Researchers discuss the regulation of the private investigation industry.
If private investigators collect information from your Facebook account, can they share it with their client to take legal action against you?
In the United States, the answer to this question depends on the constitutional limits of the Fourth Amendment.
What if the investigators obtained information illegally and fail to tell the law firm that hired them how they got the information?
This activity would likely violate the attorney’s professional liability obligations, as standard rules of professional conduct hold attorneys accountable for the conduct of third parties they supervise.
Many lawyers and large law firms hire private investigators to gather information related to litigation. These private investigators may use social media research, GPS tracking, or sometimes other covert strategies such as pretexting – the practice of using a disguise to obtain information from a target – to gather information. for their client. The legality of attorneys’ use of private investigators who engage in some of these most deceptive behaviors is widely debated in US courts.
Despite the high stakes and complicated legal rules, some private investigators operate legitimately without a license or formal training. In 2019, just over 96,000 private investigators were employed in the United States. The federal government does not regulate the private surveillance industry, and regulation of these investigators at the state level varies widely. Most states such as New York require private investigators to apply for and maintain licenses, but other states, such as Idaho, do not regulate private investigators at the state level.
Lawmakers outside the United States also inconsistently regulate private investigators. Experts from other countries have expressed concern about the lack of regulation of the private surveillance industry.
In this week’s Saturday seminar, we look at recent expert scholarship examining the regulation of the private surveillance industry around the world.
- There are fewer regulations for privatized surveillance than for public surveillance practices, explains Kevin Macnish of the University of Leeds in a chapter of his book titled The Ethics of Surveillance: An Introduction. As a result, Macnish argues that it is difficult to define the ethical limits of private surveillance. For ethics in private investigations, Macnish highlights honesty issues that can arise when an investigator uses pretense tactics to obtain information. In assessing the ethical nature of privatized surveillance, Macnish notes the importance of considering the proportionality of the extent of surveillance to the harm caused.
- The lack of regulation of private investigations in Australia has historically caused unease within the industry, says Michael King of Australia’s Charles Sturt University, in an article. King highlights a report by the Australian Law Reform Commission which found that the work of private investigators often leads to privacy breaches and breaches of confidentiality. King points to the lack of current private investigative work by Australian experts and stresses the need for greater regulatory attention to licensing processes for private investigators to combat privacy concerns.
- International criminal courts must exclude evidence that private detectives obtain illegally, insists Alexander Heinze of the German University of Göttingen in a newspaper article New revision of criminal law. These illegal methods include bribery, preparation of false evidence, and improper use of evidence. Heinze argues that procedural laws apply not just to state actors, but to the entire criminal justice system. Heinze explains that due process should require that the rules excluding illegally obtained evidence apply to private investigators.
- Given that Swedish regulations fail to establish the legitimacy and accountability of the private security industry, Peter Stiernstedt of the University of West London recommends the revision of Swedish private security regulations in a forthcoming article in Policing: A Review of Policy and Practice. Through interviews with key stakeholders and experts, Stiernstedt finds that regulators lack the power to hold private security companies accountable to existing regulations. Stiernstedt also warns that an increase in private criminal investigations could lead to police complacency, which could, in turn, reduce public confidence in the criminal justice system.
- In an article to be published in Boston University Law Journal, Danielle Keats Citron of the University of Virginia School of Law and Daniel J. Solove of the George Washington University School of Law describe the connection between private investigators and the physical harm that can arise from privacy breaches. Citron and Solove claim that releasing personal data to entities such as private investigators can lead to opportunities for bodily harm. This physical harm typically occurs when people in possession of sensitive personal information “negligently, knowingly, or willfully” allow a third party to harm another person, according to Citron and Solove. The authors attribute the perpetuation of physical harm caused by privacy breaches largely to the reluctance of courts to recognize data disclosure as a source of physical harm and call for legal recognition of these harmful outcomes.
- Ukraine currently has no law on private detective work, says Veronica Horielova of the Ukrainian University of Economics and Law KROK. Horielova notes that privacy, private property, accuracy and accessibility are universal components of codes of ethics for private investigators in other countries. Horielova argues that research into the ethics of private detective work should form the basis of any new laws regulating private detectives’ use of emerging surveillance technologies.