To many of us, the stereotype of a Private Investigator or PI, conjures up memories of the popular 1980’s television show Magnum, P.I. The weekly series on CBS portrayed the fictional Thomas Magnum living a relatively carefree life as head of security for the estate of fictional author Robin Masters. The image of today’s PI is somewhat different. Most states require that a PI is licensed in the state where he or she practices. Licensing lends credibility and respectability to practitioners in the profession. PIs often work in conjunction with attorneys and insurance companies regarding potential civil and/or criminal litigation to either substantiate or disprove specific case related facts. They are often involved in cases concerning marital infidelity, tracing debtors, technical surveillance countermeasures, finding lost persons and property, anti-fraud work, and so forth. Typically, retired law enforcement professionals put their experience as investigators to practical use by becoming PIs. So, what does all this have to do with a digital forensic examiner?
Over the past year or so, many private sector digital forensic examiners have expressed concern regarding whether or not his or her state requires them to obtain a PI license. At first glance, this appears to be incongruent with the forensic analyses they perform. To say the least, most state PI laws do not directly address digital forensics (computer forensics). Indeed, the laws were written long before digital forensics was even recognized as a forensic science discipline. However, depending upon how certain language in the current laws is interpreted, it can be construed that a digital forensic examiner may need to obtain a PI license. Several states have modified or are in the process of modifying their laws concerning just who can perform digital forensic examinations within the confines of those states. The current scope of most state laws regarding PI licensing has many commonalities. One commonality is the intent of the legislatures of the various states regarding the necessity of licensing PIs. This is typified by Florida law:
The Legislature recognizes that the private security, investigative, and recovery industries are rapidly expanding fields that require regulation to ensure that the interests of the public will be adequately served and protected. The Legislature recognizes that untrained persons, unlicensed persons or businesses, or persons who are not of good moral character engaged in the private security, investigative, and recovery industries are a threat to the welfare of the public if placed in positions of trust. Regulation of licensed and unlicensed persons and businesses engaged in these fields is therefore deemed necessary.1
Another commonality concerns the handling of evidence. This is generally discussed under the definitions section in the various state laws. Typically, language is similar to the South Carolina law:
(A) “Private investigation business” means engaging in business or accepting employment to obtain or furnish information with reference to the:
(4) securing of evidence to be used in a criminal or civil proceeding, or before a board, an administrative agency, an officer, or investigating committee.2
This commonality probably serves as the impetus for licensing digital forensic examiners since they may examine “evidence to be used in a criminal or civil proceeding.” There are also waivers in the various state statutes from the requirement to obtain a PI license for certain individuals. This is typified by California law which exempts:
An officer or employee of the United States of America, or of this state or a political subdivision thereof, while the officer or employee is engaged in the performance of his or her official duties…3
The interpretation from these commonalities is not at all clear. For instance, what constitutes “good moral character” and how is it determined? Why should an employee of a city, county, state, or federal entity be exempt from licensing but his or her counterpart performing the same work in the private sector need to be licensed? Some statutes, such as Michigan’s, attempt to clarify the issues. Computer forensics is actually defined and specifically listed under its PI licensing statute:
(b) “Computer forensics” means the collection, investigation, analysis, and scientific examination of data held on, or retrieved from, computers, computer networks, computer storage media, electronic devices, electronic storage media, or electronic networks, or any combination thereof.
(e) Investigation business means a business that, for a fee, reward, or other consideration, engages in business or accepts employment to furnish, or subcontracts or agrees to make, or makes an investigation for the purpose of obtaining information with reference to any of the following:
(viii) Computer forensics to be used as evidence before a court, board, officer, or investigating committee.4