Should a Computer Forensics Expert Get a Private Investigator License?

Across the US, a checkerboard of non-uniform state laws governs the licensing of private investigators and digital forensic experts.

Texas Law is Broad

Some states like Texas broadly require a computer forensics professional to be licensed as a private investigator (PI).  (The requirement depends on what the professional is doing and for whom he is doing it.  If the professional is operating a client-seeking business for investigating issues like liability and the habits and reputation of people, then he more likely must get a license.)

Colorado Law is Voluntary

Other states are not so demanding.  Colorado, for instance, provides for only voluntary licensing of PI’s.  So someone doing PI work in Colorado is not required to get a license. (Note that Colorado is changing soon.)

However, Colorado defines PI work (i.e., a “private investigation”) as broadly covering services that a computer forensics professional might perform, such as the gathering of evidence to be used in a lawsuit.

Experience Required

Although they vary from state to state, the requirements for obtaining a PI license often include much experience that normally comes from working as a police officer.  Many computer forensics pros lack that type of experience because they come from a technical background rather than a law enforcement background.

Advantages of a License

For many forensics experts, a PI license can have advantages.  Arguably the license is a credential that would appeal to clients and might make the expert appear more credible as a courtroom witness.

Furthermore, a license in one state might help in the event that questions arise in another state.  To a limited extent, states provide reciprocity.  Some states have formal reciprocity agreements with a few other states so that a licensed PI in one state can (under conditions) practice in the other state.  For example, Virginia has defined reciprocity agreements with a handful of states such as Florida and Georgia.

Here’s another twist: Oklahoma provides that a PI licensed in another state can get a temporary license in Oklahoma.  Thus, a voluntary license in Colorado could come in handy if an investigator suddenly finds need to extend an investigation into Oklahoma.

Internet Renders Jurisdiction Murky

State PI licensing laws arose when “investigations” were more geographically-centered events.  Evidence was gathered by way of physical processes, such as reading paper records or snapping photographs with film cameras.  So it was reasonably clear when an investigation was transpiring in California (thus subject to California licensing rules) and when it was transpiring in New York.

But today . . . and tomorrow . . . a private investigation can be a much more virtual event.
Online Evidence
 The gathering and analysis of evidence may quickly lead to web sites, mobile apps, and online services, where courts and legal scholars could debate about which state or states (or countries) have legal jurisdiction.  The power of a particular state to regulate a particular private investigation can be unclear.

Informal Reciprocity

Given this lack of clarity, a digital forensics expert (let’s call her Sally) has an additional reason to get a PI license.  Even though she may be physically working in a state like Colorado that does not require a license (licensing is voluntary), she may stumble upon situations where it is at least arguable that her work is extending to some other place.  That other place (e.g., North Carolina) may arguably require a license.

Were a question to arise about compliance with North Carolina licensing law, a PI license from another state like Colorado may reduce Sally’s risk.  Even though North Carolina does not have a formal PI reciprocity agreement with Colorado, an NC legal authority might observe “informal reciprocity.”  The NC legal authority might be a court, a prosecutor or a government agency that does not directly regulate private investigators. (The NC authority might for example be assessing whether to accept legal evidence Sally gathered on behalf of a client and might be tempted to reject the evidence on account of the lack of a license.) But that NC authority may decide, under the circumstances of a case, to ignore the lack of an NC license on account of the PI being licensed in another state, that is, Colorado.

Michigan?

Accordingly, Sally might be wise to seek out a license from a state that is friendly to forensics pros, even though Sally does not expect to do much or any work in that state.

Sally might consider Michigan.  Michigan requires that a computer forensics expert be a licensed PI, but the state has opened a special PI track for computer forensics professionals.  Michigan recognizes that forensics guys often have qualifications that are very different from traditional police-oriented PIs.  See http://www.myharddrivedied.com/blog/michigan-require-cissp-computer-forensic-private-investigator-license and http://www.michigan.gov/lara/0,4601,7-154-35299_61343_35414_60647_35469-204761--,00.html

Please Comment

Dear reader: What do you think of my analysis above?  I don't know everything, and I learn from smart people like you.

Update: Good discussion on Reddit.

Update: Good survey of state laws in regards to licensing digital examiners .