Private Investigator Regulations
Regulations governing private investigators may vary by state or country. For instance, in some countries, the regulations governing private investigators are so strict that one must apply for a license and satisfy a number of other requirements in order to be a licensed investigator. However, in other countries, you may not even have to be associated with any professional association.
In the U.S., private investigators are generally not regulated at the federal level, but rather are governed by state laws. In some states, they may be required to register with a state board or office. For example, in North Carolina, private investigators must register with the Private Protective Services Board. In South Carolina, private investigators must register with the South Carolina Department of Labor, Licensing and Regulation. In fact, there are 7 states that require the issuance of a registration or license to a private investigator before he or she is allowed to work. Another 27 states require that a private investigator must be a licensed private investigator before he or she can practice.
But simply being a licensed private investigator in your own state does not necessarily make you a licensed investigator in another state. Some states have their own licensing requirements. For example, in Utah, if you are a licensed private investigator, you must apply for a separate license in order to conduct investigations on access devices. Likewise, in Texas, one must have a separate license as a security consultant in order to provide security consultation services.
While there is not a significant variance in the training and education required to become a private investigator in every state , there are some states that require more actual "hands-on" training and education than others. For example, to become a licensed private investigator in Georgia, one must have at least 60 semester hours of college education or its equivalent, plus at least 4 years of private investigative experience. In addition, this experience must include one of the following:
Colleges and universities now offer academic courses related to criminal justice and forensic science. There are 88 institutions of higher education that offer programs relevant to private investigation qualifications. Additionally, private investigators may participate in continuing education, internships, train law enforcement personnel, or teach specialized training courses. These "hands-on" opportunities may qualify for experience credit toward licensure or certification in certain states.
The Association of Professional Investigators International (APRI) has some of the most stringent requirements for licenses. APRI certifications require post-secondary education in related fields or work experience. After obtaining all requisite experience, certification candidates must pass rigorous written and oral exams. They also require certification maintenance through continued education.
The National Association of Legal Investigators (NALI) requires in-house training for recognition professionals. As special members, active and associate members of the International Association of Legal Investigators, Inc. (IALI), as well as investigative professionals employed by active or associate members of IALI, can earn certification.
When is it Legal and When is it Not to Hire a Private Investigator
When it comes to the legality of hiring a private investigator, most of the time you have full permission to do so. Many areas where a private investigator is frequently hired do not even require a private investigator license. It is not illegal to investigate the background of a person or business, but there are certain conditions that must be met for an action to be lawful.
If you are hiring a private investigator to determine if your spouse is cheating, you do not need a license. You do not need a licensed private investigator to follow someone or obtain photos or videos of someone where they have a reasonable expectation of privacy. If your spouse is at work or going for a run through the park, your actions will be lawful. Your spouse should not have any expectation of privacy in this situation, because they have chosen to go out in public.
There are many legitimate reasons for hiring a private investigator to conduct surveillance. Not everything you see in the movies is true. If you have a suspicion that your spouse has been unfaithful, you can hire a private investigator to find out what they are doing. This does not include having the investigator break into your home, looking through drawers or going through mail. An investigator is not a thief.
Missing-persons cases are commonly solved by private investigators. The key to a missing-persons investigation is getting as much information as possible about the missing person. When was the last time they were seen? Who were they with? Do they have any medical issues? What was their mental state like? Often missing-persons cases are solved just by asking questions and getting to know who the subject is. Relationships are everything in this business. A good investigator will care about their clients and about finding missing people.
Investigating a corporation is another responsibility that falls to private investigators. The condition that makes this type of investigation legal is that it must be a legitimate reason to conduct corporate or insurance investigations. Investigating if a competitor is involved in false advertising or kicking back bonuses is legal. Investigating if a competitor has done something that you find morally questionable is not necessarily legal. Investigations must be conducted for a legitimate purpose, like gathering intelligence on a competitor.
It is common sense, really. When these conditions are met, it is very rare that a private investigator gets into trouble for conducting an investigation.
What Private Investigators Can’t Do
Private investigators are restricted from a wide range of activities when carrying out their duties. Some of these restrictions are relatively obvious, such as the following:
However, the range of illegal activities that can result in criminal prosecution or lawsuit against a private investigator does not end there. There are many other activities that depend heavily on the particular goals and agenda of the person hiring a private investigator.
If a private investigator were to engage in any illegal types of surveillance, such as wiretapping a private phone conversation, he or she would violate laws beyond just the scope of California private investigator laws.
In addition, if a private investigator violated another person’s right to privacy, the individual who violated the law would likely be open to a lawsuit under California tort law, even if he or she did not directly carry out any unlawful actions. For example, if a person hired a private investigator to follow a spouse to find out if he or she was cheating, but then failed to stop the investigator when it became apparent he or she was violating privacy rights by, for instance, breaking into the spouse’s home in the middle of the night, both the client and investigator could be liable for any illegal conduct by the investigator.
Some other potential violations of law that would likely result in criminal prosecution or a lawsuit include: Due to the wide range of illegal activities a private investigator could carry out under the employment of a third party, it is vitally important to understand not only private investigator laws, but also any other criminal statutes relevant to the investigation.
Qualifications and Licensure of Private Investigators
The first thing to consider when hiring a private investigator is: are they licensed? A properly licensed investigator has undergone a thorough vetting process. For example, in New Jersey, you must apply for licensure through the state’s Division of Consumer Affairs. In order to do so, the prospective investigator must pass a written test, submit fingerprints for a criminal background check, successfully complete a course in professional ethics, submit an application with proof of experience and professional references and then place a classified ad in a publication of circulation for the county where he or she intends to operate. While the process for national licensure is mostly similar, each state has its own agency that oversees the licensure of private investigators.
An experienced investigator is often a good sign that the person you are hiring knows what they are doing. For example, if you are hiring someone to conduct a Nelson v. Horning investigation (which I have written about in a previous blog entry), the investigator should know how to conduct that type of investigation. Similarly, a PI who specializes in insurance crime may be more suited to investigate an incident of Workers Compensation fraud than a general investigator. It is important to ask what type of cases the investigator has experience with and whether he has any specialties or areas of focus. Another good sign of an experienced investigator is if he has any advanced certifications which require a similarly rigorous vetting process.
Having a license is not required in all states in order to conduct an investigation . The legal boundaries are blurred even further by the fact that many investigators often work for or are contracted by law firms to conduct investigations on their behalf. Whether the investigator is licensed is the first question that any attorney should ask. For example, in Pennsylvania there is no licensing requirement for private investigators to work as a contractor on behalf of a licensed attorney. However, Pennsylvania takes a stricter view and does mandate that a private investigator needs to be licensed to conduct an investigation on his or her own, not as an employee or independent contractor of an attorney. This will vary from state to state. No matter what, it is critical to ask whether the investigator is licensed and to be absolutely certain of how the law distinguishes between categories of activities.
If your investigator is not operating within the bounds of the laws of the state where the incidents occur, the admissibility of any potential evidence gathered during the investigation may be in serious jeopardy. For example, if you hire an investigator who does not have a license and one of the landlord-tenant tenants is later evicted and finds out that the landlord hired the investigator without obtaining a license, a court may find that the evidence gathered by the investigator is inadmissible and dismiss the case for that reason. Additionally, even if the evidence is initially admitted in a motion for summary judgment, the tenant may argue on appeal that the evidence should have been excluded.
Legally Engaging a Private Investigator
If you’re serious about not getting into trouble legally when hiring a private investigator, it’s essential the very first thing you do is check to make sure they are licensed – if your state or country requires a license. To check whether the PI License is valid (if applicable to your jurisdiction), ask to see the license in person and/or call the licensing agency. Be very wary of those who don’t have a license, especially here in the United States where each state has strict laws on licensing. Or those who don’t want to show you their license number, as they may be operating illegally.
Once you’ve verified they have the proper credentials, make sure you know how much their services are going to cost. Depending on the type of work they will be doing for you, whether it be surveillance, background checks, polygraphs, etc., have a good understanding of the time, money, and effort you have to put forward for the investigation.
Private investigator contracts are no different from a contract that you would sign at your local car dealership or furniture store. They’re agreements that outline the terms of a transaction and protect both parties. The contract should include conditions such as the fees and services to be performed. If the investigator is still in the habit of word-of-mouthing, there could always be a disagreement down the road and you people could take advantage of each other. To avoid such situations from happening, be sure to sign a written contract with the private investigator and ask for a receipt when making payments.
When an attorney is involved, it’s considered best practices for the attorney to ask the third-party investigator to follow some of these specific guidelines when obtaining relevant facts for a case:
- NEVER go about investigation without a client’s consent.
- Should not deliberately hide their role as investigators and should identify themselves as such when required by law or the ethics of their profession.
- When asked by a third party not to reveal their identity as investigators, the private investigator should make clear that they cannot comply with the order without sacrificing their integrity as investigators.
Consequences of Employing an Unlicensed Private Investigator
Hiring an unlicensed private investigator can have serious consequences and complications, both for the matter at hand and from the legal perspective. The results of an investigation done by a non-professional are often discarded because the information had to be gathered illegally or was incomplete. For example, a skilled investigator knows the proper ways to do surveillance, while an untrained individual is more likely to follow the person he or she is watching, making them suspicious and allowing the target to "shake" the "tail." This sort of inexperience can be further compounded when the investigator did not know that certain information was not allowed to be used as evidence. For example, an investigator might collect information about your spouse’s calls or other records that he or she found on his or her own, only to find out later that records obtained in this manner were inadmissible.
Even if the seeker of an investigator’s help manages to get decent results, the investigator is now a witness or the subject of a lawsuit. If the target of the investigation is the person who has misused the results of the work, now the results are admissible against him or her . They were withheld from the case, but are still within the position of the party that has authority over them. There are many pitfalls for people who aren’t completely engrossed in the laws and the best practices of gathering information that infringe on others’ privacy. Situations that the plaintiff originally believed were in his or her favor might end up hurting their chances at a successful outcome.
Moreover, the seeker of legal representation can be hurt for having hired an unlicensed investigator. A judge can punish a plaintiff or even a lawyer for using an investigator who did not follow the law. Punishment can come in the form of monetary sanctions, losing the ability to recover payment of their legal fees from the other side, or even taking away their right to file the case.
The legal requirements to hire a private investigator are similar to those to hire a lawyer. As is the case with lawyers, there are licensing and continuing education requirements. They are held to the industry standards, both by law and by the field itself where they will not be able to obtain work outside of their own company. The risks of hiring without a license are very real, and investigating privacy issues should be left to the people who know best how to handle them.