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Michigan Lawyers Weekly (2006)
Missouri Lawyers Weekly Article
Security Management Article
Michigan Lawyers Weekly Article
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by: Roger H. Schmedlen, CPP, CFE, CII, MIPI (byline removed)
Published by: Michigan Lawyers Weekly (Reprinted elsewhere)
Many attorneys regularly rely on private investigators to conduct surveillances on matters ranging from suspected insurance fraud and domestic matters to cases involving theft and counter-industrial espionage
operations.
Since many attorneys do not specialize in privacy or criminal law; they may feel they do not have the responsibility or expertise to direct such surveillances or specify the methods used on these operations. Oftentimes attorneys expect the private
investigators to be reasonably knowledgeable concerning the legal liability that can arise from such operations. They count on their investigators to be competent and professional enough to avoid conducting surveillance activity in a manner which
could result in unnecessary exposure.
Regrettably, this confidence is sometimes misplaced and, today, a relatively new hazard exists in the form of electronic surveillance.
Clandestine Devices
Clandestine electronic tracking devices have been around for many years, first appearing publicly in the James Bond film "Goldfinger." In the past couple of years, manufacturers of these devices have touted
their wares in the Michigan private investigator market with some measure of success. Some private investigators invested in these devices and now routinely use them on surveillances of all types.
In the early 1960s, the legal section of the investigation firm where I was employed took a comprehensive look at the exposure involved with clandestine electronic tracking devices and similar contrivances used for surveillance purposes.
Even 30 years ago, it was readily apparent that, at the least, the use of such devices on vehicles not owned by clients would provide clear causes for successful lawsuits, and, in all probability, criminal actions could arise depending on
circumstances.
That same era brought what was later dubbed "The Nader Ruling," which found that, although General Motors Corporation and its agents did absolutely nothing illegal during their investigation of consumer advocate, Ralph Nader, they went so
far beyond the scope of normal and reasonable investigation that damages should apply. The investigation, in other words, was excessively intrusive.
In the private sector today, electronic tracking devices play a legitimate role on extended over-the-road truck surveillances, high risk cargo tracking, and as components of executive protection programs. In all of these cases, the transmitter is
installed on a vehicle with the authorization and approval of the owner. However, serious problems arise when private investigators install such devices on vehicles of persons without their knowledge or consent.
Proposed Legislation
Michigan Sen. Christopher Dingell has introduced Senate Bill 1217 which will make the use of electronic tracking clearly and specifically illegal, except for public sector law enforcement. While the
proliferation and misuse of electronic tracking devices may be more prevalent with unlicensed amateurs and "wannabe" sleuths who patronize so-called spy shops, it is clear that some licensed private investigators do use, and misuse, these
devices.
Regardless of the status of the bill, this author agrees with Senator Dingell's stated assumption that even without this bill, at present, the surreptitious use of electronic tracking devices on vehicles not owned by the client is an illegal act,
which additionally provides a solid basis for civil exposure to the both investigator and the investigator's client.
While the misuse of such devices for privacy invasion is not clearly specified as a crime at this time, other criminal statutes can apply. This is similar to, for instance, warranty fraud, where warranty fraud per se is not a crime, but general fraud
statutes and the mail fraud statute apply. Additionally, the use of clandestine tracking devices on vehicles not owned by clients obviously has the same intrusive qualities as the installation of telephone taps without one-party consent. An attorney
knowingly sanctioning a private investigator's clandestine electronic tracking could be charged under Michigan law with conspiracy, a felony.
A few private investigators are actively opposing Senator Dingell's legislation, apparently believing that the use of such devices would be legal without the passage of the bill.
The only justification I have heard for private investigators using such devices is that surveillance might otherwise be too difficult for those few P.I.s who must rely on aids such as these. Such devices and other trendy gimmicks are simply crutches
to be used by persons who might be better suited to less demanding occupations. My associates and I have had the opportunity to conduct successful moving surveillances without electronic aids in such tough environments as Mexico City, Singapore and
Amsterdam. Literally hundreds of other investigators around the world seem to have no problem conducting a simple moving surveillance without electronic dependency.
Another rationale for electronic tracking is that since honest people being electronically tracked would have nothing to hide, they should have no objection. This flawed thinking could apply equally to telephone taps, room bugs, peeping tom activity,
home invasion, ad infinitum. While these crimes are acceptable and routine activities in private detective pulp fiction, they have no place in the real world.
In the late 1960s, some Michigan investigators--who did not do their homework--were taken in by vendors selling high priced psychological stress evaluators which were clearly as illegal in that era as these so-called "bumper beepers" are
today. Ethical investigators who innocently succumbed to the sales pitches offered by folks hawking electronic trackers would be wise to write off their costs as bad investments. Attorneys should be aware that regardless of the opinion of the
investigators, on every case where such a device is used, the investigator is exposing the attorney and the attorney's client to both civil and criminal risks.
Establish Ground Rules
As previously mentioned, often attorneys neglect to provide direction to private investigators contracted for surveillance work. There are a few ground rules attorneys should insist their private
investigators follow when engaging them for surveillance assignments.
Obviously, the first rule is for the attorney to specifically prohibit the investigator from using any type of electronic vehicular tracking device, except in cases where the vehicle is owed by the client.
Attorneys should also make it clear that private investigators working routine surveillance cases should not carry firearms, unless unusual circumstances exist. Attorneys should specifically authorizes armed surveillance only on a case-by-case basis.
Additionally, attorneys should mandate that if a subject does become aware of a surveillance by the private investigator, the surveillance should be terminated immediately. Continuing to follow a subject after the surveillance has been exposed, is,
of course, of no value whatsoever and can result in unwarranted exposure. Wily insurance "fraudsters" might take such opportunities to move and act in a manner consistent with their alleged disabilities in an effort to support false claims.
Others, however, might take unsafe traffic risks attempting to elude the surveillance. In these cases, in addition to the increased driving hazards, there exists a fine line between following, harassing, chasing and even stalking a subject.
The investigator should be prohibited from conducting surveillance from any location other than public property or property normally accessed by the general public, such as a restaurants, parking lots or shopping centers. Surveillance from private
residential property adjacent to the subject's home should be specifically prohibited, except in cases where the property owner has provided written consent.
Clearly, it makes good sense for attorneys to obtain certificates of insurance for both workers' compensation and general comprehensive liability coverage from private investigators. In Michigan there is no legal requirement for investigators to
maintain liability insurance coverage. A license bond is required for licensing; it is not a third party fidelity bond, and it offers little or no protection to investigative clients.
Conclusion
Surveillance, when conducted properly, is very productive investigative tool and most Michigan private investigators conduct surveillance operations in a legal, ethical and professional manner. Those few
who provide unnecessary exposure to their attorney clients typically do so unintentionally and will be pleased to work within reasonable parameters provided by their clients.
Many years ago, my client's corporate counsel advised a department head that secreting clandestine audio transmitters in a conference room to surreptitiously monitor conversations was okay because the conference room was the property of the company.
When I, being more familiar with applicable law in that area, subsequently pointed out the one party consent requirement in that state, the attorney was appreciative that he had not become inadvertently responsible for violating the law and
increasing liability risk for his employer.
Professional investigators are often not attorneys--they will welcome the expertise and restrictions offered by attorneys willing to spend a few minutes to provide legal input and direction for surveillance operations.
Copyright © 1998 Roger H. Schmedlen
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