There are very few topics that get me as agitated as do discussions regarding ethics and private investigators. My enthusiasm for this topic falls somewhere between my obsession with food and making the perfect paella (sorry, but no Spaniard would ever put chorizo in a paella) and drinking good beer (sorry, but Coors Light does not qualify as “good beer”).
Since I spend the vast majority of my time on my work (and unfortunately not cooking paella and drinking beer) and much of my day on social media with news alerts set left and right, I get reminded of ethical issues with private investigators all the time.
A few months ago, I stumbled across a message board where a licensed private investigator asked about how to get an “unauthorized credit report” (Hint: the word “unauthorized” should be a clue).
I joked that it was kind of like asking where to buy an 8-ball of cocaine on Twitter. OK, I guess it’s not the same. Cocaine is probably easier to get than a credit report.
But I digress.
A private investigator asks on a public message board “Does anyone know where I can get an unauthorized credit report from?” Isn’t that kind of like asking where to buy an 8-ball of cocaine on Twitter?— Brian Willingham (@b_willingham) May 7, 2020
That same week I got a message from another private investigator asking how he could get a credit report without a signed release. (Hint: a Google search can quickly confirm you MUST HAVE a signed authorized release).
There have been a number of infamous private investigator ethical lapses splattered across the news over the years, some of which have led to changes in laws and access to information.
In the 1980s, the actress Rebecca Shaeffer was murdered after a 19-year-old “obsessed fan” hired a private investigator to track down where the actress lived. California changed the law so that DMV information no longer included address details.
Anthony Pellicano, known as a “fixer” and “Private Eye to the Stars,” spent 10 years in prison for, among other things, threatening witnesses, wiretapping phones (including the phones of Sylvester Stallone), and unlawfully accessing confidential records from members of the Los Angeles and Beverly Hills police departments.
Then there was Chris Butler, who set up “Dirty DUIs” for his clients, where he would hire female decoys to get a male drunk, get the males to drink a sufficient amount of alcohol, and then follow them in their vehicle as they headed home, all in order to call the police in order to get them pulled over.
In 2006, Hewlett–Packard hired private investigators to access the private phone records of board members and nine journalists. One private investigator was later convicted and sentenced to prison. Because of the national outcry, in 2007, President Bush signed the Telephone Records and Privacy Protection Act of 2006, which made it a federal felony to fraudulently acquire telephone records.
More recently, there was the story of Black Cube, who used ruses, fake websites, false identities and cellphone tracking to obtain information for its client, Harvey Weinstein. As you may have noticed from the news, that didn’t end well.
In addition to these front-page news items, there have been dozens of other stories in the media every day of private investigators who hacked email passwords and credentials, posed as an airline worker to get copies of a passport; committed sex acts with a prisoner (and client) in jail; bribed and tampered with witnesses; intimidated a witness; impersonated a law enforcement officer; attempted to get the president’s tax returns; flashed their old badges to give people the impression that they are law enforcement officers; illegally installed a GPS tracker; hired a shady subcontractor with spotty criminal records to get phone records; illegally obtained bank records through a pretext; or represented themselves as an “investigative firm” in order to dig up dirt on the opposing counsel by pretending to be a reporter.
Those are just the ones that crossed my radar over the past few years.
And I have had a bunch of my own personal experiences with other ethical breaches, including dealing with investigators who wanted to charge another investigator a handsome sum for public records and another investigator who told me he would put a GPS device on anyone’s car, anytime, anywhere, despite the fact that laws suggest otherwise.
The argument I get all the time is that these are just rogue investigators; but personally, I think it’s more of a pattern of behavior. We may not be to blame for these rogue investigators, but we can all do something about it.
There are a few things that I think could dramatically decrease these ethical lapses. First, most states do not require private investigators to get continuing education. So once you have received a license, you can maintain that license for eternity without a single iota of learning anything new, like pesky little things such as laws, privacy restrictions or even investigative techniques.
Imagine going to a doctor who learned how to practice medicine 30 years ago and was never required to learn anything new ever again. I don’t know about you, but that’s not the doctor I would want to be seeing.
The other thing that could dramatically decrease ethical lapses is a code of ethics. Nearly every single professional service has them; why don’t private investigators? While many investigators belong to various associations that have their own code of ethics (e.g., National Association of Legal Investigators; The New Jersey Licensed Private Investigators Association; World Association of Detectives; Association of Certified Fraud Examiners; Council of International Investigators; Associated Licensed Detectives of New York State), there is no universal code of ethics. And as far as I know, very few (if any) states have a real code of ethics for investigators to abide by.
So where do we start to try to fix this?
Well, having a standardized code of ethics would probably be a good starting point.
There were a few specific criteria for this private investigator code of ethics.
First and foremost, it needed to be in plain language; no legal jargon would be allowed. I know that it’s an attorney’s job to add disclaimers, provisions, clauses, rights, duties, etceteras, notwithstandings, heretofores, definitions and “including but not limited tos,” but it’s time we took a stand for plain language.
Secondly, we wanted this to be shared with the investigative community, so while we tried to hit every point, we tried to keep it as broad as possible while being concise and fitting on one page. We thought of this not as a set of exact rules, but as general guidelines that we must follow. Trying to cram every ethical scenario in a concise set of rules was not very practical.
Lastly, both Molly and I wanted to share this code of ethics with the investigative community— so please steal it, post it, edit it, sign it, blog about it, tear it apart or do whatever you want with it.
Maybe, just maybe, this might create some dialog about standardizing a code of ethics for all of us.
Or we can all decide to just completely ignore it, which is pretty much what the industry has been doing for quite some time.