New technology like social media or mobile apps can be remarkably valuable to professional investigators. It can uncover surprising evidence about fraud, crime, tax evasion, regulatory infractions and more.
But the powers of tech-driven investigations are enlarging so quickly that investigators are wise to exercise restraint and discretion. Just because you can gather data about a legitimate target does not necessarily mean you should.
Our legal system supports the application of justice in, say, a child custody contest or an audit for compliance with environmental regulations. Yet our legal system also recognizes that an investigation can go too far.
Anti-Stalking Laws
How far is too far? The answer to that question evolves constantly – and swiftly – as technology evolves. Our society struggles. Legislatures like Minnesota’s enact (for instance) broad anti-stalking laws that read like this:
"stalking" means to engage in conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of the victim regardless of the relationship between the actor and victim. . . .
A person who stalks another by committing any of the following acts is guilty of a gross misdemeanor: follows, monitors, or pursues another, whether in person or through any available technological or other means . . .
Section 609.749, 2011 Minnesota Statutes
One Domestic Dispute
Court cases interpreting the application of such a law under modern technology are few.
A Minnesota court convicted Danny Lee Hormann under this law, sentencing him to 30 days in jail. He put spyware on his wife’s mobile phone and on the family computer; he attached a GPS tracking device to his wife’s automobile. Mr. Hormann maintains what he did was morally justified under the circumstances in his household. “A Spy-Gear Arms Race Transforms Modern Divorce,” Wall Street Journal, Oct. 6-7, 2012.
Professional Investigations
Could a professional investigator, working for a private party or government agency, run afoul of a stalking law like Minnesota's? The Minnesota law contains this crucial exception:
Conduct is not a crime under this section if it is performed under terms of a valid license,
to ensure compliance with a court order, or to carry out a specific lawful commercial purpose or employment duty, is authorized or required by a valid contract, or is authorized, required, or protected by state, federal, or tribal law or the state, federal, or tribal constitutions.
Many investigators pursuing legitimate tax collection or bill collection would believe this exception applies to them, and it does . . . up to some point.
Crossing the Line?
But – technologically speaking -- at what point does the investigator go too far? Example: professional investigators today routinely collect evidence from publicly-accessible parts of social networking sites. But they often fail to comply with the terms of service published by Facebook. Those terms say, for instance, “If you collect information from users, you will: obtain their consent, make it clear you (and not Facebook) are the one collecting their information, and post a privacy policy explaining what information you collect and how you will use it.”
http://www.facebook.com/legal/terms
The literal words of that sentence are lost on many professional investigators like police officers or plaintiff lawyers – who are advancing otherwise justified investigations.
Transforming an Investigation into a Crime?
Could violation of the published terms of a social networking site or a mobile app cause a legal investigation to transform into illegal stalking or eavesdropping?
I don’t know the answer to that question.
But I do believe the boundary between a legal investigation and an illegal investigation is becoming less distinct and subject to greater debate. Social norms defining what is permissible versus what is creepy are in flux.
–Benjamin Wright
Mr. Wright teaches the law of data security and investigations at the SANS Institute.
Update: Aggressive, intrusive recording by way of a cybernetic system like Google Glass could amount to illegal stalking.
But the powers of tech-driven investigations are enlarging so quickly that investigators are wise to exercise restraint and discretion. Just because you can gather data about a legitimate target does not necessarily mean you should.
Our legal system supports the application of justice in, say, a child custody contest or an audit for compliance with environmental regulations. Yet our legal system also recognizes that an investigation can go too far.
Anti-Stalking Laws
How far is too far? The answer to that question evolves constantly – and swiftly – as technology evolves. Our society struggles. Legislatures like Minnesota’s enact (for instance) broad anti-stalking laws that read like this:
"stalking" means to engage in conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of the victim regardless of the relationship between the actor and victim. . . .
A person who stalks another by committing any of the following acts is guilty of a gross misdemeanor: follows, monitors, or pursues another, whether in person or through any available technological or other means . . .
Section 609.749, 2011 Minnesota Statutes
One Domestic Dispute
Court cases interpreting the application of such a law under modern technology are few.
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| Regulatory Espionage |
Professional Investigations
Could a professional investigator, working for a private party or government agency, run afoul of a stalking law like Minnesota's? The Minnesota law contains this crucial exception:
Conduct is not a crime under this section if it is performed under terms of a valid license,
to ensure compliance with a court order, or to carry out a specific lawful commercial purpose or employment duty, is authorized or required by a valid contract, or is authorized, required, or protected by state, federal, or tribal law or the state, federal, or tribal constitutions.
Many investigators pursuing legitimate tax collection or bill collection would believe this exception applies to them, and it does . . . up to some point.
Crossing the Line?
But – technologically speaking -- at what point does the investigator go too far? Example: professional investigators today routinely collect evidence from publicly-accessible parts of social networking sites. But they often fail to comply with the terms of service published by Facebook. Those terms say, for instance, “If you collect information from users, you will: obtain their consent, make it clear you (and not Facebook) are the one collecting their information, and post a privacy policy explaining what information you collect and how you will use it.”
http://www.facebook.com/legal/terms
The literal words of that sentence are lost on many professional investigators like police officers or plaintiff lawyers – who are advancing otherwise justified investigations.
Transforming an Investigation into a Crime?
Could violation of the published terms of a social networking site or a mobile app cause a legal investigation to transform into illegal stalking or eavesdropping?
I don’t know the answer to that question.
But I do believe the boundary between a legal investigation and an illegal investigation is becoming less distinct and subject to greater debate. Social norms defining what is permissible versus what is creepy are in flux.
–Benjamin Wright
Mr. Wright teaches the law of data security and investigations at the SANS Institute.
Update: Aggressive, intrusive recording by way of a cybernetic system like Google Glass could amount to illegal stalking.
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