Pretext Privacy & Private Investigators (Full Version)
Copyright – Kevin D. Bousquet
If you are feeling the pain of trying to collect on a debt, a child support order or a court ordered monetary award, your problems are about to get worse.
If you are trying to locate a missing friend, family member or a birth parent in an adoption situation, or trying to find that person who skipped out owing you money, it’s about to get even harder.
If you have been a victim of fraud or crime, or are in a business that needs to be protected from crime, such as theft or fraud, you had better put on your suit of amour; it’s going to become a bigger battle than you ever anticipated.
If you are charged with a criminal offence, or have been wrongfully convicted, it may surprise you to know that those in your defense team are gradually having their tools taken away from them.
Maybe your biggest concern is that your monthly insurance premiums are increasing every year to the point of running out of control.
Welcome to the introduction of Bill C-299, which is seeking to ban the method of pretext (or false pretence) and/or deception used by private investigators and other related industries.
Alberta Conservative James Rajotte seeks to make amendments to the Criminal Code as it relates to pretext (or false pretence) with his Bill C-299. If passed, the bill would make it illegal to obtain, or counsel others to obtain personal information on false pretence, “or” by fraud or to sell or disclose such information obtained by similar means.
Also added to the criminal offence of “personation with intent,” is fraudulent impersonation with intent to obtain any record containing personal information about a third party.
The private sector and in particular Private Investigators do not pretext for a “fraudulent means.” They do, in fact, pretext for a lawful means, as they are allowed to do so in the acts and regulations that govern them. Rajotte’s bill also seeks to make amendments to the Competition Act and most importantly the Canada Evidence Act. This would ensure that any evidence obtained by false pretence would be not admissible in court.
Joe L. Lai, an associate in the Business Law Department of the Toronto law firm, Fraser Milner Casgrain, wrote an article to Lawyers Weekly about Bill C-299 in November 2006. In his article he stated that pretexting could be regarded as being “morally offensive,” and confirmed that buyers of personal information include law firms, financial institutions, collection agencies, private investigation firms and research companies.
His interpretation is that the Bill speaks to Canada’s perception of pretexting as morally blameworthy and offensive to the public and societal sensibilities, thus requiring either deterrence or compensation for victims.
One would wonder if Mr. Lai has ever himself been a victim – a victim of crime, or of being unable to collect a debt, a judgment, or a child support order? Does he know the frustration of being wrongfully charged or accused, and being unable to find or subpoena a sensitive witness, because the subpoena can not be served discreetly without the use of lawful pretext. Will the clients of his law firm and the legal community ultimately feel the same frustrations?
The concerns over pretext and private investigators stem from a recent Hewlett Packard scandal in the U.S., which continues to cause controversy. In order to determine the source of information leaks which were finding their way to the media, Hewlett Packard hired private investigators to obtain confidential information on journalists, and employees and board members in their company.
One of the most controversial issues in this case is the use of pretext and impersonation to obtain the phone records and calling data of various people suspected of the board room leaks.
The private investigators have been indicted on felony counts of identity theft, conspiracy, unlawfully accessing computer data, and fraudulently obtaining phone records. All of them are now facing penalties that could involve imprisonment.
The backwash from this scandal has now found its way into Canada in the form of Bill C-299. The bill, if passed, will make any evidence that was obtained by pretext inadmissible in court. The passing of the pretext bill in its current form could cause civil unrest to the point that everyone will feel its effects – not just private investigators, but all those in the private sector who fight crime and collect our debts. Even the media could be affected. The general public will discover a justice system and due process that will fail them.
With respect to the HP Scandal it might be asked, what lawful methods could have been used by Hewlett Packard to investigate their boardroom leaks? Was it possible for the company to involve a law enforcement authority to investigate suspected leaks? What methods or laws are in place that would allow directors of public companies to find the source of their information leaks — leaks that affect the price of stock and could ultimately lead to insider trading, thus prejudicing innocent public shareholders?
Can owners of public companies quickly apply for court orders to obtain confidential information on individuals who are suspected of leaks? The answer is no at least not quickly. Was there a legal avenue in place to obtain these phone records?
While the world points fingers at the scandal, no one has yet reported on how this situation could have been solved and the scandal avoided.
The law, as it relates to impersonation being used by private investigators, appears to be very confusing. Many lawyers who blog on the internet argue that it will be difficult to demonstrate criminal intent and actually convict Pi’s in court in the U.S.
What is Pretext and How is it Used Today?
Public law enforcement agencies use pretext or deception every single day to catch criminals. Working undercover posing as someone they are not, making phone calls to the homes of suspect of criminals, pretending to deliver a package so they can determine if an accused person is at home, so that a warrant can be executed, setting up sting operations where a police officer poses as someone other then a police officer. Public records speak of the RCMP going through a suspect’s garbage, without a warrant, leading to the arrest of criminals.
Pretext, deception and trickery are essential tools used in law enforcement. What would happen if pretext, deception and undercover operations became illegal in public law enforcement?
Suppose an undercover police officer called the residence of a suspected criminal, pretending he was a friend of a suspect, or perhaps saying he was with a delivery company trying to deliver a parcel? As a result of that pretext, he could perhaps obtain a personal cell phone number and other information about the wanted criminal, with the intent of eventually making an arrest based on the information he obtained.
What would happen if the above situation was regarded as an illegal pretext – because the officer used a pretext on someone to get the information he needed? The result would be that the criminal could not be arrested, charged or convicted because pretext was considered illegal and not admissible in a court.
If we were to imagine a world where public law enforcement could not use pretext, trickery, disguises, undercover or deception, it would be a world of crime and chaos out of control. All aspects of our safety could be jeopardized. And what about the private sector using pretext? Private investigators, bill collectors, private bailiffs all use these methods to obtain the information they need.
There is a huge difference between using impersonation and pretext. Yet the scandal has caused law makers and regulators to blend the two into legislation.
Paparazzi vs Ethical Journalism
Any journalist who has ever investigated consumer fraud has probably, in one form or another, used pretext or deception to obtain information. Journalists and the media have been known to use pretext, trickery or even to set up sting operations to catch would be criminals. And what about the recent NBC sting operations to catch pedophiles via chat rooms, setting up a woman to pose as an under-aged girl? Should those pedophiles be set free because they were caught under a lie or a pretext?
For years the paparazzi in Canada and the United States have been vicious in their tactics to obtain any dirt that will sell on celebrities. Going though garbage, surveillance, illegal trespass and telephone taps are just of the few tactics we read how they invade privacy everyday. Yet the closest thing to a scandal has been an investigation where it was suggested that the death of Princess Diana might have been caused by the paparazzi.
We watch news reports where reporters and journalists work undercover posing as a customer trying to buy a gun off the street, or a stolen car, or maybe to catch a car salesman known for rolling back mileage odometers on used cars. They lie and say they are someone else. They try and catch the person doing something wrong, under a sting, ruse or a pretext and report it to the public.
Like the mainstream media there are ethical members and there are unethical members who do not follow laws or have any code of ethic. Every profession has their bad apples.
We watch U.S. reality TV shows like the “The Dog” a licensed Bounty Hunter in the United States. While at his office he calls a fugitive’s home saying they have won a brand new vacuum cleaner asking where it should be delivered to.
As a result of his lie (or pretext) he obtains personal information like a phone number and later apprehends the fugitive he was looking for. While we do not have Bounty Hunters in Canada they are part of the “private sector” in the United States. What would happen if the arrest was considered unlawful as a result of illegal pretext or deception? Could the fugitive be set free?
While most Private investigators in Canada would not condone impersonation as means to obtain information, they would very likely condone the use of lawful pretext because their governing legislation allows them to use it.
Private investigators have been using pretext and deception to catch criminals right back to the days of Sherlock Holmes. Disguises, deception, trickery and lawful pretext have always been common and essential methods of investigation. It’s not just Private investigators who use pretext as an important tool, but also process servers, who serve documents of the court.
Private bailiffs and collectors make pretext telephone calls at the homes of debtors, to obtain work phone numbers in order to recover vehicles and equipment. These pretexts usually have the objective of trying to find out a person’s personal information such as a phone number, a work number or a place of employment. It could be to serve a document, collect a debt, recover property, enforce a court order or judgment.
A Private investigator or Process Server might call your house saying they are a delivery company, an old friend or employer, they may act as a marketing survey company all trying to get personal information. A few days later you’re served with legal papers (such as a divorce petition, a support order, or a law suit). You may find that your vehicle that you owed payments on was seized right out of the parking lot of your home or your place of work. All as a result of the personal information you gave away under some form of trickery or pretext.
Pretext in the private sector is now under scrutiny to the point that any kind of pretext or deception whatsoever could be come completely illegal and not admissible in court.
Pretext, Impersonation & The Law
In most Provinces and States, licensed private investigators have been allowed to use lawful pretext, and the bodies of government that regulate private investigators are perfectly aware that lawful pretext is in a part of the practice. We know this because laws or regulations continue to exist that specifically govern how private investigators may use pretext.
For example, a private investigator is not allowed to represent him or herself as a licensed profession, policeman, fireman, ambulance attendant, government worker, etc,. The fact that pretext is regulated is a clear indication that governments of the world recognize that pretext exists and is allowed to be used lawfully. It is an essential tool for investigation.
To ask why we need Private investigators when we have the police is the same as asking why we need private security guards, private bailiffs, collectors, and insurance adjusters. Without them our protection would be compromised to the point that crime would run rampant. We would be unable to properly complete various processes in our judicial system, be it civil or criminal, without the private sector.
The public needs to be reminded that there many parts of the civil and criminal justice system as it relates to due process that are the responsibility of the private sector. It is either the responsibilty of the private sector or simply areas where police and/or public law enforcement do not normally get involved.
In order to adequately determine what a private investigator does, the public first has to have remove the PI stereotype that PI’s battle everyday.
The most common stereotype is that private investigators are one or two-man operations doing nothing but infidelity divorce investigations, and following cheating spouses. With the changed divorce laws, there is no longer a requirement to prove adultery.
The public needs to be aware that this area of investigation is very small and has only been specialized by a small percentage of investigation firms.
Fraud is completely out of control to the point that most fraud units, be it municipal provincial or federal, are backlogged, some as much as a year. Victims of fraud in all aspects have felt the frustrations of trying to catch, prosecute and collect their losses from the criminals who have victimized them.
There are more in the private sector fighting fraud then in public policing. Certainly in the city of Toronto, for example, there are more private investigators (and in-house bank and insurance fraud units) then the combined staff of the Toronto Police Fraud Unit and their Major Crime Units.
Information Brokers vs Licensed PIs
People need to be reminded that there is a difference between unlicensed Information brokers who sell searches without any questions asked, than licensed PI agencies. It is unregulated information brokers that are destroying private sector and causing governments to close the door on lawful access to information.
PI’s are licensed by government bodies. They have independent acts and regulations which govern what they can and can not do. They face fines or imprisonment for violating any legislation. It is a regulated profession. In most states and provinces the legislation is enforced by the police.
A large number of private investigators are, in fact, themselves ex-police officers or ex-law enforcement of some kind. In Canada, this includes retired and ex-members of the Provincial Police forces, the RCMP and Municipal forces.
Upon his retirement, William J. McCormack, one of Toronto’s most highly respected Toronto Police Chiefs, formed an alliance as ‘senior consultant and advisor’ to MKD International, a Toronto private investigation and security firm.
The biggest client of the private Investigation profession is the insurance industry who continue to lose the battle on insurance fraud. Billions of dollars are spent by insurance companies hiring private investigators who conduct insurance fraud investigations. Virtually all insurance companies have claim departments that are currently hiring private Investigation firms. This includes all aspects of insurance: automotive, casualty, disability, corporate liability, property, marine, and surety, just to name a few.
If you were to spend a ‘day in the life’ with the majority of investigation firms in North America, it would be instantly discovered that 60% or more of investigation firms are working for insurance companies, and/or their legal counsel, fighting fraud. This also includes claims relating to mortgage and bank fraud.
The remaining percentage includes banks, trust companies and finance companies who hire PI’s in relation to fraud and collection. The legal community, (both criminal and civil) who seek litigation support, use private investigators in almost every area of law. Lawyers, insurance adjusters and their claim departments would agree that private investigators are an important part of the process when it comes to investigating insurance fraud, or claim investigation and inquires in general.
When Canada initially drafted its privacy legislation, The Personal Information Protection and Electronic Documents Act (PIPEDA), it initially left behind a number of organizations in the private sector, and did not give them “Investigative Body Status”. It was initially interpreted that anyone who did not have “Investigative Body Status” could not investigate someone without their consent.
This interpretation included private investigators and insurance adjusters. Imagine a private investigator doing an insurance disability investigation for an insurance company that suspected one of their claimants was faking an injury. The legislation, in its initial stages, could have been interpreted to state that the private investigator must ask the claimant’s permission to investigate, follow and video tape the cheating claimant.
It’s possible the PI would have had to disclose the report to the person investigated, if requested. Even insurance adjusters were affected. Imagine an insurance adjuster doing a suspicious fire investigation not being able to investigate a suspect, unless he told the suspect in advance and asked his permission to investigate him, and then later having to reveal his report to the suspect, if asked.
Thousands of dollars were spent by various associations to amend the legislation to give private investigators and other bodies “Investigative Body Status.” In the spring of 2004, various investigative and insurance associations successfully managed to get changes in the legislation. Licensed Private investigators who were good standing members of professional PI associations were allowed to investigate without consent and not disclose their reports, with various exceptions.
While all of the exceptions can be listed by viewing a copy PPIEDA, in layman’s terms the most important ones were:
To collect a debt
Investigating a Breech of an Agreement or Contravention of Law
To comply with a subpoena or warrant issued or an order of the court
Working on behalf of a lawyer
In order to understand the importance of the Private Investigation industry, here are some examples of the work conducted by PIs. These are areas that are primarly conducted by PI’s or the private sector. Also listed below are also some of the problems with the current privacy legislation, and the up-coming proposed pretext legislation:
Since the very beginning, private investigators have been used not only to find birth parents but to reunite families. PPIEDA has (neglected, failed or properly defined) to allow an adoption investigation as an exception. One could easily conclude that adoption investigation (trying to find birth parents, missing family members etc.,) is an invasion privacy and a violation of the act. PI’s use pretext as means to prevent alerting other family members, during a search for birth parents. For example, a PI might pretext saying he is completing a family tree or a missing heir inquiry. Pretext legislation could make it difficult for PI’s to locate family members discreetly for their clients.
Corporations hire private investigation firms to conduct pre-employment background investigation. Private investigators are not allowed to report on a person’s criminal background without consent. To obtain this information from police source without consent would be illegal.
There is continued controversy as to whether an employer is even allowed to ask for a criminal record check. Certainly, if an employer suspects he has a criminal working for him, it is unlawful to conduct a criminal search after the criminal employee has been hired without consent.
Articles have been written which say that we may see the day when employers are no longer allowed to ask for Social Insurance or Social Security Numbers.
Millions of individuals have child support orders they can’t collect. Their failure to collect on these orders is primarily as result of the debtor not having assets in his/her name. The debtors may work for cash in a cash profession; they drive with a suspended license, and they don’t have a bank account in their name. They are, from a collection stand-point, untouchable.
Trying to find collectable assets is an investigative task. How can we collect from a person who is working for cash as part of the underground economy? A private investigator hired by a recipient might use a very expensive surveillance, following an individual into work – which can cost a single parent upwards of $65.00 an hour and $0.65 per kilometer, with average retainer requests usually in the thousands of dollars.
Alternatively, a private investigator, under pretext, might call the residence of a dead-beat parent (or someone who knows the dead-beat parent). The pretext might be that of doing a marketing survey, trying to get a work telephone number.
Once the work phone number is obtained, inexpensive inquiries can be made to confirm the place of employment in which the client can then contact the family responsibility office to issue garnishments. In less than an hour of pretext phone calls, a private investigator can inexpensively obtain the employment information of a dead beat parent.
The current pretext proposals would define obtaining a work or home phone number as being a pretext to get “personal information” or in this case the place of employment. The way the information was obtained would be considered illegal and inadmissible in any family court proceeding. A garnishment could easily be appealed. This would leave only the method of expensive surveillance to investigate those working in a cash profession, as there is no public search that would identify this type of information.
Corporations hire private investigators
Corporations hire PIs on a regular basis to investigate theft, employee issues, collection, white collar crime, insider trading etc., PI’s often conduct background or due diligence investigations to ensure deals are safe and without surprises before they close.
Copyright, Trademark Industrial Design
It is a matter of media public record that major corporations like Gucci, Cartier, Rolex and Walt Disney have hired PIs to investigate infractions of their trademark, either directly or through their legal counsel. PIs investigate unauthorized manufacturers and distributors who unlawfully manufacture, sell and distribute these products.
With the technological sophistication of scanners and photocopiers, virtually all industries can find themselves victims of piracy in some form.
To investigate the culprits, private investigators will use trickery such as posing as a potential customer and video taping suspects. They may make pretext calls to the homes of suspects, trying to find work numbers as to where illegal items might be manufactured or distributed. PIs then work with court bailiffs to enforce orders and seize property.
Criminal Defense & The Wrongfully Accused
Someone charged with a criminal offense may require a PI to track down witnesses, take a statements, or set up a sting operation to add other accused persons to the criminal matter. Defense lawyers hire private investigators constantly to aid in defense trials.
Defense investigations very often involve pretext in tracking down witnesses who themselves may be criminals, or by video taping, and sting operations. There are many documented cases where PIs have been the only salvation of a wrongfully accused person.
Debt Collection Skip Tracing & Recovery of Assets
PIs use pretext and databases to find witnesses, parties to litigation and missing debtors. Banks, trust companies, lawyers and insurance companies hire PIs to collect debts, serve documents and to aid in executing judgments. Recipients who have child support orders use PIs to find where would be payers live and work. Collection agencies also have in-house skip tracers to find debtors who owe money on behalf of banks and other entities. Pretext is almost mandatory in this type of investigation.
A PI might call a home of a debtor in attempts to obtain an alternative home number or a work number. The PI might pose over the phone as a sale person or attempt to conduct some form of a question and answer survey. This is done to obtain personal information so creditors and other parties can complete there litigation process. Without pretext in this area of investigation finding individuals would be non existent.
Private investigators are retained on behalf of retail head offices to pose as a customer at retail outlets. The private investigator goes into the retail outlet and purchases two items of clothing with the exact same price. The private investigator then watches the employee to see if both items are accurately processed through the cash register. This could also involve wearing a hidden video camera or even installing a hidden video camera in a discreet place in a retail outlet.
A similar form of deception is used owners of bar, and night clubs who hire PIs to to monitor their bar tenders to see if all drink orders are being purchased through the cash register. A PI will pose as a customer and continually watch the transactions processes or not processed the cash register.
While the insurance community continues to be the biggest client to Private investigators they are in fact loosing the battle of insurance fraud. This loosing battle is one of the main reason consumers continue to find their monthly premiums increasing at alarming rates every year.
While PIs are involved in all aspect of insurance investigation they are most commonly involved in doing surveillance video taping on would be cheaters. Insurance claimant’s who are represented by a lawyers are already well protected under other legislation that would prohibit any PI (or any third party for that matter) of contacting the claimant at home or at work without their lawyer present.
Pretext and or trickery in insurance claim investigation is almost non existent. However video taping cheating claimants continues to be a sensitive and controversial topic. Privacy advocates continue to fight that a residence should include the front and backyards as it has been legislated in many parts of the world. This is known as “the residence or any part there of” issue. If changed a private investigator sitting on surveillance watching a cheating claimant’s home will be refrained from video taping any movement if the claimant is in his backyard or front yard for example.
So if while on surveillance a PI observed a claimant faking an injury jumping on a trampoline with his children on the front lawn of his home the video tape will be in admissible. The PI could find himself in charged, fined or imprisoned jail for taking the video no matter how obvious. This would also make it difficult for PI’s who investigate claimants who my be working from home. A claimant for example who is fixing cars in his driveway for cash movingand bending and not reporting the income. All of these observations at a household will soon be illegal and inadmissible.
It’s believed that the legislation change will be right around the corner. While PIs are allowed to follow and video tape claimants who are suspected of faking their injuries, there has been a case before that went before Privacy Commissioner where an employer suspected an employee of faking an injury and being unlawfully on benefits. When the PI confirmed the employee was faking benefits by way of video taping the employee complained it was a violation of privacy. While the evidence held and the PI was not reprimanded it was recommend at the hearing that surveillance only be conducted “as a last resort”. It should only be contemplated if all other avenues of collecting personal information have been exhausted. The decision to undertake video surveillance should be made at a very senior level of the organization.
Any seasoned insurance investigator would agree with the recommendations but most would argue what personal information is there that can be obtained when the doors to obtain personal information are closing. How can we observe movements if we can’t follow?
Missing Persons & Children
Private investigators have been instrumental in finding our missing children. Many child abduction cases involve the parent who does not have formal custody kidnapping the child. Child abduction cases involve finding the parent who has abducted the child. This involves a great deal of pretext where a Private investigator will concentrate on finding other family members who under the right pretext might give up the new home phone number, cell phone or work phone number of the parent who abducted the child.
The PI might call up family members saying he is a potential employer checking references, sending a parcel etc… Many are unaware that a great deal of tracking down our missing children is conducted via phone inquiry and via lawful pretext. It is expect that a parent who has abducted child will not have his or her name in any published phone book or anything that might be a part of public record. It will be other family members and friends what will lead to the address of the parent who has abducted the child.
Private investigators are hired by industry to work undercover. They pose as one of the employees and report to management on internal and theft, drugs, just to name a few. Questions about pretext and deception would arise as to if a PI is working undercover if he or she is in fact violating privacy or pretext laws.
Private investigators have been investigating the underground economy from the very beginning. People work in the underground economy for many reasons, to evade taxes, creditors, child support, or mostly commonly are simply involved in crime and being paid in cash.
Virtually the only way to show that a person wakes up every morning and goes to work at a job for cash is to have them followed. The controversy of surveillance and video taping continues.
The PI might alternatively make pretext inquiries with the suspect or family members to obtain a work number where the person might be working. There are number of lawful pretexts that can be conducted by PIs to try to bring out a work number with family, friends or relatives.
The are a number of PI agencies that specialize in vehicle theft investigations on behalf of banks, finance companies and private bailiffs. PIs continue to be instrumental in not only finding stolen vehicles but identifying theft rings that usually involve organized crime. Many insurance companies have in house theft investigators that are working in the private sector most of them are ex-police officers.
The Back Fire of Privacy Legislation
If you’re a law abiding citizen, paying your debts and taxes this is a great piece of legislation. But the backfire of the legislation is protecting our criminals and debtors. Private investigators and the private sector require access to government services and private services that hold confidential information on people and companies. Important tools like access to driver’s record information, access to the computerized land registrary system, the use of the credit bureau in judgment debtor and collection situations just to name a few.
But the legislation continues to backfire. The public is in panic over crimes like impersonation, bank fraud, mortgage fraud and insurance fraud all things the private sector investigates every single day. They are the answer to the problem not the cause. All of the tools that hold personal data are needed to investigate but are slowly cutting off the private sector slowly over time.
In Provinces like Quebec and Alberta, PI’s have no access to government motor vehicle information. They can’t even run a license plate to follow an insurance claimant or a driver’s record to see previous driving infractions.
How are we expected to do insurance claim investigation if there is no access to vehicle or driver information? How is a PI supposed to help a person enforce a judgment or child support order when for the most part credit bureaus make it virtually impossible for PIs to have access even if they have a certified copy of a Judgment or Support Order? The credit bureaus are already under scrutiny by the media because of impersonation and credit card fraud concerns.
Mortgage Fraud is out of control rest assure it will be a matter of time before the computerized land registry system will panic and close to the private sector. It will only be lawyers and real estate agents who will be allowed access. How do we then conduct mortgage fraud investigations when we can’t even do a title search on suspects that might own other properties?
The newest growing scam which is similar to mortgage fraud is where fraudsters register a loan on your vehicle and skips out with the money. Someone who owns a luxury car for example wakes up one morning and finds their vehicle has be seized because a fraudster registered a loan against the vehicle and absconded with the money. The bank bailiff then seizes the vehicle right in your driveway.
Insurance companies are going crazy with this new scam and many don’t even understand how it the scam works. All they know is that claims are coming out of the woodwork.
While the police are involved in investigating these crimes so is the private sector. In order to investigate this crime the private sector needs continued access to both the Driver Record information and the Personal Property Security Registration system. PI’s in Ontario have been fortunate to have continued access driver vehicle information but this crime is a Canada wide problem and access is required in every Province not just a few.
Many in the private sector are convinced these bodies of information will also panic and again cut off them off. It is the private sector that investigates these crimes on behalf of banks, insurance companies and their legal counsel.
There are not enough police in the world to combat this problem. The information bodies continue to panic because of privacy concerns and then close the door on the very industry that help to resolve to the problem.
Legal Community Already In Trouble
The legal is community is in big trouble they just haven’t realized it yet. Sooner or later would be Plaintiffs and the general public are going to realize that when they sue in court attempting to recover their losses even if they win their case if defendant simply refuses to pay there is every likelihood their court ordered judgment or monetary award could be nothing more then a worthless piece of paper.
Millions of people have judgments, court orders, child support orders or even criminal compensation awards that are completely worthless and may never be collected. The public continues to be under the illusion that when they win these awards that if the defendant (now called the debtor) refuses to pay that the person will be thrown in jail. It doesn’t work that way. You’re essentially on your own trying to collect it.
While costly lawyers can sometimes help trying to collect on these awards it is without any doubt an “investigative mission” to discover assets not a legal one. If you’re trying to enforce your award you’re on your own trying to find a bank account, employment, or non leased/financed vehicle so you can collect your money. All the doors to find this type of information are closing fast in the name of privacy and this includes law firms.
How is anyone expected to find not only the bank account on a person but the actual branch so a garnishment can be issued? Even then there is virtually no way of discovering if there is money in the account before you spend the money on legals to complete the garnishment.
Sometimes a credit bureau search can give leads but this door is already closed on some agencies. Don’t look to the banks to give up confidential information on their customers. The banks continue to have tightened their reigns because of fraud concerns. Depending on the Province where you live you might be able to do a vehicle search to find vehicles in a person’s name. A lien search also has to be conducted to make sure there are no liens on the vehicle so it can be seized. It’s just around the corner that access to these doors will be closed if not completely.
If Private investigators are not allowed to use pretext to obtain personal information such as a home address or employment how do we find employment on our debtors? A credit bureau search might help if access is available.
What if the person is a participant in the underground economy working at a job for cash? The only way this can be found out is via a pretext call (trying to get a work number from someone at the household) or to follow the person into work at expensive surveillance rates. There is no other way in the world to know where a person is working under the table then to follow them.
If PI’s are allowed to use expensive surveillance to follow debtors into to work this is costly and will create more controversial privacy concerns.
Lawyers will argue in this article that they can perform expensive judgment debtor examinations where debtors are compelled to come into an examination and reveal their assets under oath. If the debtor fails to show up the debtor can be committed to jail. Very often debtors who have been ordered into examinations do nothing more then lie and cover their tracks either before or after the examination.
While a debtor can be committed to jail for not attending the examination the public needs to know that the debtor is in fact being committed to jail for failing to comply with the order to attend. It has nothing to do with not paying. The process which is known as Warrant of Committal is not a collection process it’s a punishment process for not showing up to the examination when ordered. It still may not lead to any money beig collected.
Our monetary awards in our court system continue to become worthless pieces of paper.
Recipients continue to feel the pain trying to find their defendant/debtors and collect. There is simply one road block after the other being unable investigate the assets of debtors.
Legal clients continue to spend thousands into our court system walking away with an expensive legal bill and a monetary award they can’t collect. The public will continue to loose faith in lawyers and a justice system that continues to fail them.
The televised O.J. Simpson case is a classic example. These civil plaintiffs who have won their judgment against Simpson continue to chase him with one road block after the next.
For every door that is closed the must be an opening to obtain information via lawful means. Policies have to be in place that allow for sensitive data to be released for people who have judgments, payment orders or third parties that are working under the direction of a lawyer or insurance company.
For example if someone has a judgment or has a support order that individual should be able to retain a collection agency, PI Firm, lawyer or a Forensic Accountant to be able to conduct a credit search on the debtor that might give leads for bank accounts and employment. The credit bureaus cold require that they must be provided with a certified copy of the judgment or the order before the search is conducted. If a PI has retainer letter from an insurance company or a lawyer they should be able to do a motor vehicle search or a driver’s record search in any Province without restriction.
Those who hold government or private record data can enter into “authorized requestor contracts” with the private sector. Companies who have satisfied that they require the personal data for a lawful purpose. The credit bureaus for example have established such contracts with some industries (like collection agencies for example) but many industries are not allowed access.
As part of the contract process surprise audits could be conducted to confirm the data is being used pursuant to the contract. Motor vehicle record departments have such a contract process but many Provinces and States are closed to the private sector regardless of the reason.
Pretext should be regulated allowing for the private sector to obtain basic details like names, addresses, employment and a phone number in aid of investigating a crime or collecting a debt. One should not be allowed to impersonate a person or company.
Legislation is already in place to protect telephone calling data concerns as in the HP Scandal.
How do we expect a single mother of three starving for child support to find the bank account bank branch on the father of her children that just refuses to pay? Would we ever see the day that a judgment or a support order could just be served at the head office of a major bank? Would bank head offices when provided with a garnishment search our their branches for accounts and register the garnishment for us? The banks would appose any attempt by parliament to implement such a strategy.
What are the legal options then? Does the information system go underground? Do we move to a police state. Would the example of our mother of three have to befriend a bank teller to give her the information illegally?
The doors are closing rapidly all in the name of privacy. With no consideration or exceptions for those who fight fraud, collect our debts, our child support or catch our criminals.
Who will find are missing birth parents are family members? How we investigate lies, infidelity? Who will find our witnesses, missing children, birth parents are missing vehicles and/or stolen property? Who will be allowed to investigate for defense and the wrongfully convicted? The continued and growing restrictions will affect every person either now or in the future right across the globe.
A Percentage of Crime Not Investigated by Police
There are certain areas of crime fighting that are exclusively in the hands of the private sector or the private sector has a bigger role in the investigation and apprehension.
This percentage of crime is where government and/or public law enforcement have decided it is best (or makes more economical financial sense) for the police not to be involved full time.
Things like retail theft, casino fraud, insurance fraud, bank fraud, copyright and trademark fraud just to name a few.
These crimes are INVESTIGATED by the private sector but are ultimately REPORTED to police.
An example would be private sector employees working in a fraud unit in a bank or a special investigative unit in an insurance company. These departments do their own investigation then report the crimes to police.
If the doors continue to close on the private sector there will be certain crimes in our justice system which will run out of control simply because the police don’t investigate and the private sector can’t because of legislation and limited access to information.
It is a world wide fact that law enforcment is loosing the battle on fraud on regardless of where you live in the world. It has nothing to do with poor policing or penalties. They are simply out numbered and will continue to be with computerization.
This is why the only fraud programs that are working are proactive prevention programs (stoping the fraud before it can happen) not enforcement and punishment. Many experts on fraud would argue that policng and punishment are no longer a deterient to this crime. Would be criminals jump at the chance to defraud for a million and go to jail for less then a year. Fraud has become a lecurtive business opportunity that can be conducted on a world wide scale.
What Can We Expect
Banks will increase insurance rates going into loans, knowing perfectly well there is a poor likelihood of collection if their customer defaults or defrauds them. Underwriters of insurance policies and their actuaries will take into account the investigative restrictions when they write insurance policies. Insurance premiums will increase out of control to the point that only the wealthy will be able to afford insurance.
All aspects of insurance will be affected not just popular automotive and injury policies. With the increase premiums we can expect to find more individuals without insurance once again making it more difficult for victims to collect their losses either via insurance or through the courts.
Defense Lawyers and accused persons who retain PI’s will be restricted to what PI’s can and can’t do in aiding a defense Investigation. Defense lawyers will maintain their accused clients are in a disadvantage and will ask judges to throw matters out and set their clients free.
Certainly with the new pretext legislation we can expect that Crown Attorneys will see Defense lawyers file motion after motion requesting the courts set their clients free as a result of a pretext being used.
Are we to believe that public law enforcement by itself will be able to tackle the civil unrest after the have the doors are closed on the private sector? Police forces and their specialized crime units are statistically backlogged out of control.
Privacy advocates will continue to applaud privacy legislation and will no doubt support pretext legislation. But will they will support the legislation when they themselves have have been personally victimized by crime, wrongfully convicted, or discover the impossibilities of trying to collect a debt, judgment or child support order.
What submissions or ideas do the privacy advocates have that will allow the public and/or victims to obtain personal information when it relates to due process in our justice system?
Fraud is the worst it has been in the history of man kind. With computerization, the internet, and the sophistication of scanners and copying machines the problems will remain out of control at alarming rates.
Fighting crime can not be resolved by public law enforcement alone. Should every security guard in our malls and buildings be replaced by police ?
There is no better time then right now to be a criminal and in particular committing the crime of fraud. Would you rather have ten thousand or a hundred thousand fighting the war on crime?
Our criminals, debtors and those who refuse to pay income tax are now untouchable under the protection of federal acts. The private sector that would seek to catch, collect or prosecute these people will continue to be legislated having their tools removed from them year after year with no exceptions.
We should all be supportive of privacy legislation yet we must also be aware of the backfire. There has to be legislated exceptions to give victims rights to by pass the protection of personal data when it comes to the examples given.
Many are intimidated by the work conducted by PIs only up until they need the help of one or anyone in the private sector for that matter. Once you feel the pain of being a victim of crime, wrongful prosecution, or have a judgment, child support order or a debt that can’t be collected you will feel the frustrations of the private sector that would serve to help you but can’t.
Private investigators, security guards, forensic accountants, insurance adjusters, and employees of in house bank fraud departments may find themselves in a jail long before their targets of investigation. Their punishment for their methods may be more then the offences they were investigating.
About the Author:
Kevin Bousquet has been a licensed PI since 1986. He is a graduate in Law Enforcement, The Law Clerk Admin Program and a Certified Fraud Examiner with the Association of Certified Fraud Examiners.
He is president of The Corpa Group Inc a licensed Private Investigation agency established in 1991 working on behalf of major corporations, insurance companies and their legal counsel.
Kevin Bousquet can be seen giving lectures advocating on ways to combat fraud and changes to Adoption in Ontario with the Adoption Counsel of
Kevin Bousquet has his own TV show “Undercover With Kevin Bousquet” where shows depict real life examples of fraud, victimization, and the work conducted by the Private Sector. His show can be seen satellite, persona cable or streamed on the Internet at www.resourceschannel.com/programs-undercover.html