Your phone rings. It’s a potential client who needs digital forensic services. There is only one problem, they don’t live in your state. Can you take the case?
You know that some states require digital forensic examiners to have a PI license. Other states require a license under certain circumstances, and some do not require a license at all.
The whole licensing issue can get really complicated very quickly. Even if you think you know the law, encountering a different or unusual situation could make things ambiguous. As a result, the simplest way to deal with licensing questions is to hire a lawyer.
Unfortunately, hiring a lawyer isn’t always possible due to cost or a myriad of other reasons. If you must go it alone, here are the legal research steps I would take.
1. Clearly define the facts of your situation.
- Is this a civil or criminal case?
- Is it a federal or state case?
- If the case has been filed in court, where is the court?
- Will any part of the work need to be done in the other state?
- Who are you employed by?
- What type of work are you being asked to do?
- Collection only?
- HR Investigation?
- Incident response?
- Is your expertise rare or are there other licensed people in the state who could competently perform the work?
Any of the above facts, and many more, could have an effect on whether you are legally required to get some type of license.
2. Read secondary authorities in order to collect applicable statutes, cases, and regulations.
Secondary authorities include any sources that are not legally binding, but they are the best way to get a general overview of the laws.
The best secondary authority I’ve found related to licensing for digital forensic examiners is To License or Not to License Reexamined: An Updated Report on State Statutes Regarding Private Investigators and Digital Examiners by Thomas Lonardo.
I recommend reading the whole journal article. However, if you’re in a pinch, just search for the name of the state you are interested in. The article is a treasure trove of relevant statutes and regulatory opinions. Make a note of the ones related to your case.
Another good secondary source is a survey done by Kessler. The survey was sent to every state agency responsible for enforcing PI licensing. In it, they were asked for their official position on digital forensic examiners and PI licenses. Click on a specific state to read the response. Just remember, opinion letters are not binding. Agency’s official positions can and do change for various reasons.
Finally, it’s always a good idea to perform a general Google search to see what pops up, but you didn’t need me to tell you that.
3. Read primary authorities (statutes, cases, and regulations).
Once you have a general idea of what the law might be in a particular state, now it is time to go read the applicable statutes, regulations, and cases. You should never rely on secondary authorities alone. They could be wrong, outdated, or both.
Most states have websites with all of their statutes online. Pay attention to when they were last updated. There may be some recently passed statutes that have not been codified yet, but these can usually be found on the website as well, in a different location.
There are several websites containing case opinions. Google Scholar is one of my favorite as it will show other cases which have cited the one you are reading. This is very important because cases can either by affirmed or overruled by higher courts. If your case has been overruled, then it’s not good law anymore.
If you find any cases directly on point or discussing similar issues, pay particular attention to how the judge applied the law to the facts of the case.
4. Apply the law to your specific facts.
Now, pretend you are a judge deciding your legal question. Take your understanding of the law and apply it to your specific factual situation. Try to be reasonable, consistent, and true to the intent of the law. In the end, the best you can do may be to make an educated guess. Better lawyers can make better educated guesses, and more importantly, they are skilled at persuading a judge to agree with them.
Unfortunately, there are no easy answers, but these are the steps I would use to research a digital forensic licensing legal issue. Please understand that lawyers go to school 3 years to learn how to answer legal questions, so it’s impossible for me to put 3 years of education into one blog post.
If nothing else, after doing a little legal research yourself, I hope you will see why getting free “legal advice” from an Internet forum or email list is not a good idea. A systematic approach should always be followed to answer even apparently simple legal questions.
As always, this blog post is not meant as legal advice. It is general information to help those who cannot/do not hire a lawyer. If you perform these steps, you are acting as your own lawyer. To avoid making legal research mis-steps, I recommend consulting other longer resources like The Process of Legal Research.