PI licensing

… this (thankfully) does not cover Federal Courts located in SC. The Federal Court system allows judges, not the legislature, to determine who qualifies as an expert, as it it should be.

Ah, the "Daubert Hearing!" Yes, yes. Another opportunity for opposing counsel to "game the system," as in

"Your expert is a phony!"
"No, YOUR expert is a phony!"

What was designed to reduce the amount of "junk science" in Court proceedings, has put the Judge into the role of gatekeeper. Again, the exasperated Federal Judge I met in Georgia spoke volumes when he said "Hell, we don't know!"

And now from a different State, viz., Montana; this just in from Jimmy Weg. Agent in Charge, Computer Crime Unit at Montana Department of Justice

I'm pleased to report that the Montana Senate and House passed, almost unanimously, HB 354, which creates an exemption from PI licensing for forensic practitioners. The law takes effect on October 1, 2009. I initiated the process in March 2008, when the PI licensing board agreed that our PI statutes were not designed to cover computer forensics or the practice of forensics by, for example, DNA and medical labs. While regulation of computer forensics examiners (CFEs) may be in order, the PI statutes afford no protection to consumers, above an beyond finger printing. I agreed to work with the licensing agency should it desire to consider a licensing scheme for CFEs.

- Emphasis added.

Well! I guess *I* won't be "movin' to Montana [anytime] soon!" (Yeah, like there's a lot of CFE work THERE!)

So, SC v. MT. That's TWO of the "United" States… let's hear from the other 48.

"America… what a country!"

-AWTLPI

Ah, the "Daubert Hearing!" Yes, yes. Another opportunity for opposing counsel to "game the system," as in

"Your expert is a phony!"
"No, YOUR expert is a phony!"

What was designed to reduce the amount of "junk science" in Court proceedings, has put the Judge into the role of gatekeeper. Again, the exasperated Federal Judge I met in Georgia spoke volumes when he said "Hell, we don't know!"

I don't disagree that a Daubert Hearing can be a distraction and has the potential for a flawed outcome. But I would still lean towards the free market approach rather than imposing ill-considered regulation which restricts a client's access to qualified practitioners without guaranteeing that the practitioners to which the client has access are qualified.

I repeat my question which is What in the SC law ensures that the licensed PI is qualified to perform computer forensics and render computer forensic opinions?

PI licensing for computer forensic investigators is a solution in search of a problem. By this logic, ANY forensic practitioner should be required to be a PI.

Further, the possession of a PI license is not a protection against a Daubert challenge. Any conclusion based upon a purported expert's interpretations of the facts is subject to a Daubert challenge whether the expert is license, certified, credentialled, etc.

And, by the way, the judge has ALWAYS been the gatekeeper. The jury is the determiner of the truth; the judged determines what evidence will be heard in order to reach the truth. Daubert merely gave judges a set of criteria to be applied to the admission of scientific conclusions. It did not create the gatekeeper role for the judge.

…
And now from a different State, viz., Montana; this just in from Jimmy Weg. Agent in Charge, Computer Crime Unit at Montana Department of Justice

Might I suggest that, if you quote someone's post from another forum or publication, you advise the original author, particularly if you don't use the entire posting. Thank you.

Well! I guess *I* won't be "movin' to Montana [anytime] soon!" (Yeah, like there's a lot of CFE work THERE!)

Do you know how much CFE work is in MT? Is there more work in SC than MT?

So, SC v. MT. That's TWO of the "United" States… let's hear from the other 48.

I'm not sure what you mean by this, and I'm sorry, but haven't had a chance to revisit the entire thread. I didn't know, however, that we're in a contest of sorts with SC.

Might I suggest that, if you quote someone's post from another forum or publication, you advise the original author, particularly if you don't use the entire posting. Thank you.

Noted, although attribution of the author *was* included. Your welcome.

I'm not sure what you mean by this… I didn't know, however, that we're in a contest of sorts with SC.

{Sigh} No contest. I was trying to inject a little bit of levity into a thread that had grown somewhat testy, IMNSHO. I made an oblique reference to a lyric by one of the Greatest Rock Composers Ever. Multiple lapses in 'Netiquette, perhaps? My bad.

Now, if you'll 'scuse me, I have a product to review. (Stay tuned!)

-AWTLPI

When the quote is from a post from a closed listserve, attribution is not sufficient. If for example you re-posted that from the IACIS listserve, you'd have committed an ethics violation that could result in your removal from the list, or worse.

Don't even get me started on the potential copyright issues.

N.B. I obtained permission from Jimmy to quote him on my blog.

Don't even get me started on the potential copyright issues.

Sorry. If the post was on a public forum, it's up for grabs. Rather like one's overhearing a conversation at a restaurant. "Fair Use" isn't an issue. If you wish to argue that it *is,* in this particular case, than I repeat Mr. Weg's tacit acknowledgment that I "[didn't] use the entire posting." No copyright violation here.

C'mon, I gave him free publicity, not only by relating his accomplishment, but by a quick check of his background to ascertain -and subsequently documenting- his qualifications in my quote. For this I should be sorry?

"Houston, what *is* the problem?"

…you'd have committed an ethics violation that could result in your removal from the list, or worse.

- Emphasis added.

Such as…? roll

Evidently, "no good deed goes unpunished," eh?

-AWTLPI

BTW I believe we've gotten *way* off-topic from the original post. I suggest we get back on-topic or take this new slam-fest off-line (feel free to PM me) or start an appropriate new thread.

And let's get back to being professionals.

-AWTLPI

Well, what an interesting thread.

One question I pose to those in favor of PI licensing is what other fields, wherein someone may find themselves testifying as an expert, is someone required to be a PI?

Doctor?
Engineer?
Home Appraiser?
Accountant?
Ballistics expert?

My guess is that the argument to the above is that some are licensed in another way. True, but not all of them. But if you want to license computer forensic professionals then let's work to licensing computer forensic experts in such a way that doesn't require them to take exams and apprentice in fields that have nothing to do with computers. Otherwise, you have people "licensed" to perform a task but in reality have no clue as to what they are doing. A false sense of security is spread by this mistake.

Next, I believe someone pointed out that one of the reasons for the discussion on licensing in SC is that the chief of SLED for SC said that there had been "botched "forensics"". Is PI licensing really going to solve that problem considering that, as someone pointed out, there is nothing in the PI requirements for SC that deals with forensics? I have seen over the last 6 months more than one software application directed to the PI community that claims it will automatically give them all sorts of computer information, all for $25. Do you really think those applications gather all of the appropriate evidence? Do you think that the non-computer educated PI will be able to interpret it correctly? Again, PI license and a cheap application in the hands of someone without experience equals a false sense of security.

Someone also pointed out that a judge in GA was weary of being the gatekeeper because he wasn't sure what he was "gatekeeping". Well, I think that judges should become educated on this topic because it isn't just forensics, it's e-discovery too. Voire dire and Daubert are tested tools that are available to the courts and should be used. Licensing as a PI is not a tool to validate to the court that the evidence or opinion presented is valid.

Another point was made that we are doing similar work to PIs because we are investigating personal data on a computer. Maybe, but before I examine that computer, I am given permission to do so through either a court order or the owner of the computer. I am not investigating a computer without someone who owns the contents knowing that I am doing so. Most, if not all, reputable forensic companies do the same. Do you think that a PI license is going to strengthen this aspect? Furthermore, there are state and federal laws that can be used to punish me if I either analyze a computer that I do not have a right to or if I expose information that should not be exposed.

Let's not fit a square peg in a round hole just because one thinks it will solve a problem. It could end up creating more problems.

Greetings,

I'm all for developing certification and licensing specifically for examiners. However, I am getting a bit frustrated with the people who say that the PI training and exams have no bearing on computer forensics examiners. Go pick up one of the study guides for a PI exam and read it with an open mind. There's a lot that applies to both PIs and CFs such as interviewing, investigations, and legal processes.

And the whole "we're not investigators" line simply doesn't hold water for me. Look at all the CF book and article titles with "investigate" in the title, or a chapter about "investigations".

Accept it, we're often investigators in many senses of the word.

And getting a PI license isn't that difficult. If the people who've been whining for the last three years about it had started on getting a license then, they'd have one now and would have a leg up on their competitors.

-David

However, I am getting a bit frustrated with the people who say that the PI training and exams have no bearing on computer forensics examiners.

I'm sure that there are items in the PI exams that have a bearing on investigations in general as a PI is a Private Investigator. But are there questions that test ones knowledge of computers or more specifically computer forensic techniques in the PI exam? The perception created by PI licensing being required to perform computer forensics is that someone licensed as a PI is going to be capable of performing those tasks just by having that license.

And the whole "we're not investigators" line simply doesn't hold water for me.

Yes we are investigators, but what we do does not fall under the definition of a PI. A certified fraud examiner is an investigator, but they are not a PI, they are a CFE. A law enforcement officer is an investigator, but I am not required to pass their exam to do my job because in the same way that a PI performs many other tasks that are not pertinent to what I do, a member of law enforcement performs many other tasks that are not pertinent to what I do.

And getting a PI license isn't that difficult.

Depends on the state in which you reside. In some, you (or someone in your company) have to have been prior law forcement, have a degree in criminal justice or apprentice under a PI for X years. If I was in a state where that was a requirement, while I am quite qualified to be a computer forensic examiner, I would all of a sudden be out of a job unless I wanted to get a new degree or apprentice under someone (possibly for minimal pay). To take it a step further, think of someone that lives in one state that does work just over the boarder in the next state. The other state has enacted a PI law and it requires you to be a resident to get such a license, no reciprocity. You are now out of a portion of your revenue.

If the people who've been whining for the last three years about it had started on getting a license then, they'd have one now and would have a leg up on their competitors.

We already have a license, regardless of our belief that it is irrelevant to the work we perform, and we don't whine.