the court said that the law firm met one of the permitted exceptions. However, pending cases may lead to settlements in which ChoicePoint (and other public record providers) voluntarily agree to limit the personal information they release, even if the sale of the data complies with the law.

The Ohio Supreme Court ruled in favor of a newspaper which sought a list of names and addresses of foster care providers maintained by a state family services agency. In a complicated intersection of Ohio state public records access law and federal funding restrictions, the agency must determine which records meet the Social Security Act exception to disclosure.

Selected Laws Governing the Disclosure of
Customer Phone Records by Telecommunications
Carriers, a recently released Congressional Research Service report, summarizes the laws, legislation and congressional actions related to telephone call log records. The Federation of American Scientists has a database of some of these CRS reports, which are selectively released by members of Congress.

Computer Forensic professionals are quickly finding out that several states are now requiring them to be licensed as private investigators.

A recent article in Baseline Magazine details how legislators in South Carolina have introduced pending legislation where “digital forensic evidence gathered for use in a court in this state must be collected by a person with a PI license or through a PI licensed agency.”

The Texas Private Security Board recently made a ruling regarding the licensing regulations which effect computer security consultants and computer forensic examiners. They felt that it is important that these computer related practitioners, as well as the entities hiring their services, are familiar with the licensing regulations, as violations carry steep financial and legal penalties.

There is no doubt that these regulations will cause computer forensic experts to create strategic business alliances with private investigators to insure that evidence they collect is not thrown out of court over licensing issues.

What do you think about this? Should computer forensic experts be required to have a PI license? Do private investigators have the necessary training and expertise to conduct computer forensic examinations?

The online telephone directory, 411.com isn’t just for finding listed telephone numbers. Use it to identify current employment or to expand the employment history profile of your subject. A search on my name in California returned 40 results. Some are home listings, but other records are work contacts. These are extracted from the Internet - Web pages and Zoominfo - and may supplement the business associations found at various other people finder sites.

Google the work designation “Mt Diablo Soccer League” to find a photo, phone number and email for this Tamara Thompson.

Most of the free lookup, fee-based people finder sites - PeopleFinders, Voompeople, Privateeye, to name a few, - contain the same data, although those may list corporation and DBA records not found at 411.com.

The recent proposal by the governor of Connecticut requiring that these sites offer a blanket opt-out to residents likely won’t get legal traction. The Internet people finder databases and telephone directories already have opt-out procedures, and their information is gathered from government public records and published directories. Governor Rell has stated that this measure would address safety concerns for the elderly, who are often targeted in financial scams.

The Ohio Office of Homeland Security, which licenses security guards, is having trouble keeping an accurate count of licensees since a recent requirement went into effect that employers register each new security guard hire. [State system doesn’t allow exact accounting of security guards, CantonRep.com, May 29, 2007.]

The state estimates about 21,000 individuals holding security guard licenses but says that number could be inflated by as much as 3,000 since employees are registered each time they go to work for a new company, meaning some could be registered multiple times.

Meanwhile, changes in access to public records in Ohio may make it difficult for even law enforcement to do background checks. Recently passed legislation shields personal information in public records on some government employees and their family members.

The New York Drug Dealer Registry Act, recently introduced legislation, would require drug dealers with felony convictions to register upon release from prison.

The North Carolina Court of Appeal ruled against a newspaper that sought clemency appeal applications under the state public records law. [North Carolina Appeals Court Holds That Public Records Act Does Not Apply to Clemency Applications, Media Law Prof, June 7, 2007]

The Pennsylvania Supreme Court agrees with the Pittsburgh Tribune-Review that juror names are releasable under the state public records act. The newspaper was rebuffed in its request for juror addresses. [Names of criminal trial jurors are public, RCFP, June 5, 2007]

The Arizona Court of Appeal agreed with Phoenix Newspaper, Inc. that a claim for damages made against a school district is a public record, even in the case of a rape of a minor. [Ruling: Rape victim's compensation claim public record, Arizona Republic, June 12, 2007]

A few months ago I wrote about the California Department of Alcoholic Beverage Control maintains License Query System. An added feature to the ABC site is daily, weekly and annual reports of new licenses, license status changes and actions taken against licenses including, revocations, suspensions, fines, and issuance or denial of licenses. The database of reports cannot be searched at the site. Search the archived reports from September 16, 2006 to the present by using this advanced search at Google. Replace “Safeway” with your company name, address or other key words.

safeway site:www.abc.ca.gov/reports/

Reporters and anyone compiling statistical data will be able to make use of the reports menu at the ABC site. Query the reports by location and license type to get a detail of all that meet that criteria. For example, find all the caterer licensees in Azusa.

Washington State law now bans employer access to the credit reports of employees or potential employees unless such information is substantially related to the individual’s current or potential job responsibilities. An exception is made if the employer has a “reasonable cause to believe” that the employee “has engaged in specific activity that constitutes a violation of law.”

Missouri private investigators are poised to receive the stamp of legitimacy with the establishment of the Board of Private Investigator Examiners, which will license and regulate private investigators. The bill is awaiting the governor’s signature, which is expected this summer. The Missouri Association of Private Investigators has worked diligently to secure state level licensing and soon they’ll be able to join the majority of states that license PIs.

New regulations for Indiana private investigators will go into effect July 1, including the replacement of the term “private detective” with “private investigator”.

The Wisconsin Supreme Court will decide whether property assessment databases created on behalf of municipalities by private companies are a public records.

Legislation introduced in Pennsylvania would make it a crime to obtain, sell or receive phone records of state residents without their authorization.

Gifts, investments, outside income, business relationships and other economic interests of top public agency employees and elected officials of San Bernardino County, California are now posted online in a database. Search by filer name, filing date, position or department name. San Bernardino is the first California county to put these records online, according to a report in the Riverside Press-Enterprise.

The Statement of Economic Interests, California Fair Political Practices Form 700, is filed each year with the government official’s home county, or with the state Fair Political Practices Commission for state elected officers, legislators, judges and court commissioners, and members of the state boards and commissions.

The San Bernardino County filings begin with 2006; the home addresses are redacted from the forms.

Maryland law now allows people arrested but not charged to expunge their police records.

The Nevada Senate is considering AB600, which has passed the Assembly, a bill that will allow people to redact their personal identifying information from public records which they previously filed. The last 4 digits of the Social Security number are not personal information and will be allowed on public records. The 4 number identifier will be required on judgments.

The Idaho state Supreme Court ruled that emails sent between county employees are public records.

Even though federal law makes certain student records confidential that does not prevent the public release of redacted student disciplinary records, according to a decision by the Montana Supreme Court.

It appears that a case involving the hiring of an out of town private investigator on a death penalty case may have an impact on how the state pays court appointed investigators.

It all started when a Hillsboro lawyer hired Dave Panter, an ex-cop from Tillamook and an investigator from a nearby county to defend a murder case. However, the state Office of Public Defense Services refused to cover the investigator’s travel expenses from his office to Hillsboro.

The state offered to pay for Panter’s hotel and meals in Hillsboro, but it refused to pay him the standard state rate of $34 an hour for a capital case, plus 40.5 cents a mile for gas, to make the 60-mile drive between Tillamook and Hillsboro.

Since the state has refused, and a Washington County Circuit Court judge is set to decide the issue in a hearing Thursday, May 10.

“These guys haven’t had any raises since the 1970s,” says Barbara Baughman, a Portland private investigator who charges $75 an hour.

What do you think about the fees and expenses associated with court appointed investigator cases?

The abundance of state legislation restricting access to public records is depressing for open government advocates. But the head in the sand approach won’t preserve access, so here are some of the Bills under consideration by state legislatures.

New Hampshire

HB 269, An act prohibiting “pretexting” as a means of obtaining personally identifiable information, would invoke civil penalties for any use of pretexting to obtain any personally identifying information.

HB 686 would prohibit anyone from electronically tracking another person without that person’s consent.

HB 729 includes a prohibition on retaining or storing personal information on drivers’ licenses in an electronic form.

Arizona

Legislation introduced in Arizona aims to remove all victim information from police reports before they’re released to journalists, attorneys, private investigators or the public in general. SB 1286 states: “A victim’s contact and identifying information that is obtained, compiled or reported by a law enforcement agency shall be redacted by the originating agency in publicly accessible records pertaining to the criminal case involving the victim. “

SB1286 has other flaws as well. By requiring law enforcement to keep victim information out of public records (instead of redacting or blacking out the information when appropriate), the bill could force police agencies to spend millions of dollars to install new computer software and to redesign reports in order to create two sets of documents — one for public release and one for the criminal justice system to operate fairly.

California

California State Sen. Ron Calderon has introduced SB 690, legislation that was expected to allow District Attorneys to release personal information on arrestees and parolees, which an Attorney General Opinion had said violated the right to privacy. Unfortunately the bill appears to have become restrictive to the point that private investigators and the public might have more difficulty obtaining police reports under the California Public Records Act.

Notwithstanding any other law, a local agency may, in response to a written request made pursuant to Section 6253 of the Government Code, provide information from a local summary criminal history, if the person making the request declares under penalty of perjury that the request is made for a scholarly or journalistic purpose and the release of the information would enhance public safety, the interest of justices, or the public’s understanding of the justice system.

California Assemblymember Dave Jones has submitted AB 1168, a bill regulating public records which contain social security numbers.

The California Public Records Act requires state and local agencies to make their records available for public inspection unless a record is exempt from disclosure. The act exempts from disclosure, among others, any record that is a personnel, medical, or similar file the disclosure of which would constitute an unwarranted invasion of personal privacy.
This bill would provide that, notwithstanding these provisions, a local agency shall not disclose to the public any record that is required to be open to the public by any provision of law if that record displays more than the last four digits of any social security number.

SB 216 would allow only the last 4 digits of a judgment debtor’s social security number to appear on public records. SB 644 is similar.

A vague bill, AB 703 requires that records containing social security numbers be destroyed.

Last year’s failed bill, SB 1666, has returned in the form of SB 328, Personal Information: Prohibited Practices.

The bill would also prohibit any person, as defined, from, among other things, obtaining or attempting to obtain, or causing or attempting to cause the disclosure of, personal information about a customer or employee contained in the records of a business through specified methods, such as by making false, fictitious, or fraudulent statements or representations, with specified exceptions.

New Mexico

Two bills at the state legislature would make private records that are currently public. New Mexico publicly-owned utilities must provide copies of all its records, under current law, but the presumption of openness that has characterized the release of government records shifting toward closure.

One proposed law, HB 279, from Rep. Jeff Steinborn, D-Las Cruces, would prohibit the disclosure of consumers’ nonpublic personal information.

Another bill, House Bill 1027 from Rep. Patty Lundstrom, D-Gallup, would exempt from the right to inspect public records any law enforcement record of “individuals accused but not charged with a crime,” discharge papers of a veteran and “the residential addresses of customers of municipal or county utilities.”

Is your state government proposing similar legislation?

Add Florida to the list of states that are concocting ill conceived “identity theft” legislation. Before long it’ll be a crime to know another person’s name. HB 1117 seeks to make possession of personal identifying information on a person without their prior approval a felony. The legislative staff analysis provides a summary.

HB 1117 also creates a new section of statute which provides that any person who willfully possesses “sensitive personal information” concerning an individual without first obtaining that individual’s consent commits a third degree felony. The term “sensitive personal information” is defined to mean any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual
including any:
• Alien registration number
• Government passport number
• Employer or taxpayer identification number
• Medicaid or food stamp account number
• Bank account number
• Credit or debit card number
• Unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation

Unlike the identity theft statute, this section will not require proof that the person possessed the sensitive personal information with intent to fraudulently use it – only that the person willfully possessed it without first
obtaining permission of the individual.

Florida Bill HB 1211 would make distributing personal information without that person’s permission a misdemeanor. Are legislators being lazy in crafting laws that are so broad, or are they trying to bring legitimate business and the functions of the courts to a complete standstill?

HB 1213 bars the release of personal identifying information in public records. Other proposed legislation would remove certain information from court files and restrict the release of motor vehicle records.

I’d like to hear from private investigators, attorneys and journalists in Florida about the prospects of these measures. I sure hope they’re all working together.
AP story: Scores of legislative bills seek to limit public’s access to Florida records

On a more upbeat note, an Oregon government site has created a directory and search engine for locating databases of city, county, state and federal licenses, certifications, permits, and registrations. Quickly locate the Web site to lookup professional licenses and business permits. This is an ongoing project and most of the current links are state agencies.

A Kansas newspaper editorial elucidates just one of the many reasons why the Kansas Supreme Court’s mandate that government agencies redact personal information before releasing records to the public is harmful. The case is Data Tree, LLC v. Bill Meek, Sedgwick County Register of Deeds.

Unsolved criminal case files may be public records, not necessarily “open investigation” cases, according to the Georgia Court of Appeals. The court sided with the newspaper in, Athens Newspapers, L.L.C. v. Unified Government of Athens-Clarke County, which asserted that a 1992 unsolved murder case was dormant and the police were defeating the purpose of the Open Records Act by claiming the case was still pending.

According to numerous wire releases, it appears that the private investigators implicated in the Hewlett-Packard Co. scandal, will avoid jail time in a no contest plea deal to misdemeanor charges on fraudulent wire communications in California.

In a statement issued by the Attorney General’s Office, the court did not accept the plea from investigators, Ronald DeLia, with the private investigation firm of Security Outsourcing Solutions Inc. and Matthew DePante, a third-party consultant working with Action Research Group. Rather, the judge offered to officially dismiss the case against them in September if they complete 96 hours of community service and pay restitution to victims.

Another defendant, private investigator Bryan Wagner, who previously worked at Action Research Group, also was charged in October. The state’s case against him was dropped after Wagner pleaded guilty to the same charges in federal court and agreed to testify for the prosecution.

The investigators were initially charged in October with four felony counts: use of false or fraudulent pretenses to obtain confidential information from a public utility; unauthorized access to computer data; identity theft; and conspiracy to commit each of those crimes. Each of those charges carried a fine of up to $10,000 and three years in prison.

While the deal with state prosecutors allows all the defendants to escape jail time, federal prosecutors have said their investigation of the HP leaks probe is ongoing. The saga continues…what do you think?

An initiative on the California ballot that would require police officers “create an audio-visual recording of all contacts with or searches of citizens” is now gathering signatures. If approved by the voters, the measure would mandate that “a copy of the recording be provided to affected citizens who are arrested and charged with a crime.”

The recent closure of police disciplinary records throughout California has prompted the introduction of AB 1648, Peace officer records, which would make information in certain disciplinary records pertaining to peace officers available to the public.

The swinging legislative pendulum in Missouri would restrict the release of police internal affairs records. Michigan already has limited access to police discipline files.

Should private investigators have access to police disciplinary reports or officer activity videotapes?

Let’s get right to it. Congress is attempting to take away the tools of our trade. Private investigators want to stop the fraudsters but it’s counter productive to restrict private investigators, judgment collectors and process servers from accessing social security numbers to locate people and verify identities.

Congress has reintroduced legislation that private investigators fought last year but has come back in the form of The Social Security Number Protection Act of 2007, HR 948, which would prevent obtaining or providing “directly or indirectly, anything of value in exchange for a social security number” and the similar, Senate bill S. 238. As currently worded, there is no exception for private investigators.

So, if you pay for a database service that matches your subject’s name with a social security number you’ve just violated this proposed law. How are we to locate witnesses for court, reunite separated families and perform background searches? Don’t let this bill become law. Join NCISS and associations actively opposing it. Meet with the folks who represent you in Congress. Let them know private investigators aren’t “buying” social security numbers but we use SSNs for valid legal and business purposes.

As currently worded, Preventing Harassment through Outbound Number Enforcement (PHONE) Act of 2007, commonly known as caller-id spoofing, restricts the transmission of one person’s phone number to a third party in an attempt to disguise the caller’s identity. I guess as long as the caller doesn’t “spoof” the recipient with an actual person’s telephone number then they would be within the bounds of this law. It’s still a badly constructed piece of legislation. And, as with every other wave of the wand from Congress, add the law enforcement exception. Are you scared yet?

A federal bill to establish a nationwide drug dealers registry has been referred to the House Committee on the Judiciary. HR 304, quaintly entitled, Clean Town Act of 2007, if enacted, would set forth “guidelines and incentives for States to establish criminal drug dealer registries and to require the Attorney General to establish a national criminal drug dealer registry and notification program…” From the point of view of a private investigator this would be another research tool, but for the criminally charged it’s another nudge toward a public national criminal offender database.

Other introduced federal legislation would expand on the recently enacted Telephone Records and Privacy Act of 2006. S.92, Protecting Consumer Phone Records Act would make it unlawful to “acquire or use the customer proprietary network information of another person without that person’s affirmative written consent…”

Continuing on the consumer privacy theme Senator Feinstein has submitted two bills related to the release of personal information. S. 238, concerns the misuse of Social Security numbers; S. 239 would “require Federal agencies, and persons engaged in interstate commerce, in possession of data containing sensitive personally identifiable information, to disclose any breach of such information.” Text is not yet available for either measure.

The Texas legislature is entertaining a number of bills that could impact private investigators. SB 123 would block release of certain personal information on minors; SB 48 would redact social security numbers from county public records; HB 73 prohibits acquisition of telephone records without the subscriber’s permission; HB 87 is similar to a bill private investigators and the motion picture industry defeated in California that would have prevented anyone from acquiring personal information in a business record.

Indiana House Bill 1046 will prohibit “a person from transmitting false or misleading caller ID information through a caller ID service.”

You would never think that a law would be needed to video tape on your own property, but an online news article reports a NH Legislator wants to make sure the law is clear.

A Nashua man was actually arrested after his home security camera made video and audio recordings of detectives who had come looking for his teenage son. Felony wiretapping charges against him were later dropped.

Rep. Dudley Dumaine and five other sponsors introduced House Bill 97, which would add an exception to the state’s wiretapping law, letting property owners record their own premises, with or without warning.

The Virgina legislature is entertaining bills that would alter public records.

For example, there’s a bill to remove Social Security numbers from court documents and land records. Another would remove Social Security numbers from voter records before those records are sold to anyone in another state. A third just makes it generally illegal to make publicly available someone else’s Social Security number, even if the number was gotten from public documents.

Some California police departments have had the support of judges in keeping search warrant affidavits out of court files. All this may change because of an appeals court decision.

The Superior Courts in Los Angeles and Orange counties have for years allowed police to keep the only version of the sealed affidavit they use to obtain a search warrant without filing a copy with the court, a practice that defense attorneys said was rife with potential abuse.

The use of the procedure in Orange County began receiving attention two weeks ago, after a state appeals court ruling in a local case involving a search warrant.

Asked by a reporter, Los Angeles County Superior Court officials said this week that judges there also allowed officers to keep the sealed affidavits.

The practice was so little-known that the Los Angeles County public defenders office, with one of the largest caseloads in the country, did not learn about it until the appeals court decision.

Keeping the previous story in mind, it comes as no surprise that the First Amendment advocate, Californians Aware, has uncovered wide spread violations of the California Public Records Act by law enforcement agencies. Read the report, Public Access to Law Enforcement Information, which includes statistics and a database of audit results by agency.

Medical privacy does not have primacy over the collection of unpaid bills, according to a Mississippi Supreme Court ruling. The collection agency included an itemized medical invoice in a court filing, but that action did not breach patient privacy because it didn’t contain confidential doctor-patient communications.

Iowa Court records related to juveniles will no longer be included in the court system’s online database.

Under a new law starting this month, names of juveniles who are ten to 17 will only appear online when a case is completed and the individual has been found guilty.

(Posted on behalf of NCISS and written by Bruce Hulme)

President Bush signed H.R. 4709, the “Telephone Records and Privacy Act of 2006″ on Friday, June 12th. This Bill passed the House last April and the Senate on the last of the 109th Congress in December.

In addition - Bryan Wagner, a Colorado “private investigator” formerly in the employ of Action Research Group, was the first “player” in the Hewlett-Packard scandal pled guilty to federal charges. He is expected to testify against others that have or will be charged in connection with obtaining telephone records and computer information. Charges are also pending in the California court.

H.R. 4709 bans pretexting of telephone companies and their customers for “Confidential Phone Records Information.” Chapter 47 of title 18, United States Code, is amended by inserting “Sec. 1039. Fraud and related activity in connection with obtaining confidential phone records on a covered entity.” Key elements in this criminal violation are interstate or foreign commerce, making false statements to a covered entity, its employees, the customer or knowingly providing a false or fraudulent document to the entity or accessing customer accounts via the Internet, or by means of conduct that violate section 1030 of this title, without prior authorization from the customer.

There is a prohibition on the sale and transfer of Confidential Phone Records without prior authorization from the customer. A prohibition also exists in knowingly and intentionally purchasing or receiving (or attempting to do so) such information without prior authorization from the customer or if one has reason to know that such information was fraudulently obtained.

While recognizing that there have been exigent circumstances where accessing telephone toll records by investigators assisted in saving lives, locating abducted persons and recovering stolen property, NCISS still supported H.R. 4709 on the basis that the mood in Congress was to put forth legislation that would have expanded making pretexting illegal in areas other than just obtaining telephone records. The unintended consequences would have outlawed undercover operations in by the private sector; and that is just one example. Our analysis, even prior to the unfavorable publicity generated by the H-P matter, was that if HR 4709 failed to pass in the 109th Congress, in 2007 it would return with additional privacy protections and make the use of pretexting for any reason in a non-law enforcement setting illegal. Such measures could still be introduced in other legislation as the 110th Congress gets underway in 2007.

This week Senator Feinstein introduced two bills that NCISS will be watching very closely, S 238 the Social Security Number Misuse Protection Act and S 239 the Notification of Risk to Personal Data Act of 2007.

Every bill that NCISS took a position against in the Senate and House during the past two- year session of the 109th Congress, failed to be enacted into law. However, we expect our work will be considerably more difficult the next two years with both the Senate and House being controlled by the Democrats.

It is important that NCISS increase its membership and lobbying “war chest.” Any inquiries regarding applications for membership or contributing to the NCISS Legislative Committee Fund may be directed to the contact address below.

Bruce Hulme, NCISS Legislative Director

NCISS
7501 Sparrows Point Blvd.
Baltimore, MD 21219
Tel: 1-800-445-8408
email: nciss@verizon.net
or go to: www.nciss.org

Several media outlets, including CBS News, Mercury News, and the Computer Business Review are reporting that one of the private investigators charged in the HP scandal will plead guilty today under a plea deal.

It is reported that 29 year old Bryan Wagner, of Littleton, Colorado is expected to enter a guilty at a scheduled arraignment hearing today in a San Jose federal court.

According to Stephen Naratil, Wagner’s lawyer, his client “accepts the full responsibility for what he’s done, although he never thought or intended his actions to be illegal…“He was assured numerous times that what he was doing was legal.”

It appears that federal prosecutors applied the preasure and presented an offer to Wagner in return for his cooperation. There is no doubt that Wagner’s testimony about his involvement will help federal prosecutors develop a case against all those involved.

Under the proposed deal, Wagner faces a two year manditory prison sentence on identity theft charges and a maximum of 5 on the conspiracy charges.

This is a very important case to follow as the results of the federal probe, potential convictions and penalty phase will have a significant impact on future legislation. The January issue of PI Magazine features several articles about the HP scandal and our responsibilities as investigators to remain ethical, at all times, on all cases.

What’s your opinion on this? Add your comments below.

If you’re inclined to track legislation by keywords you’ll want to take a look at the index to Legislative Bills, Constitutional Amendments, and Resolutions introduced in the California Senate and Assembly for 2005-2006. The indexed terms reference the Assembly and Senate Bill numbers. Although this is a retrospective assemblage, it is well indexed and helpful for finding legislation by categories.

Search all chaptered bills by keyword or bill number.

Read past reports and current research of the California Law Revision Commission, “a state agency responsible for studying problem areas in California law and recommending needed reforms to the Governor and Legislature.”

Federal legislation that is awaiting the President’s signature:

H.R. privacy related 4709: Telephone Records and Privacy Protection Act of 2006 (Passed Both Chambers)
Passed Senate by Unanimous Consent.
To amend title 18, United States Code, to strengthen protections for law enforcement officers and the public by providing criminal penalties for the fraudulent acquisition or unauthorized disclosure of phone records.

Review legislation that was enacted in the state legislatures in 2006 by topic: identity theft, breach of information, event data recorders, the use and recording of social security numbers and financial privacy. The California Office of Privacy Protection lists privacy related legislation that was enacted in California in 2006.

Federal legislation that we may face in 2007: H.R. 5304: Preventing Harassment through Outbound Number Enforcement Act

H.R. 5126: Truth in Caller ID Act of 2006

Senator Leahy, the incoming Chair of the Senate Judiciary Committee, has announced his intention to reintroduce S.B.1789: Personal Data Privacy and Security Act of 2005. Leahy referred to this legislation in remarks he made to the Georgetown University Law Center.

Senator Specter and I have worked on a good data privacy bill that was reported by the Committee two years ago but never taken up by the Senate. The proliferation of data brokers and the burgeoning market for collecting and selling personal information intrude on the privacy of all Americans.

View the video of Sen. Leahy’s speech, Ensuring Liberty and Security Through Checks and Balances: A Fresh Start for the Senate Judiciary Committee in the New 110th Congress.