In recent years private investigators have come under increasing scrutiny and pressure from zealous privacy advocates, national and state lawmakers and perhaps most importantly attorneys and civil courts. Numerous courts have recently held that information brokers and private investigators can be liable for the harms caused by selling personal information without just cause or permissible reason. There have been several awards being meted out against private investigators who have unwittingly assisted a stalker in the location of his prey. In some instances clients have murdered the person the investigator was hired to find.
Take the case of Amy Lynn Boyer of New Hampshire; a man obsessed with this young lady since high school, Liam Youens, hired a private investigator to find Ms. Boyer and obtain here date of birth and place of employment. A credit header search and a pretext call later and the investigator was successful. Youens subsequently shot and killed Ms. Boyer. The private investigator was sued for wrongful death; invasion of privacy through intrusion upon seclusion; invasion of privacy through commercial appropriation of private information; violation of the Fair Credit Reporting Act; and violation of the New Hampshire Consumer Protection Act. All of this tragedy occurred over a $45 assignment. This is just one highly publicized event among dozens in the last decade.
Is this increased scrutiny going to stop the business of skip tracing? Not hardly, but as prudent people I hope that you will take precautions against giving information to potentially bad people with nefarious plans for any amount of money. I believe that we have a duty to protect the public to the extent that we should never facilitate the harm or death of the subjects of our investigation. How do we accomplish this when we cannot always know the ultimate intent of our client with 100% certainty? We have to act responsibly. This is part of the ethics of skip tracing and the bottom line is that the more instances like the Boyer homicide that make it to press, and then on to the legislators, you will find that our tools are going to be taken away and our jobs will become increasingly difficult and less profitable.
For skip trace assignments on behalf of non-commercial clients that do not fall under permissible purposes as defined by the Fair Credit Reporting Act or the Gramm-Leach-Bliley Act, many private investigators have instituted a, for lack of a better description, “Subject’s Right of Refusal,” which states that a client will not be given a subject’s sensitive or personal information, including their whereabouts, without the subject being notified of the investigation and given the opportunity to decide whether or not the information is shared with the client. We get the decision of the subject in writing as well.
Will this cause some clients to go elsewhere for the investigation? Absolutely. I’ve lost probably a dozen or so potential clients since we first instituted this into our own operation in 2000. My feeling however, is that if the client is not willing to follow this protocol then something is certainly wrong and my own personal well being and that of the subject is not worth any amount of money or sleepless nights. My gut feeling with the majority of these potential clients was unsteady anyway; their refusal just helped me make the final decision not to provide investigative services
I am not an attorney and do not take what I am sharing with you as legal advice. Here is a copy of the “Subject’s Right of Refusal” clause we use in our own investigative contracts and retainer agreements:
“Furthermore, if this investigation is an attempt to locate a person (family member, adoption, reunion, former family member, friend or significant other), for non-commercial purposes that do not fall within “permissible-purpose” guidelines of the Fair Credit Reporting Act, I understand that I will not receive information concerning the subject’s whereabouts, or additional sensitive personal information, until they have signed a waiver authorizing the release of this information to me. In the event that they decline the release of their information, I authorize CompassPoint Investigations to release my home address, email address, telephone number or other contact information to the subject for the purpose of contacting me directly. In any case, I understand that I will still be liable for the cost of the investigation conducted whether the subject authorizes the release of their information or not.”
Are we going to be able to avoid liability in skip tracing assignments? Never, but I certainly feel better about completing them.
We’ve discussed the liability of skip tracing but how about the legality of these assignments? Well it turns out that there are legal guidelines we have to work within when accessing certain types of personally sensitive information and that not understanding or abiding them can have additional legal consequences.
This article is a small excerpt from The Art of Skip Tracing and Missing Persons Investigations, an online skip tracing course for private investigators.