The Boundaries of Electronic Surveillance

 

The knowledge and tools of the public investigator’s trade give us capabilities that aren’t readily available — or, in some cases, legal — for a layperson. But where an outsider may well ask, “Well, why don’t you…?” when it comes to cracking a case, Barefoot Professional Investigations knows that it’s not quite as simple as pop culture makes it look. And, believe it or not, we prefer it that way. Having a strong code of professional conduct and ethics may mean that it takes longer to uncover what we’re looking for, but it also means that everyone involved, from your professional investigator, to you, and even the subject of your investigation is protected and treated fairly.

Electronic Surveillance and the Law
Understanding what we can’t do begins with an understanding of why we can’t do it. Surveillance is tightly governed by state and federal laws. For the most part, electronic surveillance is covered under wiretap laws, and North Carolina is a one-party consent state. That means that at least one party who is directly involved in a conversation or activity must be aware that they’re being monitored. That’s straightforward for a phone conversation — you’re either on the call or you’re not — but gets much more complex with, say, a conversation over email.

 

 

 

 

It’s further complicated by federal law, since the professional investigator’s work is governed by a veritable pile of legislation. We’re bound by the same legal and constitutional constraints as any law enforcement officer, but our work also falls under the Fair Credit Reporting Act (which covers individuals’ right to privacy with regard to everything from their bank records to employee background checks) and Title VII of the Civil Rights Act. So how does this apply to our day-to-day work?

The Tools of the PI’s Trade, and Their Limits

Audio and Video Surveillance
As we’ve mentioned above, NC is a one-party consent state. There’s another phrase that’s worth bearing in mind when we consider audiovisual surveillance and other forms of electronic surveillance: the reasonable expectation of privacy. Nobody would think twice about a video camera in the employee break room; a video camera in the restroom, on the other hand, is cause for alarm. When it comes to video surveillance, that means we can conduct surveillance in areas visible to the general public, but not elsewhere. If you suspect a fraudulent workman’s comp claim, for instance, we can certainly capture video from the road, sidewalk, or other public property of your employee on their roof, cleaning out the gutters; we cannot sneak into their home and plant a camera there to capture them lifting weights or remodeling their kitchen.

 

GPS Tracking

 

GPS tracking is, for now, a constitutional gray area. Two cases (United States v. Jones, Grady v. North Carolina) present conflicting opinions on whether GPS constitutes a search. We can’t just place a GPS device on an unwitting owner’s vehicle. That isn’t to say that GPS doesn’t have its uses; you can, of course, put GPS tracking devices in a vehicle you own — and many individuals and businesses do, and this sometimes has its place in our investigations. We evaluate the use of GPS on a case-by-case basis, and will discuss this in more depth with you during your consultation.

Computer Forensics

The ownership question, and the reasonable expectation of privacy, both come into play with computer forensics as well. If you suspect an employee is embezzling money or sending trade secrets to a competitor, we could not put a key tracker on their personal laptop or simply snoop through their personal mobile device. If, on the other hand, those devices are owned by the employer? Well, that’s fair game, since what’s generated on those devices — like the devices themselves — is governed by a different set of laws and expectations.

Electronic Records Searches

Here, we’re using “electronic records” in a broader sense. It can encompass financial records, social media accounts, and the many other digital fingerprints we all leave behind. We’ve already seen how a reasonable expectation of privacy is the standard for the legality of searches, so options here may be limited. Financials, criminal records, and other traces can be gotten as part of a background investigation, but it’s important to remember that a background check must take place with the subject’s express written consent.

 

Social Media

Like the videotaping example above, social media is an interesting mix of the public and private. Anyone can look for accounts on Twitter, Facebook, LinkedIn and elsewhere, and anything that’s publicly visible would be considered fair game under most circumstances. What we cannot do, however, is hack an account, or engage in social hacking (pretending to be something or someone we’re not in order to gain access), since this may fall afoul of evidentiary standards.

 

We understand the frustrations that can attend hiring a private investigator. Often as not, clients come to us because they feel their space, their trust, or their life has been violated, or they’re trying to prevent that from happening. Trying to understand what happened so you can return to a sense of normalcy, or attempting to understand an individual’s background so you know if they’re safe, takes on a unique urgency at times like these. But with so much at stake, that simply underscores the importance of doing everything correctly — well within the letter and spirit of the law. When that kind of care and discretion matter, you need the high standards and professionalism of Barefoot Professional Investigations.