The online universe brims over with data and evidence about firms, people and events. But effective access to it can require hiring a private researcher or private investigator. In some cases a lawyer should be the first professional consulted.
A growing trend is that the data you want is hidden from easy public access. There are three reasons for this trend:
1. Right to Be Forgotten. The first reason is the recent ruling in the European Union that search engines like Google and Bing must respect the “right to be forgotten” and remove links to some data about a person when the person requests. The data -- which might relate to an old debt or crime -- may still be publicly accessible on a web site, but easy-to-use search engines (Google/Bing) can’t point to it. It exists in the so-called "Deep Web."
2. Closed Apps and Sites. A second reason for this trend is the rise of apps and web sites that disallow indexing by Google/Bing. Most Facebook content, for example, is not indexed by Google. Much of the content collected by a mobile app – like the health apps published by Noom -- is not indexed by Google.
Many services not indexed by Google do collect loads of valuable information and make it available to subscribers/customers, whether paying or otherwise.
3. Inhospitable Terms of Service. This is the third reason for the trend that data is inaccessible. Legal terms of service that impede investigation are becoming more common. For example, Facebook’s terms say, “If you collect information from users, you will: obtain their consent . . .”
Huh? Those terms seem to say that before you get “public” Facebook info about the target of an investigation you must get the target’s consent. But you may not to do that because you don’t want the target to know you are investigating.
Although terms like this can be subject to interpretation, they can restrict the collection of data or limit its use as evidence in court.
The upshot of the foregoing trend is that recorded information is becoming more fragmented, even as it becomes much, much more plentiful. It is scattered around. Finding it and making sense of it can require the payment of fees and the expenditure of much labor – more money and more labor than was perceived to be true a few years ago when Google/Bing seemed like the universal gateway to the web.
This means professional researchers and investigators are becoming more valuable. Professionals have training and experience. Better ones are creative. They have access to and know how to use many databases and search services, including less-conventional ones like Tineye, an image search engine, or Yandex, a Russian search engine, and fee-based databases like Proquest Obituaries or Ancestry.com.
They are skilled in searching the Deep Web using tools like Biznar, though no one knows how to use every online investigative tool.
Skilled investigators know how – or can quickly learn how -- to use Worldcam to find recent Instagram photos near a certain location. Or they can find and apply new tools, such as Ready or Not, which maps
a person’s recent physical location based on where they were at the time they broadcast a tweet or Instagram post.
Good research might involve a lot of trial and error. For instance, suppose a researcher is collecting information about Courtney. The researcher sees that Courtney talks on Facebook about using the Noom Weight Loss Coach mobile app. The researcher might look up the Noom app, subscribe to it and pay for premium service so as to have access to user forums, where – maybe or maybe not – Courtney would have posted something relevant.
The number of mobile apps is endless; apps come and go like Texas weather.
Sometimes, when a professional gathers research, s/he must be licensed as a private investigator. For example, Texas law broadly requires independent businesses that collect sensitive information to be licensed as a PI.*
When seeking information, the services of attorney may be helpful.
For one, an attorney may possess the necessary skills and license to conduct the investigation himself.
Two: An attorney’s interpretation of terms of service or end user license agreements (EULAs) may be necessary. Terms of service can be confusing or ambiguous. Competent interpretation of the terms may direct an investigation to pursue one course of action (e.g., just taking written notes about what the investigator encounters on a site) while avoiding another course of action (e.g., making copies of material the investigator encounters on the site).
An attorney might recommend a non-obvious method for an investigation to obtain permission before proceeding.
Similarly an attorney can analyze the ethical implications of pursuing one investigative path versus another path. For instance, one path may smack of unethical deception (e.g., pretending to be a former classmate); whereas, an alternative path of investigation may be just as effective but involve no deception.
Moreover, an attorney may be able to cloak the investigation in confidentiality. The “attorney work product doctrine” says that when an attorney does work in preparation for a dispute the attorney’s work is confidential and cannot be discovered by legal means such as a deposition or subpoena.
The work product doctrine is powerful. It is a sibling to “attorney-client privilege” which protects the confidentiality of communications like email or phone calls between a lawyer and his client.
The work product doctrine can protect the attorney’s notes, his research and investigations he preforms or directs others to perform. Thus, if the doctrine applies, the attorney can direct a private investigator to gather evidence from social media or online databases, and the investigation itself would remain legally confidential. This means that an adversary, such as a tax authority or an ex-spouse, could not legally force disclosure of the existence and mechanics of the investigation.
In practice, when an investigation is undertaken, many kinds of potential legal disputes could be present. The potential disputes could cover, for instance:
Here’s a fourth reason for engaging a lawyer. A savvy attorney can analyze and articulate the need for and purpose of an investigation. A well-reasoned mission-statement for an investigation can help guide the scope and methods of the investigation. It can determine what evidence is required and what is not.
An attorney might rationally document that an investigation is needed, for example, for the purposes of
The attorney might then know which private investigators are best suited for the job.
Fifth role of attorney: A sharp lawyer may be able to develop a strategy for collecting hard-to-get evidence in a way that will stand up in court.
What are your comments?
-Benjamin Wright
==
*Footnote: Texas Occupation Code Section 1702.104 reads: "(a) A person acts as an investigations company [which must be licensed] if the person: (1) engages in the business of obtaining or furnishing, or accepts employment to obtain or furnish, information related to . . . the cause or responsibility for . . . loss, accident, damage, or injury to a person or to property. . . . (b) For purposes of Subsection (a)(1), obtaining or furnishing information includes information obtained or furnished through the review and analysis of, and the investigation into the content of, computer-based data not available to the public." Arguably one way that online data may not be available to the public is that terms of service forbid access to it.
Therefore online data that you want as evidence for lawsuit may appear to be public. But if terms of service restrict the collection of it for purposes of a lawsuit, then you may need help from a licensed professional to collect it.
Related: PI License for Computer Forensics Expert
Trend: Evidence Exists, But It is Hidden
A growing trend is that the data you want is hidden from easy public access. There are three reasons for this trend:
1. Right to Be Forgotten. The first reason is the recent ruling in the European Union that search engines like Google and Bing must respect the “right to be forgotten” and remove links to some data about a person when the person requests. The data -- which might relate to an old debt or crime -- may still be publicly accessible on a web site, but easy-to-use search engines (Google/Bing) can’t point to it. It exists in the so-called "Deep Web."
2. Closed Apps and Sites. A second reason for this trend is the rise of apps and web sites that disallow indexing by Google/Bing. Most Facebook content, for example, is not indexed by Google. Much of the content collected by a mobile app – like the health apps published by Noom -- is not indexed by Google.
Many services not indexed by Google do collect loads of valuable information and make it available to subscribers/customers, whether paying or otherwise.
3. Inhospitable Terms of Service. This is the third reason for the trend that data is inaccessible. Legal terms of service that impede investigation are becoming more common. For example, Facebook’s terms say, “If you collect information from users, you will: obtain their consent . . .”
Huh? Those terms seem to say that before you get “public” Facebook info about the target of an investigation you must get the target’s consent. But you may not to do that because you don’t want the target to know you are investigating.
Although terms like this can be subject to interpretation, they can restrict the collection of data or limit its use as evidence in court.
A Professional Can Uncover Scattered Recorded Evidence
The upshot of the foregoing trend is that recorded information is becoming more fragmented, even as it becomes much, much more plentiful. It is scattered around. Finding it and making sense of it can require the payment of fees and the expenditure of much labor – more money and more labor than was perceived to be true a few years ago when Google/Bing seemed like the universal gateway to the web.
This means professional researchers and investigators are becoming more valuable. Professionals have training and experience. Better ones are creative. They have access to and know how to use many databases and search services, including less-conventional ones like Tineye, an image search engine, or Yandex, a Russian search engine, and fee-based databases like Proquest Obituaries or Ancestry.com.
They are skilled in searching the Deep Web using tools like Biznar, though no one knows how to use every online investigative tool.
Skilled investigators know how – or can quickly learn how -- to use Worldcam to find recent Instagram photos near a certain location. Or they can find and apply new tools, such as Ready or Not, which maps
 |
| Map Location of Recent Social Updates by the Target of Investigation! |
New search tools emerge every day!
Good research might involve a lot of trial and error. For instance, suppose a researcher is collecting information about Courtney. The researcher sees that Courtney talks on Facebook about using the Noom Weight Loss Coach mobile app. The researcher might look up the Noom app, subscribe to it and pay for premium service so as to have access to user forums, where – maybe or maybe not – Courtney would have posted something relevant.
The number of mobile apps is endless; apps come and go like Texas weather.
Sometimes, when a professional gathers research, s/he must be licensed as a private investigator. For example, Texas law broadly requires independent businesses that collect sensitive information to be licensed as a PI.*
An Attorney’s Role in Five Parts
When seeking information, the services of attorney may be helpful.
For one, an attorney may possess the necessary skills and license to conduct the investigation himself.
Two: An attorney’s interpretation of terms of service or end user license agreements (EULAs) may be necessary. Terms of service can be confusing or ambiguous. Competent interpretation of the terms may direct an investigation to pursue one course of action (e.g., just taking written notes about what the investigator encounters on a site) while avoiding another course of action (e.g., making copies of material the investigator encounters on the site).
An attorney might recommend a non-obvious method for an investigation to obtain permission before proceeding.
Similarly an attorney can analyze the ethical implications of pursuing one investigative path versus another path. For instance, one path may smack of unethical deception (e.g., pretending to be a former classmate); whereas, an alternative path of investigation may be just as effective but involve no deception.
Attorney Can Invoke Powerful Confidentiality
Moreover, an attorney may be able to cloak the investigation in confidentiality. The “attorney work product doctrine” says that when an attorney does work in preparation for a dispute the attorney’s work is confidential and cannot be discovered by legal means such as a deposition or subpoena.
The work product doctrine is powerful. It is a sibling to “attorney-client privilege” which protects the confidentiality of communications like email or phone calls between a lawyer and his client.
The work product doctrine can protect the attorney’s notes, his research and investigations he preforms or directs others to perform. Thus, if the doctrine applies, the attorney can direct a private investigator to gather evidence from social media or online databases, and the investigation itself would remain legally confidential. This means that an adversary, such as a tax authority or an ex-spouse, could not legally force disclosure of the existence and mechanics of the investigation.
In practice, when an investigation is undertaken, many kinds of potential legal disputes could be present. The potential disputes could cover, for instance:
- defamation
- heirship
- divorce
- child custody
- control of a corporation
- property ownership
- employment discrimination
- tax evasion
- much more
Attorney’s Analysis Can Guide Investigation
Here’s a fourth reason for engaging a lawyer. A savvy attorney can analyze and articulate the need for and purpose of an investigation. A well-reasoned mission-statement for an investigation can help guide the scope and methods of the investigation. It can determine what evidence is required and what is not.
An attorney might rationally document that an investigation is needed, for example, for the purposes of
- personal safety, or
- defense of property in a manner that is proportionate to the threat, or
- confirmation of compliance with law
The attorney might then know which private investigators are best suited for the job.
Fifth role of attorney: A sharp lawyer may be able to develop a strategy for collecting hard-to-get evidence in a way that will stand up in court.
What are your comments?
-Benjamin Wright
==
*Footnote: Texas Occupation Code Section 1702.104 reads: "(a) A person acts as an investigations company [which must be licensed] if the person: (1) engages in the business of obtaining or furnishing, or accepts employment to obtain or furnish, information related to . . . the cause or responsibility for . . . loss, accident, damage, or injury to a person or to property. . . . (b) For purposes of Subsection (a)(1), obtaining or furnishing information includes information obtained or furnished through the review and analysis of, and the investigation into the content of, computer-based data not available to the public." Arguably one way that online data may not be available to the public is that terms of service forbid access to it.
Therefore online data that you want as evidence for lawsuit may appear to be public. But if terms of service restrict the collection of it for purposes of a lawsuit, then you may need help from a licensed professional to collect it.
Related: PI License for Computer Forensics Expert
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