Private Investigators Converge on Washington

Meeting with legislators about issues that might impact me can be dicey, since I reside in Washington, D.C., and therefore have no national legislators. You may have read our license plates, which read, “No Taxation without Representation.”

Luckily for me, I also happen to own a business which is in part located across the Potomac River, in Virginia, where they have legislators in spades. This article is not so much about those legislators as it’s about my interactions with some of their staffers, and about how I leveraged my limited political influence to get a little representation.

Regardless of the degree or quality of one’s legislative representation, everyone knows that if you want to be heard it’s helpful to join an advocacy group. One of the groups I belong to is the National Council of Investigative and Security Services (NCISS), which held its annual “Hit the Hill” event last week. Hit the Hill brings scores of private investigators from throughout the United States to converge on the halls of Congress, where they meet with their individual legislators about issues relevant to our profession. There is strength in numbers, and with 1,000 members representing around 19,000 employees (many of them admittedly of the security services variety), NCISS carries some clout.

Weeks ago I started sending emails to the two Virginia senators and to the office of Jim Moran, who is the representative of the congressional district where my Arlington office is located. With a lot of persistence, I was able to set meetings with a legislative assistant for the Representative and with a legislative correspondent for Senator Tim Kaine.

My principle aim whenever I’m meeting with a legislator or a staffer is to simply convey what it is that private investigators do and why what we do is valuable to society. It’s no secret that we’re sometimes portrayed in the media as unsavory, as people who will break laws in order to gather information, and dispelling this unfortunate stereotype is perhaps our most important goal as an industry. The work we do has value for the attorneys who hire us, and for the clients of those attorneys who are embroiled in the myriad legal issues that make up the collage of different investigative specialties, from criminal defense to divorce cases.

Regardless of the underlying legal matter, in order to do just about any type of investigation you need a legal means of access to information. One source of information comes from commercial databases that collect general biographical data, such as addresses and phone numbers, from U.S. consumers. Some cases also require investigators to have the ability to use specialized tools and techniques which make gathering evidence easier.

One such specialized tool is a GPS tracking device, which makes conducting surveillance easier and safer. It is illegal in most states to place a GPS tracker on a vehicle without the consent of the vehicle’s owner, so use of these devices is practically limited to investigations by employers when the devices are placed on company vehicles, and in domestic cases where one spouse is tracking the movements of the other spouse in a jointly owned car. An example of a specialized investigative technique is the practice of using a ruse during an undercover investigation to gather evidence that might not be otherwise obtainable. Undercover cases are common during intellectual property policing and in defamation cases, among other types of investigations.

The reason legislative representation is so vital—and why events like Hit the Hill are so important—is that sometimes well-intentioned bills can have far-reaching consequences, not only for private investigators, but also for the attorneys we work for, and for those attorneys’ clients.

I met Barry Londeree, a legislative assistant for Representative Jim Moran, at the Rayburn Building in part to talk about the Geolocational Privacy Act (HR 1312), a bill that would essentially require the consent of individuals before they can be tracked with GPS technology (irrespective of whose vehicle they are driving). This is a good example of a bill that sounds like a reasonable idea in theory, but one that would have serious ramifications for private investigators who use GPS trackers in their investigations.

I found Barry to be very smart and receptive, as I explained to him how trackers do not tell an investigator anything more than he or she could learn by following a subject around on public streets. The advantage, however, is that, unlike with traditional surveillance, there is little risk of running over a kid at an intersection during the adrenaline-fueled rush of following a fast-moving subject. Barry asked a lot of questions about our industry, and about my views on HR 1312, as well as about other relevant privacy issues.

I then trudged over to the Russell Building to meet with a legislative correspondent for Tim Kaine. The reception I received on the Senate side was cooler than I received on the House side (although this admittedly might have been because I was 30 minutes late for my meeting at Kaine’s office). My main reason for this meeting—beyond my life’s mission of dispelling some of the negative stereotypes associated with private investigators—was to discuss another well-intentioned, but flawed bill called the Data Broker Accountability and Transparency Act (S 2025). Among other things, this bill states the following:

• In General. It shall be unlawful for a data broker to obtain or attempt to obtain, or cause to be disclosed or attempt to cause to be disclosed to any person, personal information or any other information relating to any person by making a false, fictitious, or fraudulent statement or representation to any person, including by providing any document to any person, that the data broker knows or should know to be forged, counterfeit, lost, stolen, or fraudulently obtained, or contains a false, fictitious, or fraudulent statement or representation.

This is again an example of a seemingly reasonable idea, until you realize that a “data broker” is defined as follows:

• The term ‘data broker’ means a commercial entity that collects, assembles, or maintains personal information concerning an individual who is not a customer or an employee of that entity in order to sell the information or provide third party access to the information.

I explained to Kaine’s legislative correspondent that under such a broad definition a private investigator could be construed to be a data broker. If we can’t use false pretenses to collect any information about someone, then how can we do an undercover investigation? I gave an example of calling someone’s former employer under the pretext of doing a reference check in a defamation case. Erroneous references from vindictive employers can keep someone out of work. In these cases we often call the former employer under the guise of someone thinking of hiring their former employee. If S 2025 becomes law then these types of investigations would arguably become illegal. The staffer listened, but unlike Barry, asked me no questions and was very noncommittal concerning the Senator’s position on this bill. At the end of our talk, she commented politely that I had offered an “interesting” perspective which they would take into consideration as the bill moved forward.

After I left Kaine’s office feeling somewhat dejected, I stopped by Senator Mark Warner’s office. Warner’s office hadn’t responded to my repeated emails to schedule an appointment with them, but I’m not one to be dissuaded when I’m on a mission. At Warner’s office I was able to talk to a legislative aide for a few minutes in the hallway, despite not having an appointment. The reception there was slightly warmer than at Kaine’s office. It’s always difficult to know, however, whether people really care about your issues, or whether you are being placated.

I then trekked back over to the Rayburn Building to attend a luncheon which featured a speech by Representative Lloyd “Ted” Poe, who represents a congressional district in or near Houston. He talked about a bill that he is sponsoring which would increase fines and penalties for human trafficking. Poe clearly wasn’t of my political persuasion, and I’ve never been to Houston, but I thought it was great of him to come talk to our group.

Sometimes it’s enough just to have a dialogue with a legislator or a staffer, to get the feeling that someone is listening and willing to consider your point of view. Without that connection I get the sense that the legislative fallout from bills like HR 1312 and S 2025 would be quite dire for private investigators, particularly for ones who live in D.C. and therefore have no national representatives to vote out of office.

If you’re a lawyer who uses a private investigators to gather evidence in your cases, such bills might have negative consequences for your clients too.

More by | Philip Becnel Philip Becnel , Law.com Contributor
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