Here is our list of 5 things that are illegal in all 50 states
In the last post, we discussed 5 things that a private investigator is legally allowed to do. In this post, we will flip the script and discuss some things that a private investigator can NEVER do, under any circumstances. There are many legal grey areas surrounding private investigators (many of whom take full advantage of this fact), but there are state and federal laws that are in place to protect the public.
If you are a member of the general public and you see any of the behaviors on this list, call the police and the state regulatory board for your state. The behaviors on this list are inexcusable, unethical, and highly illegal. If you are in the business and you use these tactics, give yourself a gut check, because you are in this business for the wrong reasons. Here are five things a private investigator can not do, under any circumstances.
1. A private investigator can not enter your private property under any circumstances.
No Trespassing
This is rule #1 for a reason. This one will get a private investigator in a world of trouble faster than almost anything else. We are bound by the same trespassing laws as anyone else. That means that we cannot break into someone’s home, office, or vehicle to “get dirt” on him or her. We can’t even step foot on your property without your permission. We can’t place secret, covert, hidden cameras on your porch or peek into your windows and videotape you watching tv (or doing anything else). Your property, your privacy, your secrets. We can’t get any of it.
The only exception to this rule is to serve process. Process servers can knock on your door (just like anyone else) and attempt to get you to answer. But they can never enter your home without your permission. Process servers cannot, however, enter a property that has a NO TRESPASSING sign posted. If you don’t want anyone on your property and make that wish known by placing a sign, it’s off-limits.
2. A private investigator cannot access your medical, financial, or educational records.
A private investigator has access to a wide array of information. However, there are certain things that are protected by the federal government and are, therefore, out of reach. Medical (HIPAA), financial, and educational (FERPA) records fall into that category. It is a felony for anyone other than that individual to access these records. Any private investigator who tells you that they can get these records is either a liar or a criminal and you should run.
3. We cannot misrepresent ourselves as a member of law enforcement (unless, of course, we are).
This one is also a big no-no. Thanks to the movies and television shows (Magnum, P.I. anyone?), the general public has come to associate private investigators with law enforcement and many attribute the same authority and power to private investigators as members of law enforcement. This is simply not true.
With very few exceptions, private investigators are bound by the same laws and restrictions as everyone else. This means that we cannot say we are police officers; it means we cannot wear clothing identifying us as law enforcement; it means we cannot carry badges stating that we are a member of the local police force in an attempt to manipulate someone into complying with our “orders.”
4. We can’t “hack” into someone’s electronic devices (cell phones, tablets, etc.).
Phone Hack
Even the FBI can’t brute force your cell phone and get access without your authorization (or help). Remember that big case a while back where Apple refused to unlock the iPhone of the shooter at a naval base in Pensacola, Florida? Well, there is a reason why. Law enforcement did not possess the means to bypass software security measures and force open someone’s phone or tablet or computer.
This is not only illegal, but it is also very difficult to do, and most private investigators simply do not have the resources or the expertise (or the legal authority) to do it. Without a court order or the user’s express permission, there are no legal means of gaining access to another person’s private electronic devices. It just can’t be done, and no investigator who values his or her license will touch it with a ten-foot pole, so stop asking us to do it.
5. We cannot wiretap someone’s phone.
wiretapping
This, again, violates federal law. In some states, it is necessary to notify one party of the recording; in other states, both parties must be made aware. Wiretapping violates both of these mandates and, without a court order, is illegal in all fifty states.
In line with this, we also can’t install hidden cameras in someone’s house or hotel room without their knowledge and consent (which would, of course, invalidate the entire point of a “hidden” camera). So please don’t ask us to do it.
So, that was five things that a private investigator can not do under any circumstances. Laws vary by state, but the things we discuss here are illegal in all fifty states. If any private investigator ever offers you the services described in this article, run the other direction. That is not someone you want to do business with. It will invariably backfire and could wind up putting you both behind bars.
Shaun is the owner of Red Door Investigations. He has a Ph.D. in psychology from the University of Texas at Arlington and is a licensed pilot and certified scuba instructor.
Ever wonder what things a private investigator can do that are legal during the course of an investigation? Here is a list of five things that a private investigator can do, along with some common misconceptions and best practices. For each item in this list, we will discuss some of the things we are allowed to do legally, a common misconception about this allowance, and why this misconception is incorrect. For a list of what we are NOT legally allowed to do, check out the upcoming companion piece to this one, Five Things a Private Investigator CAN NOT Do Under Any Circumstance.
1. As long as we aren’t on private property, a private investigator can sit outside of your house or workplace and watch everything you do.
The street you live on (or work on) is technically public property and anyone can park there, including private investigators. Your private property starts at the curb. Even the sidewalk right in front of your house is public property. We can, technically, stand on that sidewalk right in front of your house and this is not considered trespassing. This is, of course, VERY bad form and no self-respecting private investigator would ever dare do this, but legally we are allowed.
Although we aren’t allowed to peek inside your house for ANY reason, we are allowed to park on the public street with a clear view of your house or workplace and take photographs or videos of you the instant you step outside. (BE WARNED: Peeking in through open windows and/or blinds is a legal grey area…it COULD be argued that if it’s visible from public property, then you wouldn’t have a “reasonable expectation of privacy,” but that’s a very narrow and very scary edge that would terrify even the most morally loose private investigator and no one who values his or her license would want any part of it.)
Once you leave the physical confines of your house or workplace and are within view of the general public, there is no longer an expectation of privacy. Even things that happen inside your car aren’t off-limits. If we can technically “see” it from public property, then we can record it. That is a fancy way of saying that everything you do is now in the public realm and we can watch you and take your photograph while you do it. Hopefully, without you even suspecting we are there (if you spot us, we have failed).
This doesn’t mean you shouldn’t be vigilant about strange or suspicious vehicles parked on your street. If you see a vehicle that you feel doesn’t belong there, please call the police. The police will question the individual and make sure they have a legitimate reason for being there. And if not, they will force the person to leave.
MISCONCEPTION: I have to authorize any picture or video taken of me.
Nope. The right to consent is only available for commercial use and only holds if we plan to sell your image for profit (even this is a grey area–think paparazzi). This is the source of the confusion. Because private investigators are paid for their services, it’s oftentimes confusing for the general public that they can obtain “evidence” without the person’s consent. However, the workaround is that private investigators are paid for their time and their expertise, not for the evidence we obtain. We are not selling the picture or the video, we are selling ourselves and our effort and, therefore, do not require your consent to photograph you. Smile!
2. We can follow you wherever you go and record everything you do there (yes, even that).
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This is kind of a corollary to #1 above, but I wanted to re-iterate it again. If we can “see” you from where we are on public property, you are fair game. Be VERY careful about what you do in public. We are very sneaky and have all kinds of high-tech sorcery that allow us to blend in and appear bland and nondescript. Forget the fedora, trenchcoat, and magnifying glass. We make our livings out of blending in and not drawing attention to ourselves. Again, if you notice we are there, we have failed.
MISCONCEPTION: If I am in my car, then what I do is private.
Negative. We can’t ENTER your vehicle (obviously), but your car has windows and we can see through those windows just like you can. If we can SEE it from public property, then we can RECORD it from public property. I’ll say it again for the people in the back: BE VERY CAREFUL WHAT YOU DO IN PUBLIC! If you don’t want to see yourself on video in a court of law one day or you are doing something you wouldn’t want your spouse to know about, think twice before doing it anywhere in public. Think twice before doing it at all, but you get my point.
3. We can go through your garbage.
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This one surprises a lot of folks. Destroy/shred/whatever anything you don’t want to be recorded, gone through, and shown to a judge/jury, your insurance company, or your spouse. Don’t throw away your bank statements, telephone records, or the receipts you used to take your mistress out on the town. Destroy them. Even shredding has its limitations and a highly skilled and resourceful private investigator can piece them back together again.
There is one caveat, though: we can’t touch it, look at it, open it, etc. until you set it out to be collected by the city. Trespassing laws are pretty strict and until you set it out on the street to be collected, it’s still on your property and we can’t touch it. We can, however, watch your property and scoop it up as soon as you set it out for the garbage man.
MISCONCEPTION: Because my trash is mine, it’s private and it’s safe from prying eyes.
Wrong. Once you set it out to be collected, it becomes public property and we are well within the law to drive right up to your curb, throw it in our vehicle, and speed off without you even knowing it’s been done. We just saved the garbage man a stop and your trash is now a treasure trove of useful information. Fans of the television show Columbo should know this was a favorite tactic of the famous detective. He always went through the trash. It can be a gold mine.
This is mainly because people aren’t careful about what they throw away. The trash is actually one of the worst places you can dispose of sensitive documents or information. Think before you throw anything away. There are many people who realize the potential in your garbage. Not only can private investigators use it for evidence, but it can also be a treasure trove for identity thieves.
Also, don’t set your trash out “the night before.” Wait until the morning of pickup to set out your trash and do it as close to pick up time as you can. This will minimize the window of time that thieves and others (we) have to scoop it up. If it’s out there all night while the whole world is asleep, then you’re just asking for it to end up on a table somewhere and poked through.
4. We can lie…to you, your family, and your acquaintances (NOT our clients, though)
This is given the fancy-sounding name “pretexting.” Whatever you call it, it’s basically lying and this right here is one of the many reasons private investigators have kind of a “shady” reputation with the general public. A pretext is a gambit designed to do one thing, trick you (or those who know you) into giving us information. And in this game, information is everything. Private investigators are in the information-gathering business. It’s what we do.
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We can call, text, DM, etc. your family, your job, your neighbors, etc. and social engineer them in a way that sets them off guard and pushes them to inadvertently help us get information on you. Social engineering is essentially tricking someone into giving out information they wouldn’t normally divulge. It takes many forms and can be used for all kinds of nefarious practices by people with less-than-legal (or moral/ethical) intentions, but private investigators use it legally all the time. And your social media accounts make this almost effortless. It’s one of the first places we look. Pay very close attention to what you post online and what you allow others to “tag” you in, especially pictures. We have closed many cases of infidelity without even leaving the office simply by scouring social media and downloading pictures of the subject all smoochy-smoochy with someone who is not the spouse or significant other.
There are a couple things we can NOT do within this arena. We can’t misrepresent ourselves as law enforcement or a representative of a real-life company. That’s a big no-no. We also can’t misrepresent ourselves as a real person to get private information on that person. A private investigator can’t call your bank and pretend to be you in order to get information about your account, for example. It’s also a legally grey area to use pretext when a subject is represented by counsel in pending litigation. This can potentially land the private investigator in trouble with the court and that investigator could find him or herself at the business end of a TRO and/or harassment suit.
But, we can certainly be your “long-lost classmate” who is looking for you so we can get your address for our upcoming class reunion, we can be an “old college buddy” from back in the day who is inviting people to the wedding of someone we know you have in common, or we can pretend to have something of value that you “dropped on the subway” and we would very much like to return it, if only we knew where you work so we could drop it off, etc. It sounds hokey and like something that would never work, but you’d be surprised at the information you can get if you ask for it the right way.
MISCONCEPTION: Any evidence gained via pretext or misdirection is inadmissible in court.
Wrong again. This is a common misconception spread by television and movies. Much like a police officer doesn’t have to tell you they are a police officer if you point-blank ask them (this is also a myth), a private investigator does not (and never would) disclose who they are during a pretext scenario. This would invalidate the entire reasoning behind the endeavor. We want the information, and as long as we don’t misrepresent ourselves as law enforcement or the representative of a real-life company (see above), then we can misdirect and set off-guard anyone we think can point us in the right direction.
5. We can use any public record available in order to deliver the most complete package of information to our clients.
Private investigators have access to all kinds of juicy information about you. You’d be awestruck at the sheer volume of information about you that is floating around in the world. Edward Snowden didn’t even scratch the surface of the surface. Everything you do online is cataloged and databased and essentially sold to the highest bidder under the context of “advertising.”
Everything.
There are a few things we (or anyone else) aren’t privy to. For example, medical (HIPAA) and financial records are off-limits and protected by the federal government. Interestingly, so are educational credentials (FERPA). We can’t get your college transcripts, your bank records, or the results from your most recent doctor’s appointment. But pretty much everything else is available for the taking for someone who is crafty and knowledgeable enough to know where to find it. This skill oftentimes goes by the moniker OSINT (Open-Source INTelligence) and is a service we offer to our clients, both outbound (gathering outside information on another person) and inbound (shedding light on their own vulnerabilities).
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MISCONCEPTION: My information is private and protected and companies have my best interests in mind when they collect it.
Ha! That’s funny. I hope you’re starting to notice a pattern here. There is no more privacy in the digital world. For someone who is motivated enough, any information about you can be gotten with enough determination and skill. You’ve read the horror stories about identity theft and corporate hacking centered on the release of the personal data of thousands (or even millions) of unsuspecting and trusting individuals. These are real. Your information is NOT safe. Just do the best you can, cross your fingers, and hope for the best. There are a few things you can do to protect yourself and minimize your risk, but that is far outside the scope of this article.
Just know that your data is out there and it’s never coming back. Be very careful who you allow to have access to your information and check your passwords and privacy settings often. It’s the wild west out there.
Conclusion
So, that was five things that private investigators are legally allowed to do. There are many more, of course, and we will discuss those in a future post. Many of the laws governing private investigators are state-specific and what is allowed in one state may be banned in another (recording phone conversations, for example). But this list is pretty inclusive. Most of the private investigators licensed and working in the US today are able to (at a minimum) do the things outlined in this list. And it’s all perfectly legal.
Check out our next post where we will discuss some of the many things private investigators CAN NOT do, under any circumstances.
Shaun is the owner of Red Door Investigations. He has a Ph.D. in psychology from the University of Texas at Arlington and is a licensed pilot and certified scuba instructor.
