Pretext Privacy & Private Investigators (short version)
Copyright – Kevin D. Bousquet
This is a reduced version of this article.
The full version can also be found on this blog:
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 if you’re 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 armour; 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.
Perhaps your car insurance premiums increasing and out of control, yet you wonder, why don’t insurance companies do something about rampant insurance fraud?
Welcome to Bill C-299, a private member’s bill, which is, seeks to ban the most effective anti-crime tool used by private investigators – the use of pretext (or false pretence)
and/or deception to glean information that may otherwise remain hidden.
Alberta Conservative M.P., James Rajotte wants to amend the Criminal Code as it relates to pretext (or false pretence) with his Bill C-299. If passed, this bill will make it illegal to obtain, or counsel others to obtain personal information on false pretences or to sell or disclose such information obtained by similar means.
The Bill will amend the criminal offence of “personation with intent,” to include fraudulent impersonation with intent to obtain any record containing personal information about a third party.
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.
Even though private and public investigators do not use pretexts for fraudulent means – in fact, provincial regulators allow the use of pretexts for a lawful purpose – Rajotte’s Bill will effectively strip both public and private investigators of a valuable investigative technique.
Rajotte is not without support in the private sector. 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.
Lai’s interpretation is that Bill C-299 speaks to the perception that pretexting is morally blameworthy and offensive to society, requiring either deterrence or compensation for victims.
The concerns over pretext, impersonation and private investigators stem from the recent Hewlett Packard scandal in the U.S. In order to determine the source of illegal information leaks to the media, Hewlett Packard hired private investigators to obtain confidential information on Directors of the company, company employees, and journalists.
The private investigators used pretexts and impersonation to obtain the private phone records of some Hewlett Packard directors suspected of the information leaks. The private investigators have been indicted on felony counts of identity theft, conspiracy, unlawfully accessing computer data, and fraudulently obtaining phone records, and now face penalties that could involve imprisonment.
The fallout from the Hewlett Packard scandal has 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. If passed, in its current form, every Canadian will feel its effects – not just private investigators. Canadians will wake up to a dysfunctional justice system, deprived of due process when key evidence remains hidden, and key witnesses become unavailable.
Pretext – What is it? How is it used?
Public law enforcement agencies use pretext or deception every single day to catch criminals: undercover police officers posing as someone they are not; pretext phone calls to determine if a suspect is at home; package deliveries to ID a suspect; and sting operations where a police officer poses as someone other then a police officer are common methods.
Pretext, deception and trickery are essential tools used in law enforcement. What would happen if these methods became illegal in public law enforcement? The hands of law enforcement would be effectively tied because the evidence obtained using pretext would not be admissible in a court. A world where public law enforcement could not use pretext, trickery, disguises, undercover or deception will be a world of crime.
In the private sector, investigators use these tools to obtain relevant information that would otherwise remain obscure.
Pretext aids private investigators in matters involving child support, enforcing court Orders and Judgements, investigating fraud and theft in the workplace, enforcing intellectual property rights, providing a full and complete defence for criminal defendants, providing full disclosure of facts to civil litigants, investigating insurance and bank fraud, and locating missing persons and children.
There is a huge difference between using pretext with the intent to commit a crime, and using pretex to investigate or solve a crime, yet the Hewlett Packard scandal has caused lawmakers and regulators to treat the virtuous and the criminal with indifference.
It’s not just Private investigators who use pretext as an important tool. 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 used pretext and trickery for years, even to set up sting operations to catch would be criminals. 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.
Posing as someone they are not, investigative journalists try to catch persons doing something wrong, and then expose this activity to the public (is there form of pretexting a lie?)
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.
Usually, pretexts are used to discover a person’s address, employment, or assets in order to assist in the administration of justice – to find witnesses, serve legal papers, or to collect judgments.
Pretext & The Law
Most private investigators would not condone the use of impersonation but they would condone the use of lawful pretext.
In most Provinces and States, licensed private investigators have been allowed to use lawful pretext, and regulators are perfectly aware that lawful pretext is a tool of the trade. In
Ontario, for example, regulations 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 insurance industry, financial community and legal profession agree that private investigators are an important part of the legal process.
Canada’s privacy legislation, The Personal Information Protection and Electronic Documents Act (PIPEDA), recognized the special role played by private investigators; in 2004 the federal government passed a regulation under PIPEDA conferring upon qualified private investigation agencies “Investigative Body Status”.
This regulation allows qualified investigation agencies to collect, use and disclose the personal information of an individual with that person’s consent. Pretext is one means of collecting information without consent.
The Consequences of Bill C-299
Law abiding citizens may believe that Bill C-299 is a great piece of legislation – until they become victims and enter into our court system. The unintended, but unavoidable result of this flawed legislation is further protections for deadbeats and criminals.
Canada is plagued by crimes of identity theft and mortgage fraud. The undergound economy remains out of control at alarming rates. Yet the government response is to eliminate the tools that private sectors use to thwart these crimes
and to recover stolen goods. Private Investigators are an answer to these problems not their cause.
A new and growing scam which, is similar to mortgage fraud, involves criminals registering a loan on your vehicle and skipping out with the money.
Innocent victims wake up to find their vehicle has be seized because a fraudster registered a loan against the vehicle and absconded with the money. Police are involved in investigating these crimes, but so is the private sector.
Private investigators investigate these crimes on behalf of banks insurance companies and their legal counsel.
Private Investigators continue to be instrmental in investigating mortgage fraud and identity theft on behalf of insurance companies.
The Legal Community Already in Big Trouble
Millons of people have judgments, court orders, child support orders or even criminal compensation awards that are completely worthless and will never be collected, because the debtor hides their money or simply refuses to pay.
Legal avenues to find bank accounts, employment and income information, and real property are few, and closing fast.
How is anyone expected to find a debtor’s bank accounts and assets if banks can’t cooperate, government databases are off limits, and debtors lie under oath?
If a debtor is trying to hide money or assets, there is usually no other way to find them, except by pretext and lawful deception.
In one lawful pretext call to a family member a PI mght be able to establish a place of employment in less then a few minutes so a garnishment can be served. The alternative is expensive surveillance costing thousands of dollars.
If private investigators, or even victims themselves, are not allowed to use trickery or pretext to obtain vital information, how does a successful litigant satisfy a judgment?
Members of the general public will soon realise it is not worth the time and expense to enter into our court system if they can’t collect on their awards. Everyone who works in the legal community will be affected.
A Common Sense Solution
At a time when fraud and white-collar crime are rampant, victims are being stripped of the resources necessary to detect, investigate, and prosecute crime. At a time when child support and judgment creditors go unpaid, victims are being stripped of the resources necessary to collect court awards.
The doors are closing rapidly all in the name of privacy. There is no consideration given or exceptions made for those who fight fraud, collect our debts, our child support or catch our criminals.
Canada and the U.S. need a holistic approach to these vital concerns. When retained in a civil or criminal proceeding, to enforce a court order or to collect a court award, Private investigators should have access to government records and databases.
In some Provinces private investigators are allowed access to motor vehicle information when involved in investigating insurance fraud yet in other Provinces like Quebec for example the doors have been closed.
When investigating unlawful activity, private investigators should be allowed to use lawful pretexts and deceptions to obtain contact information or employment informatin.
Without the safeguards for the legitimate clients of private investigators, Canadians will pay a dreadful price. Banks will increase interest rates, insurance premiums will rise, more people will be unable to afford auto insurance, more Canadians will be wrongfully convicted, and more litigants will lose cases they rightfully should win.
Court ordered monetary awards will continue to be worthless. The administration of justice both civilly and criminally will fall into disrepute.
Privacy advocates continue to applaud privacy legislation and will no doubt support pretext legislation. But how will they react when they themselves become victims of crime, wrongfully accused, or discover the impossibilities of trying to collecting a debt, judgment or child support order.
There is no better time then right now to be a criminal and in particular committing the crime of fraud. The privacy of criminals, debtors and those who are participants in the underground economy who refuse to pay income tax are now protected under federal acts.
The tools available to private sector investigators to catch, collect or prosecute these people are constantly being legislated out of existence.
If Bill C-299 is passed as currently drafted, many who work in the private sector will find themselves in a jail long before their targets of investigation.