PIs Fight anti-GPS Legislation

Private investigators in Virginia have been fighting against proposed anti-GPS legislation since it first was floated nearly two years ago because it excludes them. ISPLA executive committee member, Nicole Bocra of Infinity Investigative Solutions in Virginia, summed up the objections of HB 807 for the Associated Press:  “Private investigators perform a public service by working on insurance fraud, embezzlement and other white-collar crimes,” she said. Their efforts will be hampered if they can’t electronically track suspected embezzlers as well as cheating husbands. “We play a vital role in this system.”  She noted that, unlike police, they cannot obtain a warrant, which by the 2012  U.S. Supreme Court decision in U.S. v Jones is now required of law enforcement. The bill passed out of a Virginia House of Delegates committee. However, Nicole Bocra, and representatives of Private Investigators Association of Virginia and the Professional Investigators and Security Association did not cease their fight to defeat this bill.

On February 20, Phil Becnel of Dinolt Becnel and Wells Investigative Group of Virginia, an ISPLAPAC financial supporter, posted the following announcement:

“I am very pleased to announce that Del. Joe May's GPS tracking bill was killed in the Virginia Senate today by a vote of nine to six. Although there is a slim chance that the bill could be reintroduced this session, this is highly unlikely, meaning that we are probably out of the woods on this issue until next year.

I would like to extend a very special thank you to our lobbyist in Richmond, James Towey, for pulling the right strings behind the scenes and to our members John Morse and John Kipley for helping to represent our industry’s position this morning in Richmond when so many of us (me included) could not make it down there. I would also like to thank Nicole Bocra for pulling everything together at the final hour and for her tireless work on this issue over the past couple years. This was a joint effort of PIAVA, PISA and ISPLA ......and it just goes to show you what we can accomplish when we all work together as an industry.”

A Washington Post article on this legislation is at:

http://www.washingtonpost.com/local/va-senate-committee-kills-legislation-to-bar-secret-electronic-tracking/2012/02/20/gIQAVtOZPR_story.html

ISPLA stands ready to assist our colleagues in any way it can on this issue in the future. In Michigan, where ISPLA Chairman Peter Psarouthakis of EWI & Associates, Inc. has handled legislative matters, GPS tracking by professional investigators conducting lawful investigations is legal. He has furnished legislative material used to enact the favorable GPS statutes in Michigan to our colleagues in Arizona, Georgia, New York, and Virginia.

Bruce Hulme

ISPLA Director of Government Affairs

www.ISPLA.org

ABAResolution 101C ADOPTED AS REVISED

Urges Judges’ Consideration Presenting Expert Testimony to Jurors

RESOLVED, That the American Bar Association urges judges and lawyers to consider the following factors in determining the manner in which expert testimony should be presented to a jury and in  instructing the jury in its evaluation of expert scientific testimony in criminal and delinquency proceedings:

1. Whether experts can identify and explain the theoretical and  factual basis for any opinion given in their testimony and the reasoning upon which the opinion is based.
2. Whether experts use clear and consistent terminology in presenting their opinions.
3. Whether experts present their testimony in a manner that accurately and fairly conveys the significance of their conclusions, including any relevant limitations of the methodology used.
4. Whether experts explain the reliability of evidence and fairly address problems   with evidence including relevant evidence of laboratory error, contamination, or sample mishandling.
5. Whether expert testimony of individuality or uniqueness is based on valid scientific research.
6. Whether the court should prohibit the parties from tendering witnesses as experts and should refrain from declaring witnesses to be experts in the presence of the jury.
7. Whether to include in jury instructions additional specific factors that might be    especially important to a jury’s ability to fairly assess the reliability of and weight to be given expert testimony on particular issues in the case.

The resolution is derived from a report which in part states:

"Many of the reported problems with forensic science evidence have resulted from the failures of trial attorneys to investigate thoroughly forensic science evidence, the misunderstandings of trial attorneys concerning the nature of that evidence and misstatements by trial attorneys concerning the weight to be attributed to that evidence.  Until an elevation in the knowledge base of trial attorneys is achieved, the adversarial system will continue to falter with respect to the proper presentation of forensic science evidence."

Below is a direct link to the 17-page ABA reference material which criminal defense investigators should consider reviewing. Among other things, it comments on the National Academy of Sciences (NAS) Report on forensic science, along with cases such as Daubert:

THE MICHIGAN Tracking Device Execption

Never thought I said this but: Go Blue

THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931

750.539l Tracking device; placement or installment on motor vehicle without consent; violation as misdemeanor; penalty; exemptions; inapplicability of subsection (2)(j); liability for damages; definitions.

Sec. 539l.

(1) A person who does any of the following is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both:

(a) Installs or places a tracking device, or causes a tracking device to be installed or placed, in or on a motor vehicle without the knowledge and consent of the owner of that motor vehicle or, if the motor vehicle is leased, the lessee of that motor vehicle.

(b) Tracks the location of a motor vehicle with a tracking device without the knowledge and consent of either the owner or the authorized operator of that motor vehicle or, if the motor vehicle is leased, either the lessee or the authorized operator of that motor vehicle.

(c) While being the restrained party under a protective order, tracks the location of a motor vehicle operated or occupied by an individual protected under that order with a tracking device.

(d) While on probation or parole for an assaultive crime or a violation of section 81(3) or (4) or section 81a(2) or (3), tracks the location of a motor vehicle operated or occupied by a victim of that crime or by a family member of the victim of that crime without the knowledge and consent of that victim or family member.

(2) Subsection (1) does not apply to any of the following:

(a) The installation or use of any device that provides vehicle tracking for purposes of providing mechanical, operational, directional, navigation, weather, or traffic information to the operator of the vehicle.

(b) The installation or use of any device for providing emergency assistance to the operator or passengers of the vehicle under the terms and conditions of a subscription service, including any trial period of that subscription service.

(c) The installation or use of any device for providing missing vehicle assistance for the benefit of the owner or operator of the vehicle.

(d) The installation or use of any device to provide diagnostic services regarding the mechanical operation of a vehicle under the terms and conditions of a subscription service, including any trial period of the subscription service.

(e) The installation or use of any device or service that provides the lessee of the vehicle with clear notice that the vehicle may be tracked. For a lessor who installs a tracking device subsequent to the original vehicle manufacture, the notice shall be provided in writing with an acknowledgment signed by the lessee, regardless of whether the tracking device is original equipment, a retrofit, or an aftermarket product. The requirement for written acknowledgment placed upon the lessor is not imposed upon the manufacturer of the tracking device or the manufacturer of the vehicle.

(f) The installation or use of any tracking device by the parent or guardian of a minor on any vehicle owned or leased by that parent or guardian or the minor, and operated by the minor.

(g) The installation or use of a tracking device by a police officer while lawfully performing his or her duties as a police officer.

(h) The installation or use of a tracking device by a court officer appointed under section 8321 of the revised judicature act of 1961, 1961 PA 236, MCL 600.8321, while lawfully performing his or her duties as a court officer.

(i) The installation or use of a tracking device by a person lawfully performing his or her duties as a bail agent as authorized under section 167b or as an employee or contractor of that bail agent lawfully performing his or her duties as an employee or contractor of a bail agent.

(j) Except as provided in subsection (3), the installation or use of a tracking device by a professional investigator or an employee of a professional investigator lawfully performing his or her duties as a professional investigator or employee of a professional investigator for the purpose of obtaining information with reference to any of the following:

(i) Securing evidence to be used before a court, board, officer, or investigating committee.

(ii) Crimes or wrongs done, threatened, or suspected against the United States or a state or territory of the United States or any other person or legal entity.

(iii) Locating an individual known to be a fugitive from justice.

(iv) Locating lost or stolen property or other assets that have been awarded by the court.

(3) The exemption under subsection (2)(j) does not apply if either of the following applies:

(a) The professional investigator or the employee of the professional investigator is working on behalf of a client who is the restrained party under a protective order.

(b) The professional investigator or the employee of the professional investigator knows or has reason to know that the person seeking his or her investigative services, including the installation or use of a tracking device, is doing so to aid in the commission of a crime or wrong.

(4) A person who illegally installs or uses a tracking device or a person described in subsection (2)(i) or (j) who installs or uses a tracking device is liable for all damages incurred by the owner or lessee of the motor vehicle caused by the installation or use of the tracking device.

(5) As used in this section:

(a) "Assaultive crime" means that term as defined in section 9a of chapter X of the code of criminal procedure, 1927 PA 175, MCL 770.9a.

(b) "Minor" means an individual less than 18 years of age.

(c) "Motor vehicle" means that term as defined in section 412.

(d) "Professional investigator" means a person licensed under the professional investigator licensure act, 1965 PA 285, MCL 338.821 to 338.851.

(e) "Protective order" means both of the following:

(i) An order entered under section 2950, 2950a, or 2950h of the revised judicature act of 1961, 1961 PA 236, MCL 600.2950, 600.2950a, and 600.2950h, or under section 6b of chapter V or section 3(2)(o) of chapter XI of the code of criminal procedure, 1927 PA 175, MCL 765.6b and 771.3, or under section 13a of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.13a, or under section 36(16) of the corrections code of 1953, 1953 PA 232, MCL 791.236.

(ii) A foreign protection order as defined in section 2950h of the revised judicature act of 1961, 1961 PA 236, MCL 600.2950h.

(f) "Tracking device" means any electronic device that is designed or intended to be used to track the location of a motor vehicle regardless of whether that information is recorded.

History: Add. 2010, Act 107, Eff. Aug. 1, 2010

© 2009 Legislative Council, State of Michigan

That Good Feeling

That Good Feeling

By: Jim Silvania, CLI, CFE

            There are times in this business when you wonder if it’s all worth it. Incoming payments are slow and every investigation seems to run into a brick wall. Then something you did weeks ago makes it all worthwhile.

            For some it’s the release of a wrongfully convicted offender. For others it is reuniting a loved one with a lost relative. The list could go on, but for me on this wonderful day it’s obtaining justice or some semblance thereof.

            Some time back we were contacted by a frustrated family in Southern Ohio who had come to the end of their wits in attempting to resolve a “bullying” issue involving their 14 year old special needs daughter. The aggrieved family had been turned away by the county prosecutor, the county sheriff, Children Services and the school system in which the alleged bullying occurred. The superintendent of the school district had ordered the family off school property and sent them an email stating that their accusations were “bordering on slander and harassment."

            In every instance the family was turned away by the people whose salaries they paid to protect their child. Even worse, the perpetrators of the alleged abuse were also recipients of the family’s tax dollars. So, in reality, the family was paying to have their daughter abused by her middle school teacher and the teacher’s aide.

            A well-placed tape recorder revealed the following conversations:

·         The teacher’s aide can be heard asking the student why she said she didn’t know the answer to a question. “Because I didn’t know,” the student said. “Are you kidding me?” the aide said. “Are you that damn dumb? You are that dumb? ... Oh, my God. You are such a liar.” “I am not lying,” the student said. “No wonder you don’t have friends,” the aide said. “No wonder no one likes you.”

·         Both the teacher and the teacher’s aide teased the student about her body. “Don’t you want to do something about that belly?” “Yes,” the girl said. “Well, evidently you don’t, because you don’t do anything at home,” the aide said. “You sit at home and watch TV.”

·         When the student failed to answer a question correctly, the teacher ordered her to climb onto an exercise treadmill, which was in the classroom to help “refocus” special-needs students. The recordings suggest that the student spent more than 15 minutes on the treadmill—with the speed steadily increasing. Eventually, the treadmill stopped working, and the girl was told to run in place.

            When the family complained to the school board, the accused teacher’s remarks were “liars raising a liar.” The school board initial investigation found “no inappropriate conduct” by either the teacher or the teacher’s aide. That was until the audiotapes were made public which in turn caused the school board to quickly settle the matter out of court for $300,000.

            The sad part of the story is that the teacher’s only punishment for her criminal acts was to be forced to attend a “bullying” seminar. The teacher’s aide was summarily dismissed. The superintendent, who allowed for the activities of the teacher and teacher’s aide to continue, received no disciplinary action.

            There are times when people have been betrayed by those they place in positions of trust to look out for their own interest and that of their loved ones. In those times the much aligned plaintiff’s attorney and their private investigators can expose the darkness to light and attempt to bring about justice for the wronged.

It’s what keeps some of us going.

Jim Silvania, CLI, CFE, owns Silvania Investigative Services, LLC. He’s investigated throughout Ohio for 45 years.

 See: http://today.msnbc.msn.com/id/26184891/vp/45302872#45302872  for Ann Curry’s interview of the victim, her father and their attorneys.

Businesses hire private investigators to trawl social media

Businesses hire private investigators to trawl social media
Published: Monday, November 28, 2011, 5:40 AM     Updated: Monday, November 28, 2011, 6:45 AM
 By Alison Grant, The Plain Dealer
     Business Wire file more than 82 percent of companies use social media to find out information about their competitors, according to a Forrester Research survey last year of more than 150 companies.

     CLEVELAND, Ohio -- The telephoto lens is still one of a private investigator's most valuable tools, but a Facebook account is becoming just as important. Especially in the business world. Increasingly, corporations are hiring private investigators to trawl social-media sites for intelligence about competitors and to watch for insider leaks, product complaints and evidence of employee misconduct.
     Investigators still use the old-fashioned ways -- snapping secret photos, slapping global positioning devices onto cars, tunneling through criminal files. But today's corporate sleuths spend more time mining the mass of information people put online about themselves.
     "We use social media primarily to research people," said Avon Lake native Kristin Wenske, an investigative analyst in New York City with Corporate Resolutions Inc., an intelligence service. Wenske's clients are mostly private-equity firms and hedge funds, and before they plow hundreds of thousands or millions of dollars into a company, they want to make sure its management team is clean.

     Private investigator Tom Pavlish of Cleveland also has been assigned to check into chief executives of companies targeted for acquisition. In one case, the CEO had a favorable public image, but research unearthed sexual harassment accusations from two sources. Pavlish's client decided not to keep the executive when the deal closed because of the potential exposure and liability if the manager repeated his conduct.

    "Remarkably, I've developed negative information even from LinkedIn references," Pavlish said.
 Spying on the other guys

     More than 82 percent of companies use social media to find out information about their competitors, according to a Forrester Research survey last year of more than 150 companies.
     Paul Baeppler, a Cleveland police sergeant who founded Integrity Investigations in Westlake, said Tweets, Facebook updates and Google searches back up classic detective work, allowing investigators "to read between the lines and see what's not actually there and using that as a lead into something more concrete."

     At Corporate Resolutions, Wenske uses social media to look for illegal activity, undisclosed business interests and resume puffing. For one client who needed help collecting money from a businessman who pleaded poverty, Corporate Resolutions' cyber-search showed the businessman was hiding assets. The businessman's son posted comments on Myspace.com about hanging out at his dad's place in the Caribbean, with photos of the property.  "Based on these comments we extended our asset search to the Caribbean," Wenske said.

     The hazards of an accidental online disclosure also tripped up Hewlett-Packard Co. this year when a vice president mentioned the computer maker's new web-storage initiative on his LinkedIn profile. Business rivals got a look at previously secret details of the company's cloud-computing services.

     Kroll Inc., an international firm, has a reputation as Wall Street's private eye because of the agency's corporate espionage. Social media is a tool that only gets better as it gets more robust, said Peter Turecek, Kroll's senior managing director of business intelligence and investigations. Kroll builds profiles of executives in prospective deals, "where we hope the person is good and angelic," Turecek said. Fraud investigations look at the modus operandi of suspects. Have they done this before? How did they do it? Who in their network may be in on it?

    When one client asked Kroll to investigate an intellectual-property breach, the company used photos posted on Twitter -- shot from the rooftop of a New York City building -- to determine the address of the suspect's apartment.

    In another investigation, Kroll used LinkedIn and Facebook to establish connections between a vendor and an employee who may have embezzled company money.

     "Not too long ago it was very difficult to try to ascertain who someone's network or associates were without doing a lot of data mining and even surveillance, which is fairly labor intensive and therefore costly," Turecek said. Mario Zelaya of Majesetic Media in Toronto said he and his partners were shocked to learn how easily they were able to spy on a competitor. By blending information from Google, Facebook, Twitter and geolocation sites FourSquare and Gowalla, Majestic Media identified which clients the competitor's salespeople spoke with and what potential deals were occurring. It would have been quite possible to phone the clients and confirm the hunches -- and possibly disrupt ongoing negotiations if contracts weren't signed, Zelaya said. That's why he considers such tactics unethical. He said his experiment was meant only as a cautionary lesson about posting sensitive information online.

 'You want to avoid surprises'

     Jim Silvania, owner of Silvania Investigative Services in Columbus, has used social media to check the financial strength of people who wanted to invest in a client's business; to see who was responsible for giving business secrets to a competitor; and to investigate a violent employee who turned out to be a member of the American Nazi Party, posing in an Internet photo with a rifle in his arms and a swastika. "They provided extra security when they did the termination," Silvania said.
     The Cleveland law office of Porter, Wright, Morris & Arthur has hired investigators to find out more about a company or its executives when there were reasons to be "abundantly prudent," partner Michael Ellis said. "You try to gather as much information about the other side, good and bad, as you can. You want to avoid surprises," he said.

    As the effect of social media becomes more intense, companies have begun monitoring what's being said about them online -- and trying to manage their Internet footprint.

     In a warren of cubicles at SP Data's U.S. headquarters in Tower City, many of the office's 225 employees track what is being said about SP Data's customers on social media, blogs and opinion sites. Online chatter about a company or its products that is positive might prompt an SP Data employee to re-Tweet the comment or respond to the writer with a thank you. When the sentiment is negative, the poster might get a response through the same online site, or by phone or email. "Only 5 percent of posts ever made about a company are responded to," said Daniel Bemis, president of SP Data. "It should be commonplace."

     Reputation.com Inc., based in Redwood City, Calif., helps businesses promote themselves on the web. Chief Executive Michael Fertick advises businesses to start by understanding how they're perceived online. Does 50 Likes on Facebook mean anything? Does the fact that people are mentioning you once a week on Twitter mean anything? How does that compare with other businesses in your field? Reputation.com says there's a way to put the Internet genie back in the bottle: Once a company has a handle on its image, it can start to manage it. The firm has made "millions of observations" about the secret rules of Google, Fertick said, to figure out how to shuffle postings about a company to put it in the best light. As for web monitoring for competitive business intelligence, Fertik figures it's in its infancy.

    A single Fortune 500 business might be mentioned dozens or hundreds of times a day online -- a mountain of traffic to analyze. So Reputation.com is designing software that understands human language enough to sift for positive and negative sentiment. The computer analytics are daunting. "We've worked on it for 4½ years," Fertik said.

    But when it comes to human investigators sniffing the Internet for specific companies or employees, the hunt for fertile tidbits is in full swing. "Every day, in a multitude of ways, in social networks," Silvania said, "it's out there."