Archive for the ‘Privacy’ Category

Facebook profiles — “info” and “wall” pages — are often viewable to others in the same network, providing historical and real-time intelligence for your investigations. All this can be done passively without a special request to “friend” them. I have a link (named, Adversary’s Social Network Profile – Admissible in Court) on my social bookmarking site to an article that discusses the admissibility in court of webpages and content from social network profiles.

Admissibility also concerns public records, publicly available personal information and violations of privacy. There are legal and ethical issues that arise in methods of information gathering. Some techniques may be acceptable in an investigation to gather background or investigate fraud that should not be used in litigation. That said, there are ways to passively view content that takes advantage of technical glitches in applications and of a users privacy settings. One of the people I follow on Twitter (see my sites at twitter.com/PIbuzz and twitter.com/ThompsonPI) is twitter.com/BrettTrout. He provides a Google query to obtain private notes that Facebook participants have added to their sites. I have a link to this at my Twitter pages. If you want to search for notes on a particular user’s profile, just insert her name in the search bar as part of your query.

Alaska is purported to have instituted one of the strongest identity theft protection laws through HB 25.

Although the bill sets out restrictions on the collection, sale and distribution to third parties of Social Security numbers, the exceptions should cover the normal course of business for private investigators.

A transfer of an individual’s social security number for the sole purpose of identifying a person about whom a report or database check is ordered, received, or provided is not a sale, lease, loan, trade, or rental of a social security number under this section.

Providing your clients an individual’s social security number is permitted if the purpose is regulated by the Gramm-Leach-Bliley Financial Modernization Act or by the Fair Credit Reporting Act. Disclosure is permissible if it’s “for a background check on the individual, identity verification, fraud prevention, medical treatment, law enforcement or other government purposes, or the individual’s employment, including employment benefits.”

Also, the police department may create a database of identity theft victims. If it does, it “shall provide a victim or the victim’s authorized representative access to a data base established under this section to establish that the individual has been a victim of identity theft. Access to the a data base established under this section is limited to criminal justice agencies, victims of identity theft, and individuals and agencies authorized by the victims.”

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.

The profile you proudly blast across the Internet today may be one that makes you cringe tomorrow. Perhaps this is more the case as the general use of the Internet grows out of adolescence. You need not quake because for every Web faux pas there is a fee-based solution. DefendMyName claims to “replace negative Internet postings with positive information about you or your business” and to elevate your propaganda above the negative portrayals found through the search engines. Essentially, this service finds relevant social networking sites and adds your profile, and posts your personal image press release on relevant business and industry forums.

ReputationDefender speaks to the fear of the job seeker or parent that there may be some virtual image that needs cleansing. After they find these declarations (much of that, no doubt, created by the subject), reputationdefender sets about contacting “third parties, including creators of unwelcome content, hosts of unwelcome content, and other parties who might have control or authority over such content.” The User Agreement addresses any inclination you may have to engage this service targeting someone other than yourself. Search engine optimization is a more technical phrase for much of what these companies do. Here’s another one.

I guess I can classify my work as reputation research, which I do on behalf of others, not for the purpose of scrubbing an online image but to build a biography of admissions and activities. Researchers and investigators have always done this, but the popularity of the Internet has opened an area of specialized research. Social networking sites, which have been mined by companies for background on potential hires, have also connected people who want to find each other.

Authenticating found material may be difficult due to the anonymous uses of the Internet. Inevitably, people will use this shield to present favorable views of themselves while disguised in a persona. Be warned: Those who “anonymously” say nasty things about others may be uncovered and sued. The ability to alter digital content could have important implications for the dissemination and identification of official government documents and information.

Getting concrete about the work of uncovering reputation for professional uses, the authors of, Finding and Researching Experts and Their Testimony, offer a detailed guide to finding background and verifying credentials of various types of experts. Some of the sources discussed are: use of search engines, expert directories, the expert’s Web site, licensing boards, publications, news, discussion board posts, court dockets and other public records.

An older set of articles on researching people on the Internet is a good introduction.

Various sources for finding background on people are listed at People Finder Guide.

It’s not a new state of affairs when corporate America confuses unethical or illegal activity with corporate governance rights and responsibilities. The self designated all-American business, Wal-Mart, which fired two executives for hanky-panky that violated company policy, had an employee who was busy tape recording telephone conversations with a New York Times reporter. The same employee eavesdropped on board of directors’ meetings. Wal-Mart fired Bruce Gabbard, member of Wal-Mart’s Threat Research and Analysis Group and then got a restraining order to keep him from talking about “Project Red”.

And now we are learning that paranoia has set in at Wal-Mart. The otherwise cost-conscious company spent millions to spy on employees and critics.

First we learned that a Wal-Mart employee taped phone calls between Michael Barbaro, a New York Times reporter, and Wal-Mart officials. This came after The Times reported on a Wal-Mart memo that suggested such clever tactics as forcing all shop clerks to spend some time hauling shopping carts in from the parking lot — the better to weed out unhealthy workers who might submit health insurance claims.

Wal-Mart fired the employee it said was responsible for taping the calls, a man named Bruce Gabbard, and said his actions were unauthorized. Then Mr. Gabbard started talking to The Wall Street Journal, saying the department he worked for had spied on critics. Wal-Mart quickly issued apologies to the critics and got a judge to order Mr. Gabbard to stop talking.

Mr. Gabbard said he told a Wal-Mart lawyer that “I’m the guy listening to the board of directors when Lee Scott is excused from the room.”

[Paranoia and Bugging at Wal-Mart, New York Times, subscription only access]

Lessons Counsel Can Learn From Hewlett-Packard’s Pretexting Scandal explores the dire consequences of unchecked internal company investigations and weak scrutiny of company retained private investigators. The authors offer education in the law and advise on proper investigative approaches.

That is not to say that engaging outside counsel will necessarily insulate an investigation from public scrutiny. First, when advising the corporation regarding any aspect of an internal investigation, counsel should be cautious not to offer business advice as opposed to legal advice; the former may jeopardize the attorney-client privilege. U.S. v. Davis, 636 F.2d 1028, 1044 (5th Cir. 1981). Second, absent a pending investigation or possible civil litigation, internal investigations are not protected by the work product doctrine. Binks Mfg. Co. v. National Presto Industries, Inc., 709 F.2d 1109, 1120 (7th Cir. 1983). HP is a case in point. Because the company was not facing the possibility of an investigation or civil litigation, documents related to the investigation are arguably discoverable. Finally, the attorney-client privilege and work product doctrine do not shield improper techniques used at any point in the investigation. U.S. v. Zolin, 491 U.S. 554, 556 (1989).

[Article via TVC]

The California Supreme Court has ruled that a county trial court must determine whether a psychologist used subterfuge to obtain an interview with the foster mother of a woman who had claimed as an adult a repressed memory of childhood sexual abuse.

Psychologist Elizabeth Loftus, a renowned expert on the fallibility of eye witness evidence and an opponent of the notion of repressed memory, was a defendant in a civil court case that originated in Solano County California. Loftus reviewed a court case file and interviewed the foster mother in preparation for an article she was writing. The foster mother claimed that Loftus posed as a supervisor of the mental health professional in whom the plaintiff had confided. The alleged misrepresentation of the doctor-patient role is apparently the aspect of the invasion-of-privacy claim that concerned the Supreme Court.

At the same time, we also conclude that the Court of Appeal correctly determined that plaintiff’s action for improper intrusion into private matters could proceed based upon the claim that Loftus obtained personal and sensitive information regarding plaintiff from her former foster mother by misrepresenting herself as an associate of Corwin, a psychiatrist with whom plaintiff had a close professional relationship.

Although the opinion asserted that a misrepresentation of the patient-physician relationship is “different from the more familiar practice of a news reporter or investigator in shading or withholding information” this issue is being remanded to the trial court to decide.

The Los Angeles Times report quotes the representative for the news media who reflected on the court’s reasoning saying, ‘ “The problem is you don’t know with any predictive certainty” which sorts of misrepresentations would create liability.’

Also read:
Interview Methods Face Trial
California high court allows suit claiming misrepresentation to proceed, ABA Journal

Who Abused Jane Doe?
The Hazards of the Single Case History
Elizabeth F. Loftus and Melvin J. Guyer
Case histories make contributions to science and practice, but they can also be highly misleading.

What’s your opinion of the relevance of this case to private investigators?