What Private Investigators Can Legally Do
Beyond their reputation for highly advanced snooping techniques, private investigators are legally allowed to do just about the same things as any other average citizen. They can conduct surveillance, run background checks, reach out to informants, or even do some dumpster diving in an effort to collect information. While they have certain special tools and insights into investigation as a profession, they are still under the same rule of law as the rest of us.
That said, the most ethical and responsible private investigators are aware that when they step over the line of legality, they take with them their own credibility as professionals. Ethical private investigators know how and where to draw the line on legal activity , as well as how to collect intel without getting themselves or their clients into trouble.
When a client requests information, the private investigator should inform the client of the legal limits of their work, covering any areas where the client should not make demands. They are also able to inform the client of any legal avenues they can pursue to gather the information they need, and help them navigate those avenues. Basically, they’re leaders and guides through the legal process, not just intel collectors.
Professional private investigators often try to stay out of the courtroom, operating their investigations by the book. They know how the law around investigating works, how to work with law enforcement, and how to play nicely by the rules. There’s a huge difference between being a cowboy and being a professional professional.
Legal Surveillance Techniques
While private investigators have many surveillance tools at their disposal, they must be careful to ensure that their use of these tools does not violate any California law. Surveillance is not as simple as taking a photograph or video recording of person and does not provide a free-for-all to follow an individual. The purpose of conducting surveillance is often to follow an individual to determine any unusual activities. It is critical to ensure that surveillance is done in public places and not in private residences. California defined a private place as any room, or portion thereof, set apart by a structure or other enclosure for the primary purpose of using that room or portion as a residence, hotel or lodging, place of business, or other place where one would reasonably expect privacy. (Cal. Penal Code § 647(j).) It is also a violation of the California Penal Code to use a concealed camera or other device to look into a private place. Moreover, it is a violation of California law to invade a person’s reasonable expectation of privacy with the intent to invade privacy. For example, it would be a violation to video record a hug between a husband and his wife, or to video record a minor child with the intent to capture the minor’s genitals. A private investigator is free to video record an individual in a public place if the private investigator is not interfering with the subject in any way. For example, a private investigator can video record the employee of a business entering and exiting a business if the private investigator is not interfering with the employee in any way. In fact, a private investigator can use high-powered video cameras to capture activities inside a public place so long as it is done for a legitimate purpose.
How Private Investigators Can Legally Obtain Records
Private investigators generally gather background information from public access records and databases. Such records are specifically open to the public for examination and viewing. Any restriction of privacy in these records is governed by statute or regulation and must be balanced with legitimate law enforcement and investigation needs. We have it on good authority that by law, criminal records must be included in any background checks – unless they have been sealed or expunged.
Databases, whether available online or through software, are regulated and limited by the states. In California, an investigator must have a "privilege" for Internet record searches – as explained in the Department of Consumer Affairs Bureau of Security and Investigative Services newsletters.
Investigators may do many types of background searches, such as credit checks, liens and judgments, bankruptcy filings, even in car accident cases, and certain court documents are available. The threshold question is "Why does the investigator need these records?" If the purpose is legitimate, then the investigator may access them, as long as they are not sealed or expunged.
A list of private investigator databases for the legal search of public and private databases is below. Most not all investigative services should have this kind of access of information. Databases are restricted in what they contain. For example, while most all investigator databases can do searches of California vehicle registration, there are less expensive databases that can do most all of the same tasks as the ones commonly used by most people in the profession.
Legality of Technology and Equipment
As noted previously, private investigators have access to a wide range of advanced technology and tools that make their jobs easier and more efficient. What’s important to remember is that there are legal guidelines around how they can use these tools as well.
For example, while GPS tracking is perfectly legal, placing a GPS device on another individual’s vehicle without their consent is not. Some states allow trackers to be placed on vehicular fleets owned by a company without the consent of the drivers, but with signage on the vans indicating that the company uses these devices.
Private investigators will sometimes come to you with information pulled from a suspect’s cell phone or computer. Things like GPS history, as well as internet queries and emails, fall into a legal gray area. While it’s generally illegal to gain access to a suspect’s computer and run a search, if the subject leaves their computer unlocked at work, it’s fair game. The FBI has legal access to a suspect’s email while a case is open, but in many instances, a judge would need to issue a warrant before access could be granted to private investigators.
It’s legal for a private investigator to use IP trackers to identify individuals visiting a website. In some cases, PI’s may also place code on a suspect’s website to track the IP addresses of everyone who visits it.
What Private Investigators Can’t Legally Do
While the prospect of hiring a private investigator may appear to be an easy solution to uncovering the information you seek, it is important that you be aware of the restrictions and risks that the investigator is subject to under the law. The most common of these restrictions are: (1) wiretapping, (2) trespassing, and (3) obtaining information through a third party. The 1968 Federal Wiretap Act makes the interception of communications a crime. Communication is defined aggressively to include:
…the contents of any wire, electronic, or radio communication, transmitted in interstate or foreign commerce by radio, wire, or other like connection between the point of origin and the point of reception (emphasis added)…
18 U.S.C. § 2510(16). As you might suspect, the interception of the contents of a phone conversation (audio tape), a letter (paper), or an email (electronic) is prohibited. But voyeurism and physical surveillance of an individual, which is done without recording or document, is not a violation of the Act. The reason for this is that the meaning of the word "interception" is limited by its placement in the Act. The Act states that it applies to:
…aural transfer, by a person not a party to the communication, of the contents of any wire, electronic, or radio communication using an electronic, mechanical, or other device.
18 U.S.C. § 2510(5). The key phrase is "aural transfer…of the contents." The literal interpretation of the word "aural" is "of or relating to the ear." In other words, a person must listen to the content before it is intercepted in order for it to be illegal. Obviously, a person must listen to the contents of a wire conversation before he can parenthetically transfer them to someone else. However, courts have granted several exceptions to this rule . For our purposes, the salient exception is for police officers to use a listening device to record on-duty police communications by radio. Police officers may also monitor wire, electronic, or radio communications to determine whether the premises are licensed to operate such equipment. However, employees of a telephone company may use a listening device to conduct maintenance or test procedures that could result in the acquisition of the contents of a communication. The Federal Wiretap Act does not provide for a civil remedy. Therefore, violation of the Act is criminal offense punishable by fine or imprisonment (or both). 18 U.S.C. § 2511(4)(a). Since the Act does not grant a private right of action to sue, the injured party must rely upon a similar state statute. Most states have a wiretap statute that parallels the Federal Wiretap Act. Accordingly, they grant the injured party a private right of action for civil damages. Victims of wiretapping must show that the defendant "intentionally intercepted, endeavored to intercept or procured another person to intercept or endeavor to intercept" a wire, electronic, or radio communication. Private detectives commonly receive requests for criminal background checks from prospective employers. In conducting background checks, it is a useful and often important tool for a private detective to perform a "deep search" on the employee to determine if he or she has been sued, what the outcome of the suit was, and if a lien has been filed against them. But how is this accomplished? The answer is that the detective conducts an Internet search using an online data base. Online data bases are consumer reports and are therefore subject to the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1581-1693r. The FCRA prohibits reckless disregard of the FCRA and careful use of the FCRA is required in order to avoid liability.
Private Investigator Licensure and the Legal Implications
Private investigators must hold a specific license to operate legally, depending on the jurisdiction. That license is typically administered by a state or regional agency of law enforcement, allowing the investigative professional to perform the necessary legal functions to obtain legally admitted evidence. There are a number of other agencies that may confer licenses in the same way, such as the department of motor vehicles, department of insurance, department of business and professional regulation and the department of state.
Licensure is an important credential that a licensed investigator must renew, usually every two years. Licensure requires the completion of a lengthy application that verifies the applicant’s age, citizenship, moral character, social standing and fingerprinting.
Continuing legal education is another significant aspect of maintaining compliance with legal regulations, particularly for private investigation firms that specialize in civil litigation. Many investigators invest thousands of hours each year in continuing education, attending formal 40-hour seminars, workshops, or training courses provided by the FBI, the Secret Service, the United States Military and the Narcotics Field Force Units.
Merely being a licensed professional is not enough. Because laws and best practices can change frequently, a licensed investigator may need to monitor legal changes and adapt his or her services accordingly, receiving formal training to be able to do so. Such formal training provides a number of benefits, including the assurance of having all necessary skills to work with clients in compliance with legal regulations, and the reduction of liability and malpractice risk.
Working with Law Enforcement in a Legal Manner
Many private investigators work very closely with law enforcement agencies as they perform a large chunk of what law enforcement would otherwise do themselves if they had more time. Tasks such as background checks, surveillance and skip tracing are things that many law enforcement agencies need done but simply don’t have the manpower – or in some cases the ability – to do. What some people may not understand is that law enforcement agencies are ultimately accountable for everything that they do and that means the decisions made when they bring in private investigators are usually fully documented. They will always know who did what, why and when, so they require much more than you might think. For example, when I work for law enforcement agencies and perform surveillance , I will always inform them when I’ve made contact with the subject and sometimes record it. I’ll often get them to write an email confirming what I’ve done and they’ll usually review my video footage of the subject within a day or two. By the time I submit my report to them, they will already know the various aspects of the case I’ve worked on for them ‘from their side’ – and then I’m expected to provide my side of the story in the report that I submit to them. If this wasn’t done, it would make accountability virtually impossible – and that’s not going to happen. Law enforcement agencies use private investigators like myself to assist them with many civil and criminal matters, including background checks, accident scene investigations, skip tracing, asset searches, surveillance and interviews.
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