Is a Regulated Private Investigation Industry a Political Right?

Anyone familiar with the private investigation industry knows the story of Eugène François Vidocq, a former criminal who founded the first known private detective agency in 1833 in France and who would later found La Sûreté Nationale, a precursor to all police detective agencies throughout the world. Most of us are less familiar with the story of how private investigators came to be regulated by the governments where we work. Nobody, to my knowledge, has yet to tell the story of what this hidden history says about how the regulation of private information gathering has been motivated in part by the perceived threat private investigators pose to repressive governments.

Last December I traveled through Western Europe to interview private investigators about the laws in their countries, and during these interviews there were three facts that jumped out to me as potentially meaningful, although I didn’t know what to make of them at the time. What I learned was that the first private investigation licensing laws in Italy, France, and Spain were passed, respectively, during the regimes of Benito Mussolini (1931), Nazi-occupied Vichy France (1942), and Francisco Franco (1951).

While the laws in these countries have been amended since they were passed—and I haven’t yet delved into the laws’ specific historical contexts—the pattern is undeniably striking. As I flew back to the United States on Christmas Eve, I wondered, “Why would fascist governments, assuming they believed private investigators were a threat, attempt to regulate the industry, as opposed to just banning it outright?”

To help answer this question, I decided to focus on a different region of the world, Eastern Europe, where the history of private investigation licensing is actually unfolding in real time in countries like Ukraine. You see, private investigations were explicitly banned by the Union of Soviet Socialist Republics (USSR), and it’s only been since the late 1980s that we are beginning to see a burgeoning industry emerge from the ashes of the collapse of the Soviet empire.

To shed some light on how this is playing out, I interviewed Igor Tymofeyev, a lawyer and practicing private investigator in Ukraine whom I met a couple weeks ago at the regional meeting of the Council of International Investigators (CII) in Slovakia. The interview was supplemented by a document Igor sent prior to the CII meeting in which he explained the history of private investigations in Russia and Ukraine in some detail. He was kind enough to allow me to quote from his document and also to provide more information to me via e-mail.

“Imperial Russia had no official private investigators or detective agencies,” Igor wrote in his introductory document. “Any attempts to introduce private investigation in practice [were] stamped out by the government as soon as petitions to that effect were submitted, at the insistence of the Russian state police institutions and political investigation functionaries.”

“After the October revolution [when the Czar was overthrown and the communist period began],” Igor continued, “several attempts were made to create and legalize private detective and security activity in Russia.” In 1922, the Central Directorate of Criminal Investigation, abbreviated as “Centrrosysk,” drafted decrees on private investigation companies, which were sent to the Council of People’s Commissars. Interestingly, the Centrrosysk then withdrew its own decrees, leaving the USSR without any private investigators for the next 70 years. Why the Centrrosysk withdrew its efforts to regulate the industry in 1922 may be lost to history, but it’s worth noting that this was the year Vladimir Lenin stepped down, following efforts to somewhat loosen constraints on private enterprise through what he termed “state capitalism.”

Igor wrote of the years that followed, “Investigation was left to state structures alone, and later, state criminal and political investigations were often used in the USSR for the purposes of total control over the society and political repressions. Naturally, the state did not want to hand over this means of control to ordinary citizens.”

It wasn’t until many years later, during the start of the so-called “perestroika” (a series of political and economic reforms enacted by Mikhail Gorbachev) in 1987, that some private security and investigative companies began to emerge. These firms conducted private investigations, although the activity wasn’t yet regulated by the government. The USSR then collapsed in 1991, and in 1992 the new Russian government passed a law entitled, “On Private Detective and Security Activity in the Russian Federation.”

Notably, however, while the Russian licensing law technically allows private investigators to “collect information in criminal cases on a contractual basis with stakeholders,” the reality of the law’s implementation, according to Igor, is that private investigators are generally not permitted to do criminal investigations or to testify in criminal trials, except under very exceptional circumstances. These practices appear aimed at preventing private investigators from gathering information that might challenge the state in criminal proceedings. In implementing its licensing regulations, Russia—hardly a bastion of political freedom, but otherwise relatively open economically—apparently followed a pattern seen in the history of other repressive governments, including in Western Europe. The hidden intent of these regulations is in the details of the laws, the remnants of which exist even now in several otherwise democratic countries.

For example, under Italy’s original 1931 law, the police, judges, and prosecutors can mandate the assistance of private investigators whenever they choose. This I learned from Paolo Sfriso, the director of Gruppo S.I.T. in Venice. Such a law obviously made the prospect of doing investigations on behalf of counsel for criminal defendants nearly out of the question. Paolo explained how this part of Italy’s licensing law was modified only recently, after “the Italian Criminal Proceedings Code was reformed in 1997 and mentioned private investigators for the first time.” In 2010 the licensing law was changed to create a provision for private investigators to work for the defense, specifically enabling investigators who have an endorsement to work on criminal defense cases to invoke privilege and refuse assistance to the police if asked. “The endorsement, however, is only issued to ‘senior’ investigators,” Paolo added, a status that is still not very well defined.

Other countries have yet to abandon their near-blanket bans on criminal investigations, according to other European investigators I interviewed last December. An investigator I interviewed in Paris, for example, told me that nobody in France—including private detectives—is permitted to act as a “counter investigator” to the prosecution. While defense attorneys are appointed, these attorneys must solicit information from the Judge d’Instruction, who investigates cases supposedly as a neutral arbitrator prior to police involvement.

Similarly, David Sanmartin, an attorney and investigator with Grupo HAS in Barcelona, explained how criminal investigations are generally prohibited in Spain, except to the extent that an investigation might relate to peripheral issues important to the parities. Under the 1951 law and continuing to this day, “The same regulation says that, in the case that a private detective discovers a criminal offence, he must inform the court or police and provide them with all information and evidence obtained.”

“Regarding investigation for the criminal defense,” David said, “private detectives cannot investigate to find the actual criminal. But they can provide information and evidence on ‘private facts’ that provide information that evidence that a suspect is not guilty.”

While the criminal justice systems are obviously very different in Europe and in the United States, it is clear that these licensing laws were intended to delineate private investigations from police and to give governments a monopoly on investigating criminal facts. By requiring licensing—as opposed to banning private investigations outright (as in the USSR)—governments could effectively have their cake and eat it too, keeping tabs on private investigators and collecting licensing fees, but restricting private information gathering to areas of civil law and private matters.

This brings us back to Ukraine. There, as Igor explained it, although “conducting investigations” is recognized in the “State Classification of Economic Activities,” there is not yet any formal licensing requirement for private investigators, who are (as in Russia) effectively forbidden to conduct criminal investigations or testify in criminal court.

There have been numerous attempts since 1992 to pass the “Law on Private Detective Activity,” which is modeled after the Russian law, but the votes in the Verkhovna Rada (Ukrainian parliament) have as yet been insufficient to pass these bills into law.

One outcome of Ukraine’s stalemate on creating private investigation regulation is a virtual online army of “pseudo-investigators” whose aim is to rip off consumers in various countries seeking investigative services in Ukraine. Igor cautioned, “Some private investigators/consulting agencies often breach the client’s secrecy by contacting the object of investigation or surveillance to get paid for the notification of such investigation or surveillance. In the end, such unscrupulous detectives collect their fees both from the client and the object of investigation.” And worse, Igor added, “another risk lies in the potential conflict of interests, as many unscrupulous private investigators also happen to be the employees or heads of security services of companies or banks, or have friends/relatives who work for such security services.”

In summary, one historical—and perhaps not-so-historical—purpose of private investigation regulation in Europe seems intent on keeping public citizens from being able to hire private investigators to gather information that might embarrass state authorities or to gather evidence in defense of criminal charges filed by the state. This is not to claim that licensing is a bad a thing—in fact, as the present state of the Ukrainian private investigations industry shows—regulation is altogether important to keep the industry above board. This is also not to claim that criminal defendants in the democratic countries I’ve mentioned don’t have some other means of challenging their charges in court, as in the case of the Judge d’Instruction in France and a similar system in Spain.

But it is to write that, as Ukraine and other countries consider their own licensing regulations, they should avoid following in the footsteps of fascist and autocratic regimes that have historically used such laws to suppress information that might protect their citizens from corruption and prosecutorial overreach.

In fact, history suggests that perhaps a regulated private investigations industry that is permitted to conduct criminal investigations counter to the state’s interests should be considered a political right.

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