GPS trackers are among the hottest topics in ethics discussions today. At least, that is my impression after a series of ethics lectures I’ve given around the country based on my book, The Art of Fact Investigation.

Map pin flat above city scape and network connection concept

We wrote three years ago about the need for caution before using one of these devices on someone else’s car, here.

They are powerful devices that gather up a ton of information that it would take thousands of dollars and round-the-clock surveillance to duplicate. Today, the trackers are probably among the fastest-changing areas of privacy law, and for good reason.

We know it’s illegal to get someone’s cell phone records, though many people still offer this service. (It’s still illegal. If they offered you drugs or contraband, would you buy it anyway?) Banking and medical records, similarly, are off-limits without the other person’s consent or a court order. Yet, in many states it was only recently that placing a GPS tracker on someone else’s vehicle was not seen as an invasion of privacy.

Times are changing fast. In 2011, the Supreme Court held in U.S. v. Jones that placement by the government of a GPS tracker on anyone’s car amounted to a Fourth Amendment Search that required a warrant. The court split over the reasoning, but gradually the concurrence by Justice Alito (joined by Justices Ginsburg, Breyer and Kagan) seems to be taking hold. They concurred that GPS trackers by the government need court supervision, but not because this amounted to trespassing but because people have a reasonable expectation of privacy that their every movement won’t be monitored that easily.

The Jones case didn’t address the issue of private parties slapping these devices on the vehicles of others, but the states seem to be following suit with respect to the “reasonable expectation” theory.

Among the milder restrictions is New York’s, which  added GPS trackers to its anti-stalking law. If you tell your estranged husband to leave any trackers off your car, he’s got to abide by that or face misdemeanor charges. As his lawyer who ratifies that illegal conduct, you could be up on before an ethics panel.

California and Texas have gone further: you just can’t put these trackers on someone else’s car – period.

In my view, that’s the way the rest of the states are probably going. Laws that restrict the placement of trackers to those that don’t drain the car’s battery miss the privacy point and people just won’t put up with this forever.

So, to be safe, put these trackers on a car only if the person authorizing the placement is the owner of the vehicle.

There are plenty of workable alternatives to using GPS trackers. Not as cheap, not as comprehensive, but still legal. We will go over some of those in the next posting.

Want to know more?

  • Visit charlesgriffinllc.com and see our two blogs, The Ethical Investigator and the Divorce Asset Hunter;
  • Look at my book, The Art of Fact Investigation (available in free preview for Kindle at Amazon);
  • Watch me speak about Helping Lawyers with Fact Finding, here.

One of the most powerful tools a spouse had to monitor assets or other activities is to look at the shared computer of the spouse under investigation. We have written before in When You’re Allowed to Look Through Your Debtor’s Computers and Phones that as long as a person can show ownership of the computer, anything on that computer is probably fair game to look at, subject to some exceptions.

Hacker in old warehouse.

Sending the contents of what you find to the cloud (a remote server controlled by someone else) is another question. A new case in the Sixth Circuit this month held that software that monitors keystrokes and content amounts to illegal wiretapping under both federal and Ohio statutes. You can read the case, Luis v. Zang here.

This case involved a technology called WebWatcher, which allows a person to monitor a computer’s activity. Where it got the company and the husband in trouble was that WebWatcher allows you to look at the material in nearly real time once the content of the computer activity is stored on the company’s server. The fact that WebWatcher appears captures the information contemporaneously is what turns this into wiretapping, the court held.

The critical distinction in wiretapping jurisprudence is between instantaneous access and access to information that’s stored. If all WebWatcher did was to store a record of the emails sent and received on the computer, that would not have been wiretapping.

The decision applies to the Sixth Circuit, although all the circuits agree that to have wiretapping you need contemporaneous capture of the information. Depending on the kind of software you use to log keystrokes and the transmission (if any) of that information, you could end up with what the Sixth Circuit calls wiretapping or just storage of information you have a right to see.

What’s certain is that it’s incumbent on any lawyer using such information to know how the program works. Just because it comes out of a small box you buy at a big box store doesn’t mean it will produce admissible evidence.

Want to know more?

  • Visit charlesgriffinllc.com and see our two blogs, The Ethical Investigator and the Divorce Asset Hunter;
  • Look at my book, The Art of Fact Investigation (available in free preview for Kindle at Amazon);
  • Watch me speak about Helping Lawyers with Fact Finding, here.

 

You wouldn’t want to ask anyone to steal bank account information about your client’s spouse. You would never ask for the theft of that person’s medical records. You would not try to break into his office to take the computer on his desk to see his work email.

So why would you delight in using information stolen from Ashley Madison? Why would you even endorse it, as many have, because it somehow gives wrongdoers what they deserve?

Where adultery is legal, disapproving of the activity is no reason to commit a crime. If the Ashley Madison break-in was OK, so was Watergate.

Of course, using information that is in the public domain is different from using information that you yourself have stolen. Newspapers in the U.S. routinely report the products of illegal leaks, but even journalists in countries outside the U.S. who do not enjoy First Amendment protections need to be careful about possessing stolen information.

The next time a newspaper (even in the U.S.) reports on a leak and writes that its reporters have reviewed (but not obtained) documents, you might ask why they didn’t make a copy. It could be because possession is worse in the eyes of law enforcement than a quick look at what someone else obtained.

With Canadian police saying that they intend to prosecute the leak of Ashley Madison’s information as a theft, just as they would go after a bank robber or a credit card hacker, we should ask ourselves what to do with the information that comes from the theft.

Is it admissible into evidence? Lots of information that is reported in the newspapers or on the internet every day would not be admissible, because it is hearsay and doesn’t fall into one of the many hearsay exceptions, or maybe because it violates the no-contact rule. Or, it was procured legally but in a way that bar associations would view to be unethical. For instance, recording a phone conversation is legal in many states if just one of the two people on the call knows about the recording, but many bar associations say lawyers should not record conversations unless someone’s liberty is at stake.

The search for assets would not likely take us toward the Ashley Madison database to begin with. But if one day a client asked about it, my preference would be to warn my client that this is stolen property and to let them look if they want (how can you stop them?) If my client were outside the U.S., I would warn them to proceed with even greater caution.

 

Back in January, we posted a story about a Canadian investigative company whose owners, Michael Grontis, Cullen Johnson, and Elaine White, had fleeced their customers out of millions by promising to find assets hidden in offshore accounts.  Instead, they created fraudulent bank records and passed them off as real.  These crooked investigators’ work has surfaced once again, this time in the divorce of a Malaysian tycoon.

Shahnaz Abdul Majid claims that her husband Datuk Seri Mahmud Abu Bekir Abdul Taib, a prominent Malaysian businessman and government official, is worth hundreds of millions of dollars.  She says that much of his wealth is in the form of offshore accounts and investments in foreign companies in Australia, Canada, the U.K., and the U.S.

The problem with Majid’s assertions is that they are based on the “forensic accounting” work of convicted fraudsters Johnson and White.  Taib, of course, maintains that he has far less money than his wife thinks he does, and that Johnson and White fabricated records of fictitious overseas accounts and investments.  Given that Johnson and White are currently serving a five year prison term for doing just that, his allegations just may be true.

The problem is that he still may be hiding money, and he is more likely to get away with it because Majid used investigators who were willing to break the law to give her what she wanted.  Just assume for a moment that the bank records showing foreign accounts were real, she still went about getting them the wrong way.  We’re not experts in Malaysian evidence rules, but in the U.S., what reasonable judge would even glance at bank records that are unauthenticated and illegally obtained by an investigator?

Any investigator or forensic accountant worth their salt should have explained the dangers of illegally obtaining bank records and the advantages of doing things the right way.  As we tell our clients all the time, accessing someone’s bank records without their permission or a court order violates federal and state law, and can lead to criminal prosecution.  Even though we can’t get bank records, we can often find more than enough information through legal means to help you determine a spouse’s net worth.

We can identify real property, stocks, corporate holdings, deferred compensation, pensions, and countless other forms of assets through public record searches.  Interviews with former employees or business partners can also tell you where a debtor or his companies do their banking.  You can then issue appropriate discovery demands or subpoena records directly from the debtor’s bank.

In the end, following the rules will get you more and better information, and it will also ensure that the information you find can be used to your benefit in court.

Revenge is a dish best served cold, so if you’re going to tape a spouse or significant other, be cool about how you do it.

Donald Sterling may yet hang on to his basketball team, and his (probably now former) girlfriend V. Stiviano may owe him $7.5 million in damages when this is all over.

The message for people in rotten relationships regardless of what Stiviano did: check your state law about secret recording of conversations before you push the “record” button.

Now the lead for most news broadcasts in this country is the lifetime ban and $2.5 million fine imposed by the NBA against Los Angeles Clippers owner Donald Sterling, whose racist words appear to have been captured on a recording. The substance of the words aside (vile and indefensible), a major question remains: if Sterling didn’t know he was being taped, then this was an illegal recording. His girlfriend claimed that Sterling knew about the recording, according to website TMZ.

She had better be able to prove it.

Under California law, both parties to a secretly recorded conversation need to know that the recording is taking place. This places California among a group of jurisdictions in this country known as “two-party” states. In other states, what Stiviano did would have been legal whether or not Sterling knew about the recording.

We’ve written about the laws and ethics surrounding recording conversations, here, in Taping Phone Calls Is Not Worth the Risk.

Not only could Stiviano go to jail for what she did, but under the California statute Sterling could recover three times the damage he suffered as a result of the illegal recording. Excluding any damages he can show from his lifetime ban, that’s $7.5 million he could recover from Stiviano.

Won’t happen? Maybe not if Sterling is persuaded through commercial pressure to suck up his punishment or sell his team, but consider the risks of doing your own illicit recording operation.

In addition to the money, remember that illegal evidence gets excluded from trials. Most people aren’t governed by the quasi-monopolistic regime of a professional sports league. Sterling doesn’t have the same rights before his Commissioner the way he would in court. Who recorded this conversation? What happened to the tape after the recording? Was it doctored? Did he give his consent to the recording? Both sides in a real trial fight it out even if it’s admitted into evidence.

And if it’s excluded as evidence? It’s like a tree that falls in the forest with nobody around. It may make a sound, but you know for sure the judge or jury won’t get to consider it.

PROBLEM: 

You want to know what your debtor is hiding from you but you’re not sure if it’s okay for you to secretly look through your debtor’s phones and computers.

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SOLUTION:

Although privacy laws vary state by state, as a general rule, you should be more cautious than not in this territory.  In New York, for instance, you could be convicted of a Class A Misdemeanor if you access or use a computer without authorization.  You might even risk running up against federal law.

Say you want to take a look through your debtor’s files on the family computer–the issue boils down to whether or not you are authorized to access the computer.  If the computer is a shared computer, the answer is probably going to be yes.   If we’re talking about password protected files and computers, things get a little murkier.

If the computer or file was password protected, did your debtor willingly give you the password at some point?  If he did, you probably have authority.  If not, steer clear.

If you’re thinking about trying to crack your debtor’s work blackberry or work computer, don’t.  You are not authorized to view information on devices paid for by your debtor’s employer and you do not want to risk accessing his employer’s proprietary business information.  Be careful.  Judges do not hesitate to exclude evidence that was improperly obtained.  What’s the point of gathering information if you’re not going to be able to then use that information in court?

We like to take a cautious approach here.  If you’re authorized to use the computer or phone, take a copy of the hard drive, preserve chain of custody by properly bagging and tagging it, and then let the judge decide what you can look at.  Patience pays off.  This approach may take longer, but it will be worth it to avoid the potential exclusion of probative evidence, ethics inquiries and possible criminal penalties.

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San Francisco area divorce attorney Mary Nolan was sentenced last week to two years in federal prison on multiple felony charges, including illegal wiretapping and tax evasion.  Her crimes included hiring private investigator Christopher Butler to use dirty tactics to gather incriminating evidence against her clients’ husbands.

At Nolan’s direction, Butler planted listening devices in the husbands’ cars and used beautiful women to trap them in compromising situations.

Nolan and Butler’s most sensational scheme was that of the “dirty DUI.”  Butler would hire attractive women to meet the husbands of Nolan’s clients at a bar and lure them into having a few drinks.  Butler, an ex-cop, would then tip off his friends in law enforcement as the husbands left the bar, and the cops would catch the husbands driving under the influence.  Butler is currently serving an eight-year prison term for his illegal investigative tactics, along with robbery, conspiracy, and extortion.

We speak to lawyers all the time who tell us that they don’t mind if their investigators break the rules, so long as they don’t know about it.  Well lawyers, I hate to break it to you, but you should mind.  ABA Model Rule of Professional Conduct 5.3 requires lawyers to “make reasonable efforts to ensure” that people you have hired to act on your behalf conduct themselves according to the “professional obligations of the lawyer.”  Comments 2 and 3 of the Rule specifically refer to investigators and state that the supervising attorney must instruct their investigators on ethics requirements and that the attorney is ultimately responsible for the investigators’ work.  Finally, Rule 8.4(a) prohibits lawyers from using a non-lawyer to do something the lawyer is proscribed from doing under the Rules of Professional Conduct.

The moral of the story is that turning a blind eye will not insulate you from responsibility if your investigator steps over the line.  Criminal liability is rare, but using unethical investigation tactics can lead to important evidence being excluded from court or other serious sanctions that will hurt your clients and your reputation.

We make every effort to stay apprised of the latest developments in ethics rules, and we are frequently called upon to teach continuing education courses on ethics in investigations to attorneys and investigators.  We are firm believers that with a little creativity and persistence, you can get the information you need without breaking the rules.

We recently came across a Huffington Post story about police in Richmond, Virginia using the dating website okcupid.com to make an arrest.  A warrant was out for the arrest of Ryan Covington for failure to appear in court on a charge of breaking and entering into a vehicle.  The officer in Virginia found Covington’s okcupid profile online and created a fake dating profile under the name “Sasha.”  “Sasha” messaged back and forth with Covington and ultimately set up a date.  When Covington arrived at the date looking for Sasha, he was instead met with the officer who arrested him on the spot—not the ideal first date situation.

Law enforcement has much more leeway with their tactics than lawyers and investigators do.  We could blog for days about why we never use pretexts in our investigations, but this case brings up a form of pretexting that we aren’t often asked to do.  Usually, our clients want us to use pretexting to gain access to bank or phone records.  As we’ve blogged about here and here, both scenarios are illegal under federal statutes.  However, using pretexting in the form of a fake profile on a dating website might help gather other types of information.  For instance, in the matrimonial context, you might get answers to questions such as, who employs your debtor or where he/she is living.  You might even gather evidence that tends to show that he/she cheated.

All of that said, pretexting in this context is a bad idea and, at the very least, unethical.  As attorneys, we have to be very cautious not to breach ethics codes which, in all states, forbid attorneys from making false statements, or from using others to make false statements to elicit information.  On top of that, attorneys and their agents, including investigators, have to make sure not to violate the “no contact rule,” that is, not to contact represented parties involved in a litigation.

But what if you’re neither an attorney nor an investigator acting at the behest of an attorney? You may think that the rules don’t apply to you, but remember, while engaged in litigation you are going to want to exhibit “best behavior” in front of the judge.  A judge will probably not like to hear that you created a fake online dating profile to draw information from your soon-to-be ex, but a judge will want to hear if your spouse is refusing to give you information to which you are entitled.

Additionally, we can’t stress enough the importance of asking the right questions during the court’s discovery process and, even before that, doing enough research to know what the right questions are.  As investigators, we’re often able to legally and ethically get the information you need through use of our proprietary databases, interviewing (without a pretext) and review of the public record.  We can put you in the right position to get the discovery you want without placing the law or ethics at issue.