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Here is a list of some common things that private investigators are not allowed to get without signed authorization or other official court order:

Medical Records

HIPAA, which was enacted in 1996, protects your medical history and medical records from prying eyes. There are federal and state laws against obtaining medical records without authorization.

Credit Reports

Individual credit reports are protected by the Fair Credit Report Act (“FCRA”), Driver’s Privacy Protection Act (“DPPA”) and Gramm-Leach-Bliley Act (“GLBA”). Private investigators can obtain credit reports, but a signed authorization or waiver from the subject of the inquiry must be obtained to get a credit report.

Bank Records

The Right to Financial Privacy Act prohibits financial institutions from disclosing bank records or account information about individual customers to governmental agencies without 1) the customer’s consent, 2) a court order, 3) a subpoena, 4) a search warrant, or 5) other formal demand, with limited exceptions.

Telephone Records / Cell Phone Records

In January 2007, President Bush signed the Telephone Records and Privacy Protection Act of 2006, which makes it a felony to fraudulently acquire telephone records. If you are the owner of the phone, it’s a different story, but you cannot access someone else’s phone records without permission.

Travel Records

Obtaining travel records for someone other than yourself can be done through the U.S. Department of State, provided that you have a notarized consent, court order or other legitimate document, but there is no way to publicly or legally obtain these records without permission.

Birth Certificates

Each state government has its own set of rules about obtaining birth certificates, but in general, birth certificates can only be obtained by the person named on the certificate, immediate family members or next of kin. In many states, records more than 100 years old are part of the public domain.

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According to the Association of Certified Fraud Examiners manual, the Right to Financial Privacy Act prohibits financial institutions from disclosing bank records or account information about individual customers to governmental agencies without: 1) the customer’s consent, 2) a court order, 3) subpoena, 4) search warrant, or 5) other formal demand, with limited exceptions.

Even though the statute is limited in scope and only applies to demands specifically by government agencies, most financial institutions will not release information without one of the above listed authorizations.

Even with law enforcement agencies, the most effective way to get bank records or account information is with the customer’s consent.

There are many private investigators who claim that they have the ability to obtain bank records, account information, account details and other financial information.

While this may be true, the fact of the matter remains – obtaining banking or financial details without specific authority is against federal and state statutes.

How does a “rogue” investigator get bank records?

The two most common ways that investigators obtain bank records or account information is through a source in the banking industry or through pretexting. [To save you the Google search on pretexting, it’s loosely defined as the practice of getting your personal information under false pretenses.]

Although pretexting does have legitimate and legal uses [which is a story for another post], the use of pretexting to obtain financial information about another person is protected under the The Gramm-Leach Bliley Act, passed in 1999, which imposed strict penalties for individuals who obtain information about a third party account through pretext or deceit.

Word of Caution

After reading this, you may be thinking, “if I hire an investigator to get banking records, it’s the investigators problem, not mine.”  Consider this though – if you are ever asked to testify as to how the information was obtained, not only will the evidence be thrown out, but there may be legal implications against you and the investigator.

There are several instances investigators conducting a “banking sweep” only to later find that the information was fake.  For example, in 2009, a Toronto private investigator charged his client $60,000 for a “banking sweep.”  The investigator reportedly identified $2.6 million in the Cayman Islands and the Bahamas, but the information was later found to be bogus.

Are there legal ways to get bank information?

There are legal ways to identify bank accounts such as this case study where we identified bank accounts in a divorce filing.

But what you really need to figure out is what you are trying to do?  Are you really trying to conduct an asset investigationfind assets or locate hidden assets?

Final Thought

Information obtained from “inside” sources can be extremely valuable for any investigator, but when the information obtained is by unlawful means, there can be serious legal implications.

Guide to Hiring a Private Investigator

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A pre-litigation asset search can provide you or your client with valuable information to determine if a lawsuit is worth filing or to gain leverage in the course of negotiations prior to filing a lawsuit.

Going through litigation is expensive.  There is nothing worse than racking up tens of thousands of dollars in attorney’s fees only to find the person or company you are suing doesn’t have anything of value.  In other cases, you may be in the midst of negotiating a settlement prior to filing a lawsuit and want to see how far you can push the negotiations, or if you should cut your losses and settle.

In pre-litigation mode, attorneys don’t have the luxury of having the legal authority to access information about liquid assets such as bank accounts and investment accounts.  Attorneys need information quickly, discreetly and most importantly, legally.

What to consider?

Determining whether you should sue a person or a company has two parts – what they may own and what other potential liabilities they may have.  Of course there may be a whole host of hidden assets, but here are a few key assets and potential liabilities that can be identified quickly, discreetly and legally in a pre-litigation asset search:

Assets


Personal Assets

The most significant asset that people own is typically their home, but other assets that can be identified through open sources include motor vehicles, boats and airplanes.  Beyond the obvious assets held directly by a person, assets may also be held by a close associate, family trust, family member or shell company.  Real property assets may have also been recently transferred to other related parties or held overseas.

Business Assets

In addition to holding individual assets, assets may also be held in a corporate entity.   Identifying corporate affiliations through secretary of state filings and other research is an important step in identifying assets held by affiliated companies which may not be held by the subject directly.

Liabilities


Bankruptcy

Obviously, if the person or company has filed for bankruptcy protection, you will eventually be notified and you can file a claim in the bankruptcy proceeding.  What if you haven’t been notified yet?  If the person or company has a history of filing for bankruptcy protection, wouldn’t you want to know?

Civil Litigation

If other civil litigation has already been initiated against the person or company you are about to sue, you may be in a long line of creditors once your lawsuit has finally been settled.  It may also be a sign that you should settle fast.

Judgments/Liens

If the person or company has been subject to recent judgments and/or lien filings, this may be a sign that the company is already heading for trouble.

Final thought

Conducting a pre-litigation asset search can quickly identify assets and potential liabilities that can help you make a more informed decision about whether you should file a lawsuit or if you should cut your losses and settle prior to filing a lawsuit.

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There are a number of misconceptions about what a professional private investigator can legally obtain. These myths may begin with your matrimonial client’s insistence that her husband has secret bank account, or your colleague has boasted about how his investigators found the smoking gun in the opponent’s phone records, or it’s possible that you picked up some ideas from the latest corporate espionage page-turner…

No matter what the reason, you need the information and you need it now! So why can’t your private investigator get it for you?  Typically, there are two reasons for this:

  • First, the information may be private and protected by either state or federal statute. In this case, your investigator may be able to identify where the information is located. Location is extremely useful information for leverage in negotiations, future subpoena requests, or discovery motions. In some cases (e.g. employment or insurance fraud investigations), you may have a previously-signed release from the subject that will allow you to access this private information.
  • The second reason is that the information simply doesn’t exist. The information may not be compiled into a single database or a comprehensive format. An investigator may ultimately be able to obtain the information, but the process isn’t as simple as you might think.

The 5 biggest misconceptions by clients involve private investigators’ access to the following:

1Banking and Financial Records

There are two things to consider here – where are the accounts and can we gain access to account-specific information?

First, there is no comprehensive registry of bank accounts in the United States and identifying undisclosed or hidden accounts is no small feat.

A seasoned investigator may be able to identify accounts linked to an individual through interviews, public records searches, or other legitimate investigative techniques. Once accounts are identified, legally obtaining account-specific information is nearly impossible without a court order or the consent of the account holder.

The Gramm-Leach Bliley Act, passed in 1999, imposed strict penalties for individuals who obtain information about a third party account through pretext or deceit.  Check out Fred Abrams, Esq. post on Violating Federal Law In Asset Search for a great case study.

Dig Deeper: Can a Private Investigator Get Bank Records or Account Information?

2Telephone Records

Telephone records are private and third party access is restricted by a host of state and federal statutes, including the Telephone Records and Privacy Protection Act of 2006.

Similar to bank records, an investigator can use legitimate tools to try to identify the telephone carrier for a particular phone number or individual.

There are a number of online tools that allow you to input part of a phone number to determine the carrier (e.g. www.phonefinder.com). However, those cannot be completely relied upon for accurate information, particularly in today’s age of portable cell phone numbers, Skype, and Voice over Internet Protocols (VoIP).

Dig Deeper: Can a Private Investigator Get Phone Records? or Can a Private Investigator Get Cell Phone Records?

3Credit Information

In recent years, the federal government has placed a number of restrictions on the ability of third parties to access and use credit information.

Most important here is The Fair Credit Reporting Act (“FCRA”) and subsequent amendments.

FCRA not only restricts how a third party can obtain credit information about an individual, but it also places requirements on third parties to make certain notifications to individuals when certain actions (including employment decisions) are taken using that information.

Dig Deeper: Can a Private Investigator Get a Credit Report?

4Nationwide Criminal Records

The closest thing to a nationwide criminal records check in the United States today is the National Criminal Information Center (“NCIC”) database.

Access to this database is strictly limited to law enforcement agencies and authorized criminal justice organizations; private investigators and information brokers do not have access to its contents.

Dig Deeper: The Truth About Access to National Criminal Records

5Comprehensive Individual Profile

Type “background investigation” into Google and you’re sure to be bombarded with claims of “Only $19.99 for a complete background check!” or “$14.95 for instant background investigations!”

Such claims are dangerously overstated – it’s virtually impossible feat. Buyers beware…these bargain sites generally just pull together information from various online sources.

They are not comprehensive and miss many online public records (not to mention those records that haven’t yet made it out of the courthouses and onto the web!).

Whatever information is provided in the “investigation” is frequently filled with inaccuracies and extraneous details.

Dig Deeper: Professional Background Check v. Free Background Check

Guide to Hiring a Private Investigator

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