Interrogating the Regulation of Private Investigators

If private investigators collect information from your Facebook account, can they share it with their client seeking legal action against you?

In the United States, the answer to this question depends on the constitutional limitations of the Fourth Amendment.

What if investigators obtained information illegally and fail to tell the law firm that hired them how they got the information?

This activity would likely breach the lawyer’s professional responsibility obligations because the Model Rules of Professional Conduct hold lawyers liable for the conduct of the third parties they supervise.

Many lawyers and large law firms hire private investigators to gather information related to litigation. These private investigators may use social media sleuthing, GPS tracking, or sometimes other covert strategies such as pretexting—the practice of using disguise to gain information from a target—to gather intel for their client. The legality of lawyers’ use of private investigators who engage in some of these more deceptive behaviors is widely debated across U.S. jurisdictions.

Despite the high stakes and complicated legal rules, some private investigators legitimately operate without licenses or formal training. As of 2019, just over 96,000 private investigators were employed in the United States. The federal government does not regulate the private surveillance industry, and state-level regulation of these investigators varies widely. Most states such as New York require private investigators to apply for and maintain licenses, but other states, such as Idaho, do not regulate private investigators at the state level.

Lawmakers outside of the United States also inconsistently regulate private investigators. Experts in other countries have expressed concerns about the lack of regulation of the private surveillance industry.

In this week’s Saturday Seminar, we survey recent scholarship by experts examining the regulation of the private surveillance industry across the world.

• Fewer regulations exist for privatized surveillance than public surveillance practices, Kevin Macnish of the University of Leeds, explains in a chapter of his book entitled The Ethics of Surveillance: An Introduction. Accordingly, Macnish argues that defining the ethical limitations of private surveillance is difficult. For ethics in private investigation, Macnish points to questions of honesty that can arise when an investigator uses feigning tactics to elicit information. In assessing the ethical nature of privatized surveillance, Macnish notes the importance of considering the proportionality of the extent of the surveillance to the harm done.
• The lack of regulation of private investigations in Australia has historically caused unease within the industry, Michael King of Australia’s Charles Sturt University, explains in a paper. King highlights an Australian Law Reform Commission report that found that private investigators’ work often leads to infringements on privacy and breaches in confidentiality. King underscores the dearth of current private investigatory work by Australian experts and emphasizes the need for more regulatory attention on the private investigator licensing processes to combat privacy concerns.
• International Criminal Tribunals must exclude evidence that private investigators obtain illegally, urges Alexander Heinze of Germany’s University of Gottingen in an article in the New Criminal Law Review. These illegal methods include bribery, preparation of false evidence, and inappropriate use of evidence. Heinze argues that procedural laws do not apply only to state actors, but to the entire criminal justice system. Heinze explains that due process should require that rules excluding illegally obtained evidence apply to private investigators.
• Because Sweden’s regulations fail to establish legitimacy and accountability for the private security industry, Peter Stiernstedt of the University of West London recommends the revision of Swedish private security regulations in a forthcoming article in Policing: A Journal of Policy and Practice. Through interviews with key stakeholders and experts, Stiernstedt finds that regulators lack the authority to hold private security companies accountable to existing regulations. Stiernstedt also warns that a rise in private criminal investigations could lead to police complacency, which could, in turn, reduce public trust in the criminal justice system.
• In a forthcoming article in Boston University Law Review, Danielle Keats Citron of the University of Virginia School of Law and Daniel J. Solove of George Washington University Law School delineate the link between private investigators and the physical harms that can arise from privacy violations. Citron and Solove say that the dissemination of personal data to entities like private investigators can lead to opportunities for bodily violence. This physical harm usually occurs when those in possession of sensitive personal information “negligently, knowingly, or purposefully” allow a third party to harm another person, according to Citron and Solove. The authors attribute the perpetuation of physical harms from privacy violations in large part to courts’ reluctance to recognize the disclosure of data as a source of physical injury and call for a legal recognition of these harmful outcomes.
• Ukraine currently has no laws on private detective work, explains Veronica Horielova, of Ukraine’s University of Economics and Law KROK. Horielova notes that privacy, private property, accuracy, and accessibility are universal components of ethical codes for private detectives in other countries. Horielova argues that research on the ethics of private detective work should serve as the foundation for any new laws regulating private detectives’ use of emerging surveillance technologies.