PRETEXTING & LEGAL CONSIDERATIONS FOR

PRIVATE INVESTIGATORS

Rick Raymond, LPI – www.RickRaymondPI.com

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Pretexting is used every day by private investigators throughout the country, but if lawmakers get their way it could become a thing of the past. Recent trends indicate increasing disdain for pretexting by U.S government authorities.

 In a prepared statement to the Committee On Banking and Financial Services in the U.S. House of Representatives, the Commissioner of the Federal Trade Commission described pretexting as:

      

"…a term coined by the private investigation industry, and refers to the practice of obtaining personal information under false pretenses. This tactic is perhaps as old as the private investigation industry itself. Now, increasing numbers of high-tech private eyes, also known as "information brokers", are touting their ability to obtain surprisingly sensitive information without the subject ever knowing. The web sites of certain companies also imply they can retrieve this information by simply keying a few search terms into one of their many databases, and that such services are perfectly legal. Despite such claims, it appears that the companies can get this information only one way…through plain, old-fashioned lies, i.e., through pretexting."

 Later in the statement the FTC Commissioner stated:

             "The Commission looks forward to working further with this Committee to respond to the problem of pretexting."

 In the article, "E-Sleuths Scrutinized by Feds", written by M. J. Zuckerman for USA Today, pretexting is described as " a dark business". Further, the article makes mention of Rep. Jim Leach, R-Iowa, who has sponsored "the Financial Information Privacy Act of 1999, which would outlaw pretexting and similar practices."

 I'm sure you can see the impact that the above information may have on our industry. It is our responsibility to conduct ourselves in a professional, ethical and legal manner. Many of our clients have begun to prohibit pretexting in the handling of their files. Only one legitimate reason for this exists. Liability.  It is probable that an investigator mishandled a file or unlawfully used a pretext and the client felt the "fallout" from that action. When a client requests that we not pretext a claimant, that client expects us to handle the file accordingly. NO PRETEXT means NO PRETEXT. If you conduct a pretext in a situation where you are not authorized, you do so at your own peril.

 Imagine a client calling to assign a case and specifically requesting a certain investigator NOT work the file. You ask what problems that client experienced. You learn that pretexting had been improperly used by that investigator and the claimant lodged a complaint.

 Another troubling situation might be when a claimant's attorney calls an investigator a few minutes after a pretext call is placed to his client, inquiring as to who the investigator is.

 What should be of particular interest to private investigators is the fact that attorney's, lawmakers, and claimants themselves are knowledgeable about pretexting. Attorneys coach claimants to expect surveillance and pretexting.

If this trend continues, we may find ourselves not able to pretext at all. If and when that happens, investigators who utilized pretexting as the sole means of "solving" a case may find themselves at a loss.

 It is easy to sit back and think that each of us is handling pretexting correctly. Perhaps this article only applies to those "bad seeds" out there that are giving us "pros" a bad name. Be honest! Do you really know what the Graham-Leach-Bliley Act means to you as a private investigator? Are you completely certain that your investigations involving pretexts are legal and above-board? Do you know what your responsibility is in determining if a claimant is represented?

 If you cannot answer these questions, you need to step back and self-educate. If the FCRA, DPPA, and GLB are foreign terms to you, you are putting yourself at risk. Moreover, you are placing the profession at risk.

It is not difficult to look at the current state of affairs within the federal government, and see where the trend is headed. Today, it is "financial" information. Next year it may be "personal" information. Within a few years it may be "all" information. The only way to effect a change in this trend is to stay educated regarding the legalities of pretexting and lawful use of information obtained through our investigations. We also need to "police our own". We must stop winking and grinning when fellow investigators tell their favorite pretext set-up stories. Instruct those investigators that work for you how to conduct lawful pretexts. Set defined objectives and parameters to pretexts. Pretexts should not be telephonic "fishing expeditions". In many jurisdictions this type of technique ("roping") is illegal.

 Until the private investigative community realizes that we determine our own fate in these matters, regulations will continue to stiffen. There is not going to be any agency or group that will come along and clean this industry up. We must do it from the inside. Those investigators that do not employ proper investigative techniques such as pre-surveillance drive bys and public records checks are shooting themselves in the foot. Instead, they choose to show up late for surveillance assignments and use pretexts to "catch-up" on what they missed. Later, they relate how smart and cunning they were in obtaining the information in a two minute phone call rather than two hours of surveillance. Imagine that the investigative process is like a steel chain. Every time a pretext is used, legal or otherwise, a link of that "chain" is weakened. Why? Because contact with a represented claimant during any pretext is a potential liability. Even if a pretext is lawful, it will expose the investigator, and the substance of the investigation, to more scrutiny by legal counsel.

 Pretexting is simply a tool. It should not and cannot take the place of professional, proven investigative methods. Just because a carpenter has a hammer in his toolbox does not mean he uses the hammer to fix everything. He only uses the hammer when it is appropriate. Pretexting should be considered your "ace in the hole" and used only in certain, limited situations. If you view pretexting as the proper way to start an investigation, then you are not subscribing to basic investigative principles and your practices will catch up to you.

 So, how do we combat the attacks made on the concept of pretexting? We only use pretexting when it is lawful and appropriate, and we follow requests as set forth by our clients and abide by laws and regulations governing the use of pretexts.

 © Copyright 2000 – Rick Raymond – All rights reserved.