Daniel Solove and Chris Hoofnagle have released version 2 of their Model Regime of Privacy Protection, which incorporates references to criticisms they received from their prior paper. This Model Regime seeks to “regulate information privacy”; its current impetus set in motion by recent data leaks and thefts that haved drawn the attention of Congress. “We hope that this will provide useful guidance to legislators and policymakers in crafting laws and regulations.”
One recommendation in the position paper is that states establish greater uniformity in standards and qualifications for licensure of private investigators. This would benefit our industry. But Solove and Hoffnagle couldn’t restrain themselves from demanding restrictive legislation in investigative practices, such as using a pretext to verify any information.
Each state should be required to establish minimum standards for licensure and oversight of the private investigator industry. Such standards should address the use of pretexting (pretending to be another person in order to gain access to someone’s account or to gain information), establish a duty of care to those who are investigated, and prohibit the use of invasive practices, such as sorting through individuals’ trash, employing electronic listening devices, etc.
According to the ominous sounding Model Regime, private investigators provide limited benefit to society. The authors continue to mine the much sighted instance of the sale of a DMV address, many years ago, to a looney, who then killed Rebecca Shaeffer, while claiming there are “many” such occurrences. No others are noted. The California legislature responded in an baby-out-with-the-bathwater manner by eliminating PI access to DMV address information.
Certainly, there are beneficial examples of private investigators using personal information (i.e., to locate lost children). But private investigators engage in other practices that the public is largely unaware of. Moreover, there are many instances of private investigators assisting unscrupulous individuals, stalkers, and others bent on violence. For example, the stalker who murdered Rebecca Shaeffer obtained her address from a private investigator.133 We believe that because private investigators engage in a significant amount of personal information use that they should be subject to the Model Regime just as other principal users of such data are. Failure to address private investigators would leave a significant gap in protection.
The authors also object to the government’s use of the commercially available personal data to develop patterns pointing to prospective criminal activity. Background screening for pre-employment investigations is also addressed. Download the complete report