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?

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.

Canadian private investigator, Kevin D. Bousquet has an extensive analysis of the detrimental effects of privacy regulation on the public and the everyday work of attorneys. [Thanks: Ca Privacy Law]

The public is in panic over crimes like impersonation, bank fraud, mortgage fraud and insurance fraud all things the private sector investigates every single day. They are the answer to the problem not the cause. All of the tools that hold personal data are needed to investigate but are slowly cutting off the private sector slowly over time.

In Provinces like Quebec and Alberta, PI’s have no access to government motor vehicle information. They can’t even run a license plate to follow an insurance claimant or a driver’s record to see previous driving infractions.

How are we expected to do insurance claim investigation if we have no access to vehicle or driver information? How is a PI supposed to help a person enforce a judgment or child support order when for the most part credit bureaus make it virtually impossible for PIs to have access even if they have a certified copy of a Judgment or Support Order?

The legal is community is in big trouble they just haven’t realized it yet. Sooner or later would be Plaintiffs and the general public are going to realize that when they sue in court attempting to recover their losses even if they win their case if defendant simply refuses to pay there is every likelihood their court ordered judgment or monetary award could be nothing more then a worthless piece of paper.

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.

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.