The Ethics and Legality of Snooping

'You Want Me to Say What?'

Even lawyers who hire us to help them gather facts can get carried away. We were once asked to find out the identity of a woman who was occupying a particular apartment in New York. She had just moved in and thus databases did not yet have her name linked to that address. She lived in a building guarded by an alert and protective doorman, so walking in and reading the lobby board was out of the question.

“Just pretend you're a postal inspector,” said the lawyer who hired us. I was polite about it, but was forced to point out that he had just asked me to break several federal and state laws, as well as to violate both his and my rules of professional ethics. (n.b.: even if I had not been a lawyer, lawyers are not allowed to instruct their agents to violate ethical rules on their behalf!)

While I was pretty sure there is a federal statute about impersonating a postal inspector, I knew for certain that New York has a statute against criminal impersonation. It carries a penalty of up to four years in prison. Consequently, our firm will not impersonate government officials ' or anyone else, for that matter: no pretend journalism, no fake opinion poll or made-up head-hunting firm.

Even if your state has no law against criminal impersonation, it has ethical rules governing lawyers. Making an untrue statement is prohibited in all 50 states, and obtaining information by pretending to be a reporter for The Wall Street Journal or an auditor at Ernst & Young is simply not something an ethical lawyer is permitted to do.

Pretending to be someone you are not is a form of pretexting, and pretexting is behind a lot of illegal activity that touches on the jobs we are asked to do. If we are asked to find out how much money someone has in their bank account, to get someone's cell phone records or medical records, our response is usually the same: If you get that information by pretending to be the holder of the account or the person whose medical records you are going after '

'That's illegal'

Most of our clients do not want to break the law, but I am sure the occasional person who does not call us back after such a conversation is able to find an investigator willing to break the rules. They may be able to fool Verizon or Bank of America into coughing up information that ought to remain private. But it is not worth the risk if they get caught and and become subject to professional discipline or are prosecuted.

'This Is a Recording'

Sometimes, even when an action appears to be legal, the facts can alter the situation. You then throw in ethical restrictions, and what was previously a clear-cut picture becomes murky. A case in point involves recording phone calls. Many lawyers know that state law is divided into two groups with regard to recording phone calls. In the “one-party” states, just one of the two parties on a phone call needs to be aware that recording is happening. In “two-party states,” both parties on the call need to be aware.

We had a client who wanted us to find out the identity of a man with a particular cell phone number. Based on some of the man's responses when we called him, we had a fairly good idea of who he was, but the client wanted greater certainty. He asked us to record the phone call.

Since we and the phone holder were both in one-party states, there should have been no problem, correct? Not so quickly. We found that the suspected subscriber to the cell phone had a weekend house in a two-party state. What happens if you call a number and the call is received in a different jurisdiction (in this case, a two-party state?) The state where the call is received is the one that governs.

Furthermore, even if a taped call is legal, it may not be ethical. Many U.S. courts have expressed skepticism or downright hostility to the idea of lawyers taping phone calls. In New York, where we operate, the bar has tended to bless recorded phone calls only when personal liberty is at stake. While crucially important to the client, finding out who may be having an affair with his wife does not qualify as personal liberty. We persuaded the client to come and listen live when we made the call.

Pinging Not Allowed

Cell phones were at the root of another ethical/legal problem we had recently: A wayward husband was doing everything he could to evade service of process, including hiding out with his parents (who pretended never to have heard of anyone with the same name as their son). We knew that the man was still paying his cell phone bill because his message still played when we called it. Our client got a tip that the man was in jail in North Carolina, so we asked an investigator there to visit the three county jails most likely to be housing our man. We came up empty, when the investigator suggested “pinging” the husband's cell phone.

We politely declined, and here is why: “Pinging” (using a cell phone signal to locate the phone itself) is not allowed without a court order. It is not a matter of ethics, but rather federal statutes (The Telecommunications Act of 1996 imposes a duty on carriers to keep customer information confidential, and the Telephone Records and Privacy Protection Act of 2006 specifically applies to cell phone location information).

Many investigators might have friends at the phone company to do the job, but that does not make it legal.

Where Is the Car?

One area of increasing interest that forces us to keep close check on court decisions involves GPS tracking of vehicles. The same technology that allows pinging of cell phones (but restricts it without a court order) allows you to figure out where a particular car is at any time. Clients are increasingly interested in exploring the use of tracking devices. However, consider the following:

• In some states, putting a tracking device on a car is legal if the person placing it shares ownership of the car.
• In others, consent is required of all owners before placing the tracking device on the car.
• But even if you are able to evade criminal charges, you might still run up against a civil suit for invasion of privacy.

We recently talked to a group of investigators who happily slap trackers on cars on a regular basis. They were upset to hear our news that there is a bill pending in the New York State Senate to make it illegal to place GPS trackers on cars, as these are deemed in the bill to be another form of “digital stalking.” The New York Court of Appeals (the state's highest court) recently held that an employer's attaching a GPS device to an employee's car needs no search warrant, but the search must still be reasonable. The U.S. Supreme Court does not speak to the issue when private citizens place the tracking device, but decided that the government needs a warrant to do so (U.S. v. Jones, 132 S. Ct. 949, 565 U.S. ___ (2012)).

What all of this means in a matrimonial context is unclear. I would guess that tracking a car to find a missing child or even to monitor what happens when a child is in the other parent's custody would be OK, but tracking to prove adultery may not be. The bottom line is that to be completely safe, it would be wise never to track a car in a matrimonial context without the permission of the car's title holder. Otherwise, at least be aware of the softening ground on which you may be treading.

Mirroring the Hard Drive

The authority to monitor is also a big issue when it comes to electronic evidence. The best information in a matrimonial case usually comes from inside the marital home in the form of paper receipts left lying around and, increasingly, from the drive of a shared computer.

The word “shared” is key. Spouses are often eager to grab a home computer (or let us in to take a mirror image of the drive when the other spouse is not home). That can be OK, but only if the person giving us access to the computer is authorized to do so. We have begun inserting language into our engagement letter that makes clients warrant that they have authority to view any electronic device they hand us. Grabbing your husband's work computer paid for by his company is not allowed. You could run afoul of the federal Computer Fraud and Abuse Act, originally intended to apply to cases with a compelling federal interest, but now governing ordinary computers and smart phones too.

The issues get tougher. For example, you provide the computer you are authorized to provide, but there appears to be proprietary business information on it ' e.g., marketing strategies for a business the husband operates. Disclosure of these strategies would give his competitors a major advantage. What should you do? Let him know you have the information and risk a lawsuit with alleged damages to his business?

Our normal advice is this: If you have authority to use the computer, take a copy of the hard drive but do not look at it. Bag it and tag it to preserve good chain of custody, and then let a judge decide what you can look at. The judge may tell you that most of the business information is out of bounds but may give you access to the personal information to which you are entitled. It can take longer, but you will almost certainly avoid a professional ethics inquiry if things take a nasty, confrontational turn.

One final bit of advice we give clients: Even if you get access to a password on the computer to which you have access, that does not mean you have permission to tap into a person's e-mail account. Doing so could violate the Stored Communications Act, which forbids the impersonation of another by communicating via the Internet.

Philip Segal is a New York attorney and the founder of Charles Griffin Intelligence, a New York firm specializing in fact investigation for lawyers. He spent 19 years as a journalist with The International Herald Tribune, The Wall Street Journal, The Economist Group, and NBC News, among others. After earning a degree at Yale Law School, he completed his legal studies at the Benjamin Cardozo School of Law, where he taught fact investigation for three years. He can be reached at [email protected].

There are few varieties of litigation more emotionally fraught than an intense matrimonial case. Even if billions are at stake in a real estate dispute, my impression is that clients in a nasty divorce get far more upset than a General Counsel steering the corporate ship through a legal dispute worth thousands or several million more.

Upset clients whose lives are exploding and who are worried not just about money but about children, custody and visitation can and do ask their lawyers to do all sorts of things to gain the upper edge. Some of those things we can do, and others we cannot.

When we tell clients we are unable to attempt a particular course of action, the reason is usually one of professional ethics or illegality.

'You Want Me to Say What?'

Even lawyers who hire us to help them gather facts can get carried away. We were once asked to find out the identity of a woman who was occupying a particular apartment in New York. She had just moved in and thus databases did not yet have her name linked to that address. She lived in a building guarded by an alert and protective doorman, so walking in and reading the lobby board was out of the question.

“Just pretend you're a postal inspector,” said the lawyer who hired us. I was polite about it, but was forced to point out that he had just asked me to break several federal and state laws, as well as to violate both his and my rules of professional ethics. (n.b.: even if I had not been a lawyer, lawyers are not allowed to instruct their agents to violate ethical rules on their behalf!)

While I was pretty sure there is a federal statute about impersonating a postal inspector, I knew for certain that New York has a statute against criminal impersonation. It carries a penalty of up to four years in prison. Consequently, our firm will not impersonate government officials ' or anyone else, for that matter: no pretend journalism, no fake opinion poll or made-up head-hunting firm.

Even if your state has no law against criminal impersonation, it has ethical rules governing lawyers. Making an untrue statement is prohibited in all 50 states, and obtaining information by pretending to be a reporter for The Wall Street Journal or an auditor at Ernst & Young is simply not something an ethical lawyer is permitted to do.

Pretending to be someone you are not is a form of pretexting, and pretexting is behind a lot of illegal activity that touches on the jobs we are asked to do. If we are asked to find out how much money someone has in their bank account, to get someone's cell phone records or medical records, our response is usually the same: If you get that information by pretending to be the holder of the account or the person whose medical records you are going after '

'That's illegal'

Most of our clients do not want to break the law, but I am sure the occasional person who does not call us back after such a conversation is able to find an investigator willing to break the rules. They may be able to fool Verizon or Bank of America into coughing up information that ought to remain private. But it is not worth the risk if they get caught and and become subject to professional discipline or are prosecuted.

'This Is a Recording'

Sometimes, even when an action appears to be legal, the facts can alter the situation. You then throw in ethical restrictions, and what was previously a clear-cut picture becomes murky. A case in point involves recording phone calls. Many lawyers know that state law is divided into two groups with regard to recording phone calls. In the “one-party” states, just one of the two parties on a phone call needs to be aware that recording is happening. In “two-party states,” both parties on the call need to be aware.

We had a client who wanted us to find out the identity of a man with a particular cell phone number. Based on some of the man's responses when we called him, we had a fairly good idea of who he was, but the client wanted greater certainty. He asked us to record the phone call.

Since we and the phone holder were both in one-party states, there should have been no problem, correct? Not so quickly. We found that the suspected subscriber to the cell phone had a weekend house in a two-party state. What happens if you call a number and the call is received in a different jurisdiction (in this case, a two-party state?) The state where the call is received is the one that governs.

Furthermore, even if a taped call is legal, it may not be ethical. Many U.S. courts have expressed skepticism or downright hostility to the idea of lawyers taping phone calls. In New York, where we operate, the bar has tended to bless recorded phone calls only when personal liberty is at stake. While crucially important to the client, finding out who may be having an affair with his wife does not qualify as personal liberty. We persuaded the client to come and listen live when we made the call.

Pinging Not Allowed

Cell phones were at the root of another ethical/legal problem we had recently: A wayward husband was doing everything he could to evade service of process, including hiding out with his parents (who pretended never to have heard of anyone with the same name as their son). We knew that the man was still paying his cell phone bill because his message still played when we called it. Our client got a tip that the man was in jail in North Carolina, so we asked an investigator there to visit the three county jails most likely to be housing our man. We came up empty, when the investigator suggested “pinging” the husband's cell phone.

We politely declined, and here is why: “Pinging” (using a cell phone signal to locate the phone itself) is not allowed without a court order. It is not a matter of ethics, but rather federal statutes (The Telecommunications Act of 1996 imposes a duty on carriers to keep customer information confidential, and the Telephone Records and Privacy Protection Act of 2006 specifically applies to cell phone location information).

Many investigators might have friends at the phone company to do the job, but that does not make it legal.

Where Is the Car?

One area of increasing interest that forces us to keep close check on court decisions involves GPS tracking of vehicles. The same technology that allows pinging of cell phones (but restricts it without a court order) allows you to figure out where a particular car is at any time. Clients are increasingly interested in exploring the use of tracking devices. However, consider the following:

• In some states, putting a tracking device on a car is legal if the person placing it shares ownership of the car.
• In others, consent is required of all owners before placing the tracking device on the car.
• But even if you are able to evade criminal charges, you might still run up against a civil suit for invasion of privacy.

We recently talked to a group of investigators who happily slap trackers on cars on a regular basis. They were upset to hear our news that there is a bill pending in the New York State Senate to make it illegal to place GPS trackers on cars, as these are deemed in the bill to be another form of “digital stalking.” The New York Court of Appeals (the state's highest court) recently held that an employer's attaching a GPS device to an employee's car needs no search warrant, but the search must still be reasonable. The U.S. Supreme Court does not speak to the issue when private citizens place the tracking device, but decided that the government needs a warrant to do so ( U.S. v. Jones , 132 S. Ct. 949, 565 U.S. ___ (2012)).

What all of this means in a matrimonial context is unclear. I would guess that tracking a car to find a missing child or even to monitor what happens when a child is in the other parent's custody would be OK, but tracking to prove adultery may not be. The bottom line is that to be completely safe, it would be wise never to track a car in a matrimonial context without the permission of the car's title holder. Otherwise, at least be aware of the softening ground on which you may be treading.

Mirroring the Hard Drive

The authority to monitor is also a big issue when it comes to electronic evidence. The best information in a matrimonial case usually comes from inside the marital home in the form of paper receipts left lying around and, increasingly, from the drive of a shared computer.

The word “shared” is key. Spouses are often eager to grab a home computer (or let us in to take a mirror image of the drive when the other spouse is not home). That can be OK, but only if the person giving us access to the computer is authorized to do so. We have begun inserting language into our engagement letter that makes clients warrant that they have authority to view any electronic device they hand us. Grabbing your husband's work computer paid for by his company is not allowed. You could run afoul of the federal Computer Fraud and Abuse Act, originally intended to apply to cases with a compelling federal interest, but now governing ordinary computers and smart phones too.

The issues get tougher. For example, you provide the computer you are authorized to provide, but there appears to be proprietary business information on it ' e.g., marketing strategies for a business the husband operates. Disclosure of these strategies would give his competitors a major advantage. What should you do? Let him know you have the information and risk a lawsuit with alleged damages to his business?

Our normal advice is this: If you have authority to use the computer, take a copy of the hard drive but do not look at it. Bag it and tag it to preserve good chain of custody, and then let a judge decide what you can look at. The judge may tell you that most of the business information is out of bounds but may give you access to the personal information to which you are entitled. It can take longer, but you will almost certainly avoid a professional ethics inquiry if things take a nasty, confrontational turn.

One final bit of advice we give clients: Even if you get access to a password on the computer to which you have access, that does not mean you have permission to tap into a person's e-mail account. Doing so could violate the Stored Communications Act, which forbids the impersonation of another by communicating via the Internet.

Philip Segal is a New York attorney and the founder of Charles Griffin Intelligence, a New York firm specializing in fact investigation for lawyers. He spent 19 years as a journalist with The International Herald Tribune, The Wall Street Journal, The Economist Group, and NBC News, among others. After earning a degree at Yale Law School, he completed his legal studies at the Benjamin Cardozo School of Law, where he taught fact investigation for three years. He can be reached at [email protected].