Hurray! Finally the voice of reason )
"Last week the American Bar Association voted to support a resolution
sponsored by the ABA Science and Technology Section…
RESOLVED, That the American Bar Association urges State, local and territorial legislatures, State regulatory agencies, and other relevant government agencies or entities, to refrain from requiring private investigator licenses for persons engaged in
computer or digital forensic services or in the acquisition, review, or analysis of digital or computer-based information, whether for purposes of obtaining or furnishing information for evidentiary or other purposes, or for providing expert testimony before a court…
The entire document can be found here
(1) Who gives a flying @#$%^& what the ABA says, thinks, or devines? Amazing that this guild has installed itself as society's moral watchdog. A "Science & Technology Section?" These attorneys– and one is barred from membership unless one is a Sworn Officer of the Court (genuflect)– know exactly what about science and technology? Even among that vanishingly rare number of attorneys (genuflect) who have hard science undergrad degrees, so what? They have never worked as scientists or engineers.
Let me guess… some judge ruled that this Science and Technolgy Section must be accorded all respect (legal, moral, and otherwise) due working scientists.
Presumptuosness, thy name is the Bar.
(2) As I argued previously the digital forensics field NEEDS this PI thing. For the protections afforded if nothing else. Do not believe it? Call up your local procutor the next time you find "highly illegal" content. Think we know of what I speak. You may find that as a non-LE who was in "possession and control" you face, at the least, bankruptcy. Legal bills, felony rap, registration, banishment, &c.
Sweeping this issue under the rug will not solve it. A (semi-)analogy might be made with bounty hunters. Remember the dustup with one Duane Chapman, better known as Dog the Bounty Hunter? Hot on the trail he went to a foreign country, did not follow their laws, and experienced the inside of a foreign jail. Even though the target was a murderer and billionaire playboy… the perfect Hollywood Villain. Chapman seems to have silthered out of this one, just barely, his shiny badge and "take-no-nonsense" attitude notwithstanding. But I bet he pays closer attention next time he Leaves Home on a Mission.
My $0.02.
Ignoring the whole diatribe about members of the bar who are often the reason we have jobs on which to work.
As I argued previously the digital forensics field NEEDS this PI thing. For the protections afforded if nothing else.
What protection do you think being a PI affords you? Let me clear it up, NONE. Not only do you not have protection, but a number of States require that at least one Partner or Executive Member of the Corporation be a resident of the State and hold a valid PI license in that State. Pretty much restraint of trade against out-of-State examiners.
Additionally some State requirements are so onerous that even computer security consultants are required to be licensed as PIs to perform some of their duties. Just what I need, my Cisco or Juniper engineer needing to be licensed as a PI before I can bring them in from California on a case.
And what does being a PI have to do with being a CF examiner? Perhaps some crossover in the knowledge of law. Beyond that? However where is the requirement for a PI to be qualified in CF before they begin examinations? Only in one State as far as I have seen.
(2) As I argued previously the digital forensics field NEEDS this PI thing.
Uncompellingly, IMHO. Professional accreditation, yes, but by a group of peers, not some guy who hides in a car snapping pictures for divorce action. As in all professions, we are moving toward that, however, it makes no sense to be co-opted by a profession that doesn't understand the first thing about what it is that we do.
For the protections afforded if nothing else.
Nothing protects you against malpractice and I would argue that the marketplace is better protection than any licensing procedure. I know bad lawyers, bad doctors, bad drivers, bad plumbers, etc., all of whom are licensed. What a license proves is that you can pay the fee and, in some cases, pass a test. So what?
Do not believe it? Call up your local procutor the next time you find "highly illegal" content. Think we know of what I speak. You may find that as a non-LE who was in "possession and control" you face, at the least, bankruptcy. Legal bills, felony rap, registration, banishment, &c.
In what jurisdiction? I have had that very thing happen to me. I discovered CP on the computer of a user who was actually be sued in a theft of trade secrets action. The photos were taken by his teenage daughter and friends using a cell phone camera and he claimed that he was totally unaware of this but that he did allow his daughter to use his computer. I told him that I had no choice but to report my findings to the authorities who, after interviewing him, determined that he was telling the truth. Neither he nor I faced any legal or other action.
The reason is that in Federal law and in most state laws (I have not read all), the crime is to knowingly possess, distribute, reproduce, etc., CP. If you didn't know that it was there, you can't be prosecuted for having it.
Sweeping this issue under the rug will not solve it. A (semi-)analogy might be made with bounty hunters. Remember the dustup with one Duane Chapman, better known as Dog the Bounty Hunter? Hot on the trail he went to a foreign country, did not follow their laws, and experienced the inside of a foreign jail.
Not a particularly good analogy. Foreign countries are sovereign states. They have no obligation to make their laws consistent with US laws. But the states are different. They are limited in their ability to restrict interstate commerce and in their ability to inact legislation which is inconsistent with Federal legislation (look at legalization of marijuana or stringent environmental protections as examples). Contracts made in one state are, typically, enforceable in all states.
Moreover, the state laws can only apply to the state courts. South Carolina cannot bar me from rendering an expert opinion in Federal Court no matter what their law says.
The Federal Courts already have a well thought-out, well tested process for the qualification of expert testimony and opinion. They don't need state legislatures telling them who they can hear from and neither do the state courts. The truth is the truth. Who tells it is less important than how they came to know it.
(1) California excised knowlege from the CP statute. Possession and control, nothing else. Period.
(2) Benefits? Can you say, "Errors and Omissions Insurance?" Once underwriters are involved things get hammered out quickly. There is just too much money at stake. If a licensed PI is put through the wringer in CA for innocently (and diligently) examining a computer containing CP, the underwriter will be out a tremendous amount of money. Lawyers, bondsmen, more lawyers, the entire defendent cash outlfow scene. If the underwriters decide to suspend all such policies that will shut down the entire field. But collateraly the computer repair industry is put on hold. Which will force legislatures to make uncomfortable decisions.
I am a former insurance agent so tend to view through that lens.
(3) The Dog (semi-)analogy is far from perfect. Note the word "semi." But there are parallels… will not list them since that is pedantic. But if you as a pro, ethical, by the book digital forensics investigator wish to be on the front lines without a stable legal foundation on which to stand, go for it. You are braver than me.
This PI thing is messy (and I do not like it) but does anyone else have a workable solution?
Clarification sought When one refers to a "Cisco or Juniper engineer" are these degreed engineers? Or guys who passed a few certification test then began calling themselves engineers? There is a difference. A lot like a tree doctor presenting himself to the public as a surgeon.
(1) California excised knowlege from the CP statute. Possession and control, nothing else. Period.
References. Every version of the law that I have seen includes knowingly. Furthermore, the definitions which apply to the law seem to imply that the purpose of the possession is important in determining the criminality of the possession.
(2) Benefits? Can you say, "Errors and Omissions Insurance?"
I miss the point. I have never had a problem with Errors and Omissions insurance and my state has no requirement for licensing. There is nothing that prevents me from obtaining such insurance.
(3) The Dog (semi-)analogy is far from perfect. Note the word "semi." But there are parallels… will not list them since that is pedantic. But if you as a pro, ethical, by the book digital forensics investigator wish to be on the front lines without a stable legal foundation on which to stand, go for it. You are braver than me.
Again, the issue is your practices, not credentialling by some irrelevant organization. California licenses multiple types of medical practitioners (physicians, dentists, pharmacists, physical therapists, nurses, etc.) Obviously this is because specialized knowledge sis required for each; one size does not fit all.
Similarly, being a PI does not qualify one to practice computer forensic examinations, and vice versa. If they want to credential computer forensic examiners, let them set criteria which apply to that discipline, not dumpster diving.
This [the ABA resolution] makes me so happy.
I think its fair to say that u2bigman is in the minority here. Why would any forensic practitioner want to be categorised as a PI? We don't ask for medical experts, pathologists, building engineers, motor mechanics, (and the list goes on) to be qualified PI's in order to present expert evidence in court so why, why, WHY should we be forced into the ridiculous area?
I've said all along that the only people that know how to regulate digital forensics are the people that are involved in the industry.
The whole PI debate is kind of dumb actually.
As far as Dawg the Bounty Hunter getting arrested in Mexico for attempting to apprehend and take a fugitive back to the US, perhaps he should have done a teeny bit of homework first.
It is illegal for anyone to enter a foreign state without an invitation to arrest someone. Period. That includes law enforcement personnel.
The rule is you contact the local LE people and have them arrest the subject, then you go through the extradition process.
Also, even if you are invited into a foreign state as a law enforcement guest, you cannot arrest anyone, nor in most cases, can you legally carry a weapon.
Oh, also on licensing People who are licensed by professional licensing boards, such as doctors, CPAs and public engineers are typically excluded from PI licensing laws.