What you will find below:
- Legal Boundaries
- Wiretapping and Social Media
DIY Claims Investigation
Investigations are debatably the most important time to work within legal and ethical boundaries as these cases go through litigation and can even end up in front of a jury. High stakes mean high risk. Be positive any information you are collecting isn’t on the grey side of the law or it could be dismissed. Private Investigators are seasoned professionals with knowledge of what is allowed and what isn’t. They are required to have a 4-year bachelor’s degree in criminal justice or 4,000 hours working under someone who is already licensed. They must also pass an extensive background check and state exam.
Keep reading to learn about the most common mistakes in do-it-yourself claims investigation.
Lack of Legal Boundaries
Because of these legal implications, many lawyers opt to not have their investigators use pretexting as it may invalidate their information. Ultimately, what is the point of having “dirt” on someone if you can’t use it.
Pretexting is the act of getting personal information about someone under false pretenses. Essentially, if a private investigator makes up a lie in order to get their claimant to release information.
It can be as calculated as calling a doctor’s office and falsely pretending to be the patient to obtain medical records or as innocent as making a phone call (while pretending to be a friend or colleague) to the persons residence to see if they are home.
Framing someone else’s identity is obviously illegal and in our example about the doctor’s office would not uphold in court as health records are protected by HIPAA. However, pretending you’re a pizza delivery person to confirm someone’s home address is a gray area – but technically not illegal.
The Gramm-Leach-Bliley Act (GLBA) is comprised of three sections:
- The Privacy Rule: the organization must outline what data is being collected from the consumer, how it will be used and to whom it will be shared.
- Safeguard Rule: requires these organizations to safeguard against cyber attacks, email phishing and other cybersecurity attacks.
- Pretexting Rule: this section aims at training employees to avoid exposing sensitive information under false pretenses AKA pretexting techniques.
- This rule also protects “nonpublic personal information” which is any information that wouldn’t be available to the general public through government records, media such as a telephone book or public document such as a mortgage or security interest filing.
Trespassing and Reasonable Expectations of Privacy (REP)
Private Investigators hold licenses and undergo hours of training but that doesn’t put them above the law. They are still bound to trespassing laws like you and me.
However, a PI isn’t breaking any laws if they are videotaping you from across the street while you’re gardening. Yes, you are in the ‘privacy’ of your home but still in the public view.
This becomes a problem when the persons reasonable expectation of privacy (REP) is violated. This applies to the privacy you are entitled to in a changing room, locker room at the gym or a bathroom even if it is at a ‘public’ park.
Here’s an example:
Let’s say a PI peeks over the backyard fence of your claimant to take images of them mowing the lawn. Your claimant should be in bed rest recovering from their alleged slip and fall at work. This picture could catch them red handed and win you the case!
Don’t get too excited just yet. If this evidence is used in court the prosecution could argue that their REP was higher in their backyard, considering they are fenced in. Even if a PI wasn’t technically on their property these images would still be in a gray zone and likely invalidated.
Wiretapping and Social Media Don’ts
Bound to U.S. law, PI’s are not allowed to record or listen into a private phone conversation between two individuals without at least one of them giving consent. Many states, like California, according to penal code 631 PC “makes it illegal to use recording devices to intercept or eavesdrop on confidential communications without the consent of all parties involved.”
This does not apply to eavesdropping on conversations happening in public. If your claimant is having dinner at a restaurant a PI can sit in the table next to them hoping to gain some insight.
If someone’s account is set to ‘public’ on Instagram they are voluntarily sharing their information with the world.
Under the Stored Communications Act internet service providers are not allowed to disclose of information or emails. This law also applies to social media platforms like Instagram and Facebook.
A good example of this is WhatsApp – which uses end t o end encryption. This means that the messages sent on the app are only visible to the recipient. Not to WhatsApp or to any government entity.
In Facebooks (WhatsApp’s parent company) words: “This means that nobody else can see or listen to what’s sent or said – not even Meta. We couldn’t even if we wanted to.”
The specific mistakes made in a DIY claims investigation can vary widely, depending on the context and complexity of the case. To avoid these common mistakes and conduct a successful investigation, individuals may benefit from consulting with professionals, such as attorneys, private investigators, and experts in relevant fields.