“To tell the truth, I lied a little.”
~Private eye Jake Gittes in Chinatown
The private eye genre has long been a favorite for writers, from the novel The Maltese Falcon by Dashiell Hammett to the current hard-boiled hoax by J.K. Rowling, author of the Harry Potter books, who secretly penned a private-eye novel, The Cuckoo’s Calling, under the pseudonym Robert Galbraith.
Besides having owned my own private detective agency for a decade, I’m also a multi-published fiction author. For the past three years I’ve also been a judge for the Private Eye Writers of America, in which capacity I’ve read over two hundred hardcover private eye novels. Sometimes writers have done their research and compose compellingly realistic investigative scenarios, from conducting witness interviews to what it’s like working for a defense attorney.
And sometimes, writers being writers, they make stuff up. Stuff that no real-world private investigator would do unless he or she liked the word “felon” tarnishing their reputation and deep-sixing their P.I. career.
In this article, I discuss the investigative practice of pretexting, with tips for writers on how their private eye characters can come across as realistic, not ridiculous, when using it.
What Is Pretexting?
Pretexting is, basically, using a phony script to obtain information from someone, often playing on people’s natural desire to talk and be helpful. The pretexter might pretend to be someone else, tell a white lie, or create some other deception to acquire this information. Although in recent years pretexting has gotten a bad rap, when used legally and with good judgment, it can be an indispensable investigative technique.
Often a P.I. will pretext over the phone, although it can also be done in person, by mail, email or phishing. However, fabricating stories to obtain information isn’t typically the first avenue of approach for an investigator. Often, the information a P.I. needs can be found in public records as well as through Internet and database searches. Sometimes, a P.I. can get the information you want by simply asking for it.
Whether a P.I. chooses to pretext, or a writer crafts a scene using this tactic, keep in mind that in certain situations, pretexting is against the law. I’ve outlined three of these situations below:
Illegal: Impersonating a Police Officer, Lawyer, or Doctor
A private investigator must never impersonate a police officer, lawyer, or doctor. Doing so sets the stage for the P.I. spending some quality time behind bars. In our state a few years ago, a P.I. was nailed for not only impersonating an officer, but threatening the subject with a firearm while assaulting the subject. (And this was for a process service!) The subject, after learning the guy wasn’t a law enforcement officer but a P.I., hired an attorney—who filed a lawsuit against the private investigator.
In your story, the fictional P.I. might pretend he’s an officer knowing full well he’s courting a felony charge by doing so (which cranks up the tension). But if your character does this without a second thought, as though pretending to be a cop or lawyer has no possible repercussions, your P.I character could look amateur at best, or just plain dumb.
Illegal: Using Pretexting to Uncover Someone’s Financial Information
It is a federal crime to use a pretext to find out a suspect’s personal or financial information from a financial institution. The 1999 Gramm-Leach-Bliley (GLB) Financial Services Modernization Act makes gaining unauthorized access to banking and financial customer data through pretext a criminal offense.
In the Rocky Mountain News, April 2006, there was an article about James Rapp, a former private investigator, not only infamous for his abuse of pretexting, but for being one of the bad-guy private investigators responsible for the enactment of the Gramm-Leavy-Bliley act. It was Rapp’s attempt to impersonate (pretext) John Ramsey, the father of JonBenet Ramsey, to find out what Mr. Ramsey had purchased at a Boulder, Colorado hardware store that eventually led to Rapp’s downfall. Eventually (FTC v. Rapp, CA 99-WM-783 (D.Col.), Rapp was indicted and convicted for racketeering, with a 75-day jail sentence and four years of probation.
It bears repeating that a P.I. cannot legally access someone else’s financial records and bank information. It is legal, however, if the P.I. gained such information through the subject’s previously submitted financial statements, Dun & Bradstreet reports, and conducted interviews.
Illegal: Using Pretexting to Uncover Information About an Insurance Transaction
In insurance investigations, there are considerations beyond GLB, which include whether the state has adopted the National Association of Insurance Commissioners (NAIC) Insurance Information and Privacy Act (NAIC Model #670) and relevant case law. Insurance companies are regulated by the individual states in which they conduct business. When a state adopts the NAIC Model Act, it becomes state law.
Let’s jump to section 3 of the act, which addresses pretexting:
No insurance institution, agent or insurance support organization shall use or authorize the use of pretext interviews to obtain information in connection with an insurance transaction; provided, however, a pretext interview may be undertaken to obtain information from a person or institution that does not have a generally or statutorily recognized privileged relationship with the person about whom the information relates for the purpose of investigating a claim where, based upon specific information available for review by the Commissioner, there is a reasonable basis for suspecting criminal activity, fraud, material misrepresentation or material nondisclosure in connection with the claim.
If the claimant resides in a state that has adopted the Model Act, and there is “a reasonable basis for suspecting criminal activity, fraud, material misrepresentation or material nondisclosure in connection with the claim,” then it may be legally feasible for the carrier to authorize a P.I. to use some type of pretext.
To take it a step further, state laws may vary slightly. For example, Minnesota’s insurance code does not have the exceptions for a “reasonable basis for suspecting criminal activity, fraud, material misrepresentation or material nondisclosure in connection with the claim.”
Tips for Writers Crafting P.I. Stories
In real life, a P.I. must understand the law before taking action. Which means you, as the writer, need to also understand the law before you write about your fictional P.I. picking up the phone and doing a pretext. Sure, some readers might not know that what the P.I. is doing is illegal, but others will. Why chance an implausible situation?
Plus, it can enhance your story conflict and characterization if your fictional P.I. takes a moment to ponder the pros and cons of an action—for example, your fictional P.I. based in Minnesota knows if he picks up that phone and does a pretext on an insurance claimant, it’s illegal. Nevertheless, he’s toying with crossing the line because the claimant is a scum who hurt a child.
Even with that noble motivation, the P.I. is risking garnering evidence that is inadmissible in court or may even cost him his license. So the P.I. calls his attorney, his good buddy who’s accustomed to these gray-area calls, who says don’t be a fool, if you’re caught, it’s your neck. The P.I. hangs up, torn. You’ve just upped the stakes in your story.
The above scenario also makes your story more plausible than if the fictional P.I. picks up the phone and glibly does an illegal pretext because there’s going to be some knowledgeable reader who thinks, “Wha–? I worked for ten years as an insurance adjuster in Minnesota and there’s no way a P.I. would ever do that and get by with it!”
Let’s say a P.I. typically does domestic relations work, but one day is hired by an insurance carrier to investigate a claimant. The P.I. isn’t sure 1) if her state has adopted the Model Act and if it has, 2) if there are additional provisions within that state’s Model Act. Rather than you, the writer, worrying about how to dig up this information, you can have your fictional P.I. contact her insurance client and ask if they have a pretext policy and obtain their permission to use pretexting.
This probably wouldn’t be the most exciting piece of dialogue, so maybe it’s briefly clarified in a flash of back history (“Having checked with her insurance client, who’d okay’d her using a pretext, she picked up the phone ready to play the ol’ ‘I’m calling on behalf of your high school reunion committee’ routine.”)
Getting Answers to Questions About the Law
The first two resources for questions of a legal nature, outside of an attorney, would be someone in law enforcement, or a reference librarian. Many P.I.s consult with both. At our agency, our first call is often to a reference librarian, who can research both civil and criminal laws; plus, most librarians are naturally analytical types.
About the Author
After graduating with honors from the University of California Santa Barbara, Colleen Collins has worked as a telecommunications manager at the RAND Corporation, technical editor, and private investigator. Her next nonfiction book on private investigations, Secrets of a Real-Life Female Private Eye, will be available on Amazon in August 2013. You can subscribe to her blog about crime writing at Guns, Gams & Gumshoes and follow her on Twitter at @writingpis