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How the US view of Digital Forensic Practitioners is impeding on Defendant Rights
By: Clayton Ellis, Digital Forensic Researcher
Digital forensics is a field that has been viewed in through the wrong lens for a long period of time now. While digital forensic work has been around for many years now, the view that many government agencies have towards it is very skewed. That skewed view that they have becomes extremely apparent when you look at the statutes and regulations that each state within the United States places regarding digital forensic work.
“Forensics” is defined as, “the application of scientific knowledge to legal problems”1. As such, digital forensics would be the application of digital based scientific technology in relation to a legal issue. These legal issues can range anywhere from a suite against an individual or individuals who executed a malicious cyber-attack against an individual or organization, the theft of digital information from an organization, or even possession of incriminating evidence in regard to another crime.
A private investigator is defined as, “a person not a member of a police force who is licensed to do detective work (such as investigation of suspected wrongdoing or searching for missing persons)”2. This definition is where issues begin to arise when it comes to a state’s legal classification within their statutes about what is defined as private investigation work.
Many states mistakenly classify digital forensics work under the same line of work as a private investigator. This classification then would require an individual to acquire a private investigation license to conduct work within that state if that state requires a license at all. Where the issue with this arises is in the requirements of acquiring a private investigation license and the definitions of private investigation work within each state’s statutes.
Due to this classification of having digital forensics put under the same line of work as a private investigator, a constant issue of defense within the legal line of work. A very relevant example of this would be in Michigan, where they require anyone practicing “digital forensics” to have a private investigation license. In a post written on the Michigan Technology Law Review, they talk about the various ways that the states statutes interfere with legal proceedings, “Commentators have noted that the Professional Investigation Licensure Act is so broad in its definition of “computer forensics” that it requires someone printing a Web page for use in court to be licensed as a private investigator. In such an application of the statute, it could be argued that the definition of “computer forensics” is too broad and thus a violation of procedural due process.”
3 Another instance highlights the vagueness of this statute even further with cases that can span multiple states, “In its recommendation the ABA poses the following hypothetical example of the jurisdictional issues the private investigation licensing regulations create: “For example, data may need to be imaged from hard drives in New York, Texas, and Michigan. Does the person performing that work need to have licenses in all three states?” Professor Bruce Boyden of Marquette University Law School would answer this question in the negative; he claims that states would not have jurisdiction over technicians performing computer forensic services out-of-state. To support this proposition, he cites Boschetto v. Hansing .… However, if Michigan chooses to assert jurisdiction based on where the information is located, Boyden argues that the Private Investigator Licensure Act would violate the dormant Commerce Clause power. Requiring computer forensic technicians to be licensed as private investigators would require technicians to be licensed in all states where information could be located. Considering the “slim” benefit of requiring licensing for the gathering of easily attainable information, such licensing would be unduly burdensome on interstate commerce.”4 Areas like this, where a judge can essentially choose whether or not to require an individual to have a license or not for each state in which they have to acquire data, only bring to light large areas where these statutes can easily impede on evidence gathering that could be used in the defense of what would otherwise be seen as a guilty client.
With many states, the requirements to even acquire a private investigation license cause another hurdle that can gatekeep digital forensic work. In the state of California, a state which requires a license to work in digital forensics, they state on their state’s website to acquire a private investigator license, “ Have at least three years (2,000 hours each year, totaling 6,000 hours) of compensated experience in investigative work; Or have a law degree or completed a four-year course in police science plus two years (4,000 hours) of experience; or have an associate degree in police science, criminal law, or justice and 2 ½ years (5,000 hours) of experience.”5 This requirement thus makes it so that to do digital forensics work you either must have done investigative work, which would require a private investigators license if you reside in California, have worked within law enforcement, or have a degree that is not related to computers and technology, but focuses on law enforcement careers. This requirement and others similar to it make it so that when it comes to digital forensics in various states, law enforcement or retired law enforcement are the majority of the individuals working within this field, which then can cause bias and immoral actions with any digital evidence that could be vital to cases.
In the state of Rhode Island, their statutes have a specific definition within the section pertaining to private investigators that says, “ “Computer forensic specialist” means a person who holds a professional certification as a computer examiner and who interprets, evaluates, tests, or analyzes preexisting data from computers, computer systems, networks, or other electronic media, provided to them by another person who owns, controls, or possesses the computer, computer system, network, or other electronic media.”6 This clear definition and explanation show that in order to do digital forensics work within the state of Rhode Island, they require the individual doing the work to hold a private investigators license. In a state such as
New Mexico, however, such clear definitions are not the case. New Mexico’s private investigators statutes say,
“ “private investigator” means an individual who is licensed by the department to engage
in business or who accepts employment to conduct an investigation pursuant to the Private
Investigations Act to obtain information regarding:
(2) a person; ”7
Statutes with unclear and vague definitions like this is what caused the research for the paper to begin. State statutes vary state by state in regard to private investigation, and in most cases don’t state anywhere whether or not they actually require an individual to have a private investigator license to do digital forensics work. This lack of clarity makes it so that trying to actually get into this field of work can sometimes seem nearly impossible and have massive hurdles to get past and figure out. When state departments were contacted with questions asking them to clarify if their vague statutes count digital forensics as needing a private investigator license, many of them were unsure themselves as they either tried to just repeat the statute back or to transfer the call off to someone else due to their lack of knowledge regarding the matter. With technology becoming more and more utilized in the modern time, the need for digital forensic work is a much-needed resource, but with this lack of knowledge and unclear legal standards when it comes to the field, it only makes completing work it this field more and more difficult and strenuous.
States Recognition of Digital Forensics under Private Investigation Findings
All the information listed below was collected via direct contact of the corresponding state’s licensing committee that handles private investigators, the corresponding state’s private investigation committee, or the corresponding state’s police force. Each state was asked if “Via the state’s statutes, does digital forensics fall under the classification of private investigation and if so, does that require a private investigation license to practice digital forensic work in the state.” Each state’s response as well as a link to the state’s statutes are listed together. (Note: Any state either not listed or shown as “Attempted” with a blank slot for “PI License Required” was contacted, but either was unreachable or never returned contact attempts.)
- Fairbanks-not in their code
- Anchorage-under the definition yes, but no specific section about digital forensics, Alaska Private Investigator Laws
- yes, due to the collection of files and information, Arizona Private Investigator Laws
- Yes, specific section for it, Delaware Private Investigator Laws
- No, section excluding computer forensics, Illinois Private Investigator Laws
- Yes/No, licensing for company but not for individuals, delegate, individual with most experience, has the licensing for company and all individuals under that company share that license. Indiana General Assembly Private Investigator Firm License – Application Requirements
- No, Kentucky Private Investigator Laws
- Yes, Maryland Business Occupations And Professions Code Private Investigator Laws Private Detective Agencies Requires both a private detective agency license and a Private Detective Certification
- Up to interpretation of each person, Washington Private Investigator Laws