~ the link between drug use and identity theft ~

A Washington State U.S. Senator is requesting the U.S. Department of Justice undertake a national study on the criminal connections between identity theft and illicit drug use. Police are reporting that in one county, 90 percent of the ID theft suspects had prior methamphetamine charges. Could the intractable problem of drug addiction and its destructive reverberation throughout the society pose as great (or greater) threat to financial information privacy than the Choicepoint data leak? Once again, an ID theft cause that can't be legislated away through restricting database record aggregating. Read the article




identity theft

~ find a cell phone - find a witness ~

Increasingly it's the case that people, especially "young people" (My neighbor's description of me. And it wasn't that long ago!), use only cell phones and not landline telephones. If you're trying to reach a witness or just want to talk to someone away from home you might consider the statistics from a study by NOP World, from TracNotes.

New Study: 44% of U.S. Teens and Pre-Teens Have Wireless Phones - Almost half of the nation’s 10-to 18-year-olds own a mobile phone, according to a new study
released this week by NOP World Technology, a market research firm. Furthermore, ownership among 12-14 year olds increased from 13% in February 2002 to 40% in December 2004. The majority (73%) of 18 year olds own cell phones as well, a 15% increase from 2002, and three-quarters (75%) of 15-17 year olds also carry cell phones, up from 42% in 2002.

If you're licensed as an attorney or investigator, or work for a government entity I can send you a list of vendors that provide these records.

telephone information

~ the rights of juvenile sex offenders and everyone else ~

Various Illinois police departments forgot to tell school Principals the names of the juvenile sex offenders enrolled at their schools. Some law enforcement agencies refused to give notification even though state law allows them.

Some principals were not told that young sex offenders had enrolled in their schools, because the state system designed to notify them is mired in confusion, according to a Tribune investigation. While the list of Illinois' adult sex offenders is accessible to anyone on the Internet, a similar registry of about 1,100 juveniles who have ommitted sex crimes is largely kept secret. Read the article [avoid subscription: privacy1st@mailinator.com/tribune]

One Chicago school Principal, turning over the various security responses the school might take, expressed a concern for the students' privacy rights. He means the offender.

~ watch your wallets - more on identity theft ~

The closure of records and government regulation can't blunt the most pervasive cause of identity theft: the sticky fingered housemate. According to a 2005 report by Javelin Strategy, working with the Better Business Bureau, in the cases where the method of the theft was known, a whopping 62 percent were from sources not online.

The recommendation? Get a shredder.


identity theft

~ law enforcement dumpster diving in Indiana ~

Just who owns the garbage at the curb is an issue in flux. In a prior posting I highlighted the U.S. Supreme Court and some state court opinions on the matter, showing that a few states contravene ("have a higher standard") the Federal cases. Add Indiana to that short list.

Indiana Law Blog reports on a recent (need I say, drug related) case, Patrick & Susan May Litchfield v. State of Indiana, in which the Indiana Supreme Court questioned whether the police had "articulable individualized grounds for suspicion that the Litchfields were involved in illegal activity" or were just tipped off by the DEA.

We hold that a search of trash recovered from the place where it is left for collection is permissible under the Indiana Constitution, but only if the investigating officials have an articulable basis justifying reasonable suspicion that the subjects of the search have engaged in violations of law that might reasonably lead to evidence in the trash. Read the decision

Apparently, if the police didn't see them put the drugs there, the police can't go snooping. Next, law enforcement may have to get a search warrant to go through the trash. This determination shouldn't affect civilian dumpster diving. Many an impoverished soul has found this to be a tried and true method for getting great furniture. The case is remanded to the trial court. Stay tuned for further clarification. Read an article

[Thanks to Sanford Glickman, Glickman Investigations, for bringing this to my attention.]

Some recent state decisions arguing there is no reasonable expectation of privacy in trash collected:

District of Columbia: CATHERINE DANAI, APPELLANT, v. CANAL SQUARE ASSOCIATES, APPELLEE, December 2, 2004, Decided

Ms. Danai filed a claim for invasion of privacy against Canal, alleging that Canal removed a discarded letter from her trash and used it against her in the possession lawsuit. The trial court granted summary judgment in favor of Canal. We affirm the judgment of the trial court, and hold that Ms. Danai had no reasonable expectation of privacy in trash collected from her office and placed [*2] with other office trash in a locked community room under the control of property managers for ultimate disposal off-site.

Georgia: SCOTT v. THE STATE, November 1, 2004, Decided

Scott contends that the trial court erred in denying his motion to suppress. Specifically, he argues that the warrantless search and seizure of the garbage bags were illegal and a violation of his Fourth Amendment rights because the bags were in garbage cans which were not at curbside but instead within the curtilage of his house. We disagree.

fourth amendment

~ Michigan criminal offenders online ~

The Michigan Department of Corrections had a good idea when it placed a criminal convictions database on the Internet. Now they want to block access by the public because it has been used to conduct background checks. Now, what exactly is wrong with that?

Corrections trying to change access to offender database
March 26, 2005, 11:11 AM
DETROIT (AP) -- Michigan Department of Corrections officials have postponed a plan to remove the names of 215,000 ex-offenders from their online database after some in law enforcement said the system was a useful crime-fighting tool.

~ police personnel records ~

Police personnel records many be available in Arizona under state law.

~ it's illegal to observe the government ~

An Illinois state law prohibits activity that monitors its government. In preparation for his documentary film, which was broadcast on public television, Patrick Thompson was filming police as they made traffic stops. The police seized his film and the District Attorney charged the scofflaw with eavesdropping. It's disturbing. The right of people to monitor, observe and collect documentation on the operation of their government should be written into every state constitution. How can we maintain a democracy if activity that doesn't interfere with the police or other government operations is illegal?

Filmmakers' documentation of police stops runs afoul of snooping law

For years, Illinois law has prohibited recording conversations unless everyone agrees. The state Legislature toughened the law 10 years ago, removing an exemption that allowed conversations to be recorded if they took place in public.

illinois open government

~ search legal journals ~

The legal periodicals index, LegalTrac, is free through some libraries. This extensive index is searchable by keyword or periodical and returns citations, and sometimes an abstract. I wrote about this tool in January and mentioned other valuable library sources.

A keyword search through LegalTrac on the phrase "private investigator" returned 27 citations, from 1984 to the present, from prominent publications, including California Lawyer, National Law Journal and Bench and Bar. Here's one abstract.

The National Law Journal, March 10, 1997 v19 n28 pA1 col 2 (63 col in)
Use of private investigators by lawyers on the rise; but sleuths say many attorneys don't know how to use them effectively. Loren Stein.
Abstract: The success of both civil and criminal litigation depends more on a partnership of lawyer and private investigator as litigation grows in complexity. Demand for investigators to perform services in addition to the ones they used to be responsible for has increased and according to one survey their use has increased 40% in the last 5 years. Advantages of using investigators include their decreasing the pretrial discovery process and their ability to testify as neutral witnesses to a jury.

~ DNA clears suspect - but then what? ~

A DNA sample of a suspect cleared him of any crime but the man was not told why he was considered a suspect. Society and individual liberties are better served by making government records and activity more transparent. If the suspect can know that he was cleared why can't he know the reason he was considered in the first place? Perhaps the government intrusion that disrupted the suspect's anonymity was necessary. Exposing the the whole process to the light of day better serves the interests of the public in being able to monitor their government, while, at the same time, more convincingly relieving this individual from suspicion and any possible aspersion to his character. A letter from the law enforcement agency would be nice... Read the story in Slashdot.

~ PACER adds a new feature to their SSN search ~

A search on bankruptcy filings through PACER (the Federal Courts online index) is possible using only the last four digits of a social security number. But if you obtain a SSN through a database provider only the first five numbers may be displayed. Reported at LegalDockets.

DATABASE: cluster your searches

The free search engine, Clusty, creates some order in the Internet chaos by grouping Websites with your search terms into named folders. Search on the term "privacy", limited to gov domains, and a column of expandable folders appears named, "privacy policy", "regulation", "surveillance" and a dozen others. Other limiters are the Web, news and wikipedia (a wide-ranging web encyclopedia).

search

~ law firm supports privacy representative ~

Do you want to influence the outcome of the "Information Protection and Security Act'' (H.R.1080), sponsored by Rep. Edward Markey? His largest contributor is the law firm Piper Rudnick LLP, which contributed $30,000 to Markey.

H.R. 1080 defines information broker.

The term "information broker'' means a commercial entity whose business is to collect, assemble, or maintain personally identifiable information for the sale or transmission of such information or the provision of access to such information to any third party, whether such collection, assembly, or maintenance of personally identifiable information is performed by the information broker directly, or by contract or subcontract with any other entity.

Here's one of the broad, unexamined provisions that would add to the FTC regulations.

allowing an individual the right to obtain disclosure of all personally identifiable information pertaining to the individual held by an information broker, and to be informed of the identity of each entity that procured any personally identifiable information from the broker; [SEC. 3. REGULATION BY FEDERAL TRADE COMMISSION. (a)(B)]

regulation

~ births and driving won't be the same ~

The fine details on the Federal "Intelligence Reform and Terrorism Prevention Act of 2004" are yet to be etched but will be fought over because of long-standing fears of a national identification card. The bill requires states to establish national standards on driver licenses to reduce fabrication of licenses. Read an article

The Act also requires the states standardize birth certificates. A troubling note in the report reveals a potential dark cloud on the horizon.

Concern has been expressed that this provision may have an impact on genealogical and other historical research involving access to birth records. However, what exactly that impact will be appears dependent on precisely how the regulation is ultimately drafted. For example, it is possible that the regulations could be drafted in such a way that will make it difficult for genealogical researchers to obtain birth certificates without express permission or authorization from the person or persons whose records they are seeking.

regulation id government

~ DATABASE: Internet personal info - all in one place ~

The privacy advocates are displeased with the reformatted people search engine, ZoomInfo, which culls Internet pages by individual names that are associated with a company, bringing them together in one document. The document includes posted resumes and periodical articles. If the subject of the search wants to make a change (a "correction") they first verify their identity with a credit card. Preston Gralla, co-author of The Complete Idiot's Guide to Internet Privacy and Security had this anti-technology observation.

"Just the act of collecting all this information, you could consider it an invasion of privacy."

Ah, excuse me, but this is material that is already available on the Internet. But there's no pleasing the privacy extremists. On one hand they want people to be able to "correct" their own data housed in the commercial databases but, apparently, not the data on the Internet. Read this detailed article.

~ opponents of database records access ~

Emergent Chaos is tracking articles and blog postings on ChoicePoint. There's been quite a roil between the various advocates for closure and the few of us in opposition. Probably, the only value of all this attention is getting a mention of a recent topic on PI News Link.

Your PI News hopes that backsplash from Choicepoint's errors won't crush the PI industry in "Public Thoughts on Privacy."

I guess it was a good title.

I couldn't stop myself from getting into the fray.




choicepoint privacy databases

~ state statutes on public record access ~

The Citizen Access Project run by the folks at the University of Florida, College of Journalism, provides a listing by state of the various statutes on public record access, allowable fees and the policy on destruction of records.

~ new PI bloggers ~

Michael Thomas of Caveat Research, a Washington, D.C. investigative firm, stumbled upon PI News Link through a posting at LegalDocketsOnline about my Public Thoughts on Privacy entry. I wish him well, no caveats needed.

~ medical doctor license sites reviewed ~

Not all online databases of licensed medical doctors are equal. Public Citizen surveyed the individual state sites and compared them for extent of content and usability. Only 7 states met all their criteria. This chart compares how the states measured up in each category. The report explains each area measured, the changes since the 2000 year study and provides recommendations.

The type and extent of disciplinary information varies from state to state.

Forty-four boards provide the date that the disciplinary action was taken. Thirty-nine boards provide at least 10 years of disciplinary information.

All 51 state medical boards now have Web sites and 49 of them provide some doctor-specific disciplinary information on the Internet. However, 45 state medical boards continue to provide disciplinary information whose content or user-friendliness is inadequate compared to the six states that received an "A" in both categories. In two cases, such information was entirely absent.

The six states that received an "A" for content and usability: Arizona, Maryland, North Carolina, New York, Ohio and Virginia.

California, Florida, Idaho, Massachusetts, and Tennessee boards provide data on malpractice claims, which was not part of the study. 39 out of 51 medical boards provide 10 years worth of disciplinary actions.

The Federation of State Medical Boards database of disciplinary actions is overpriced and inflexible. This site demonstrates obtuseness by Medical Boards, not transparency.

Speaking of obstacles to information on physician disciplinary actions the Department of Health and Human Services had this unreferenced statement at their National Practitioner Data Bank site:

[NPDB] Is prohibited by law from disclosing information on a specific practitioner, provider, or supplier to the public.

Is this a "privacy" regulation, keeping the public uninformed about malpractice claims against physicians?

The National Practitioner Data Bank explains its purpose:

The National Practitioner Data Bank (NPDB) and
Healthcare Integrity and Protection Data Bank
(HIPDB) are information clearinghouses created
by Congress to improve health care quality and
reduce health care fraud and abuse in the U.S.
The NPDB receives and discloses information
related to the professional competence and
conduct of physicians, dentists and, in some
cases, other health care practitioners.

Apparently, the state licensing agencies can decide what gets released to the public. The collection of Federal entities that run the NPDB offer this enlightening mission statement.

The Data Banks are used to inform health care organizations -- such as hospitals, health plans, and health care regulatory entities (e.g.,State licensing boards) -- that an in-depth review of a practitioner's past actions may be prudent. Organizations use Data Bank information along with data from other sources when considering a practitioner for clinical privileges, employment, affiliation, or licensure, or reviewing a practitioner's records. To request information from, or "query," the Data Banks, organizations must be legally authorized to do so and registered with the Data Banks. The general public may not query the Data Banks.

medical records

~ open government is a secure one ~

A rare piece in any form of media these days, Has Security Become an Excuse for Govn't Secrecy?, written by Tom Regan in the CS Monitor, gives a smattering of positive reports on the proposed Open Government Commission.

~ public defender pride ~

We know the challenges and rewards of criminal defense investigations but the rest of the world doesn't see our perspective much. Sanchovilla is blogging about it over at Tales of a Public Defender Investigator. Here he's relating the influence of Tink Thompson's book.

That book opened up a new world for me. A world where the good guys didn't always wear a badge and carry a gun. In my world the good guys just have a pen, a notebook, and their own common sense. It opened my eyes to the idea that defense investigators could (and should) be a more cerebral bunch than our DA counterparts. We don't (and can't) open doors and get people to talk to us with a badge and gun, we open them with our minds (not literally of course), our desire to get the truth, and sometimes, sometimes even a little smile and charm.

~ public thoughts on privacy ~

The Congress and the data aggregators are moving quickly to address the issue of the "sale" of social security numbers. I'm using this space to update you and present some solutions to the vexing tension between computer reliant identity theft and fraud, and the necessary, legitimate access to SSNs.

Lexis Nexis, Choicepoint, Accurint, IRB and Westlaw have all now instituted a policy of truncating the viewing of social security numbers in their databases. However, each system will still use the SSNs to search their database, cross reference the SSN with an address and then provide aggregated information. The search mechanism will work much as before and will meet the needs we and our clients have 90 percent of the time. You won't be able to secure a SSN and rerun it through another provider.

Choicepoint is scheduling site visits at small businesses to ensure that there is a match between the applicant and the proprietor and that the office is not within a home (it can be a separate detached building). This is a standard due diligence which any of us would typically do for our clients and Choicepoint could have done long ago, particularly after the first compromise of their data 5 years ago. This is water under the bridge. There's no point in looking back, wondering "what if...", or blaming the big boys for the fallout private investigators are experiencing.

Both of these measures are healthy, self-regulating but low cost approaches to foiling those who would use the databases for illegal purposes. Choicepoint is charging its customers $100 for the site visit, which is reasonable considering the geographical area they will have to cover and the added paperwork.

We are a resilient industry, if unappreciated by some of the very people we can help, including the privacy advocates and the state and Federal government agencies. Our services are utilized by governments, businesses, attorneys and individuals all in need of solving objective information needs and sometimes personal problems. We've been legislated out of access to many types of records that our government maintains: motor vehicle, voter registration and, in some cases, police reports, to name a few (see recent posting, Kern County Redacts Police Reports) . We're barred from obtaining credit reports, which are privately maintained. But we're still here, serving our clients and making a living.

The Federal government is attempting to strike a balance between displaying personal identifiers in their electronic case management systems (see my prior post, PACER - Federal Courts and Social Security Numbers) while still making the case documents available. The Internet has made a field of personal information accessible to many people but the technology of securing this data has not kept pace. For more discussion on technological solutions to this quandary see Dennis Bailey's site, OpenSocietyParadox.

Properly balancing the public's right and responsibility to monitor its government through free access to information it gathers, with the tendency of the same governments to chip away at civil liberties is a longstanding, ongoing vexatious challenge in a democratic society. The difficulty we face is the combustionable alliance of the absolutist privacy advocates who seek personal invisibility for citizens, with the politicians who respond to vote-getting, short-sighted proposals.

A hue-and-cry is emanating from almost all of the mainstream media and the blogging sphere but little light is leaking out. Some, seemingly off-handedly, with little consideration of the consequences, recommend allowing access to SSNs only if the holder of said SSN authorizes it. Then there's the chairman of the House Energy and Commerce Committee, who's also impulsively voicing interest in a ban on the availability of Social Security numbers without the permission of the owner of the number, except when needed by law enforcement. Mr. Gracie at ThoughtMarket doesn't seem to realize that the information and financial industry is already regulated.

Mark Rotenberg, President of EPIC infers in his Congressional testimony that under current FTC rules action should be taken against data providers for inaccuracies in their database or the distribution of accurate information that affects employment.

The FTC has also failed to pursue claims that it could under section 5 of the FTC
Act that prohibits unfair practices. Practices are unfair if they cause or are likely to cause consumers substantial injury that is neither reasonably avoidable by consumer nor offset by countervailing benefits to consumers and competition.30 It may be that the unfairness doctrine could be applied in cases where there is no direct relationship between the consumer and the company, but to date the FTC has failed to do this.

Additionally, he recommends that the data providers notify the consumer when information on them is accessed, in order for the consumer to correct any errors. While accuracy is to our benefit as well as the consumer's, this proposal creates an extraordinary financial burden on businesses as well as compromising the security of those that Rotenberg aims to protect.

It is even conceivable that Congress could mandate that information brokers provide to consumers the same information that they propose to sell to a third party prior to the sale. This would make consent meaningful. It would promote record accuracy.

Of course, the electronic access issues are not limited to data providers. There have been unauthorized leaks of personal information from the computers of such giants as Bank of America. And many people have willingly posted their own SSNs on the Internet. Computer scientists are looking for technological solutions, which must go hand-in-hand with government regulation of its uses, along with a check on the misuses to which government may apply these technologies.

Although this topic affects the legal community, there is little in the way of commentary that has found its way onto legal blogger sites. David Canton expresses a restrained view. Robert Ambrogi doesn't offer any of his own opinions but refers the reader to the recent EPIC posting of FBI documents. LegalMinute thankfully has more text on his/her musings than on the news stories and is in accord with our point of view.




identity theft regulation

~ the danger of records behind closed doors ~

The Reporters Committee for Freedom of the Press (RCFP) cites an article in the Orlando Sentinel that points out how secrecy in government records makes us more vulnerable, not less. [Thanks to Gregg Leslie, RCFP now has an RSS feed.]

~ FTC statement to Congress on identity theft ~

This came across my desk by way of ResourceShelf. The Federal Trade Commission presented prepared remarks on March 10 to the U.S. Senate Committee on Banking, Housing and Urban Affairs. The FTC Chairman (as she identified herself), Deborah Platt Majoras spoke on the topic of data brokers. I knew you'd be surprised. She gives a synopsis of the types of information data aggregators retain and who has access to the information under FCRA and GLB. Majoras makes one curious inference that I've seen elsewhere. She suggests that credit card numbers are available among the non-public information held by data brokers. This is flat out incorrect. Is this your interpretation of her comment? Read the remarks

identity theft

~ Kern County redacts police reports ~

Court to keep files secret (circumvent subscription, login: emmanuellewis/webster)
Citing privacy concerns, Kern will hide details of criminal cases from public
By AMY HILVERS, Californian staff writer
e-mail: ahilvers@bakersfield.com
Posted: Friday March 11th, 2005, 10:30 PM
Last Updated: Friday March 11th, 2005, 10:55 PM
Kern County courts are set to start sealing all police reports in criminal cases Monday, vastly limiting information the public learns about crimes.

Apparently the State Senator, Dean Florez, who sponsored the restrictive legislation, isn't too pleased with the way the District Attorney has overreached the intent of SB58 in removing all police reports from the public record, including court files.

SB58, which was passed and signed into law in the 2004 legislative session, states, in part:

SB 58, Johnson. Police reports: confidentiality. Existing law provides Californians with a right of privacy. Existing law regulates the dissemination of personal information heldby government agencies. Existing law exempts courts from the provisions of the California Public Records Act and permits a court to seal records and redact information from them. This bill would require the district attorney and the courts in each county to establish a mutually agreeable procedure, as specified, to protect confidential personal information, as defined, regarding any witness or victim contained in a police report, arrest report, or investigative report that is submitted to a court by a prosecutor in support of a criminal complaint, indictment, or information, or by a prosecutor or law enforcement officer in support of a search warrant or an arrest warrant.

This bill is incorporated into the California Penal Code Section 964, with the explanatory language that we've all come to expect.

In order to protect the safety and privacy of victims and witnesses of crimes, to encourage witnesses to come forward and report crimes, and to combat the efforts of identity thieves to obtain the personal identifying information of California citizens, it is necessary that this act go into immediate effect.

Exactly when did identity thieves start collecting police reports? Why isn't there an exception for private investigators and journalists? Did the District Attorney convince Senator Florez that criminals were using police reports to get victim's names, then intimidate them? Huh, like they need to do that. The knuckleheads already know the witnesses against them: their neighbors, rival gang members, their girlfriends....

Constituents of Senator Florez need to pay him a visit. Immediately. Take action before every county in California has new policies in place. Meet with your District Attorney and clarify their interpretation of SB58.

government records

~ Louisiana legislation affects private investigators ~

There are two House bills in the Louisiana legislature that could curtail the work of private investigators and subject them to torts, even when operating at the direction of an attorney.

HB51 amends the anti-stalking law, changing the language to a less explicit definition of stalking that could snare a PI conducting a legal surveillance.

Stalking is the [former language: willful, malicious,] [replaced with: intentional] and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress.

HB45 will require PIs to notify the police prior to conducting an investigation (which is not defined).

Provides that private investigators shall furnish certain information to the police or sheriff prior to beginning an investigation.

Prior to passing any stupid law the legislature should be required to notify their constituents, so they can be voted out of office.



legislation

~ open government foils terrorists ~

The September 11 attacks on human life and the national security have since been used to limit citizen access to government records. Private investigators are mostly just citizens when it comes to FOI rights to obtain government documents. So we have received very little professional access. But even the 9/11 Report acknowledged that more access can lead to more security.

Rebecca Daugherty, a Director at the Reporters Committee for Freedom of the Press (RCFP), noted, in a recent email, the absurd logic the government is applying to release of information.

The 911 Commission findings were that a major contributing factor of 911 was the failure of sharing knowledge on the part of various public agencies -- with each other of course, but they also failed to share with the news media, which in turn relayed little of the growing threat to the public, which in turn knew virtually nothing about escalating Islamic terrorism. And the result of 911 has been, across the board, demands for more secrecy. I wondered how extreme we're going to get here if we keep demanding public ignorance in the fear that terrorists might learn something. Should we stop teaching reading in the public schools?

The 9/11 Commission Findings stated:

But the security concerns need to be weighed against the costs. Current security requirements nurture overclassification and excessive compartmentation of information among agencies. Each agency’s incentive structure opposes sharing, with risks (criminal, civil, and internal administrative sanctions) but few rewards for sharing information. No one has to pay the long-term costs of over-classifying information, though these costs—even in literal financial terms— are substantial. There are no punishments for not sharing information. Agencies uphold a "need-to-know" culture of information protection rather than promoting a "need-to-share" culture of integration.15 Read the report

freedom of information

~ sunshine week reports - news stories on public records ~

Even as the Congress is about to revisit and hear proposals to expand the Freedom of Information Act (FOIA) come these reports about governments narrowly interpreting FOI.

Since 1998, many federal departments have been reducing the amount of information they release to the public - even as the government fields and answers more requests for information than ever, an Associated Press review has found.

The locations of stores and restaurants that have received recalled meat, the names of detainees held by the U.S. overseas and details about Vice President Dick Cheney's 2001 energy policy task force are all among the records that the government isn't sharing with the public.

The tightening began even before the Sept. 11 attacks, and now government defenders say the nation needs protection from its enemies in the war on terror. But open government advocates worry that U.S. citizens' freedom is eroding with every file they can't access.

"This is an immensely troubling clampdown," said Steve Aftergood, director of the Federation of American Scientists' Secrecy Project. "The law itself is unchanged, but it's being interpreted more broadly to withhold more information."

And from New York...

Freedom of Information laws can unlock the door to government records. But opening the door may require filling out a formal request and being not only patient but persistent in a search for documents, local sources said last week.

And more from New York on access to police records.

Idaho journalists with the FOI in hand uncover flaws in a court record keeping system.

A file that was sealed by agreement of parties and a file that had never been sealed both somehow entirely disappeared from the public access computer system, apparently as a result of a less than optimal computer program.

The public has benefited greatly from the intervention of the Post Register into these matters. But for their efforts, we could have gone years before discovering that vast amounts of what should have been public information (not just the Scout cases, but many others) was being mistakenly hidden from your view.

Louisiana uses September 11 as a excuse for withholding public record information.

Citing a need for protection from terrorists, Louisiana's lawmakers are allowing public agencies to hide a much wider array of documents from public view since the Sept. 11, 2001, attacks.

Here's an article that lists Sunshine events and guides to getting government information in Hawaii.

The media rely on the open government laws in Michigan to uncover the day-to-day workings of local governments but legislators are weakening the access laws..

Wisconsin has a subjective balancing test for release of records.

Share your Sunshine and anti-Sunshine news in the comments section.

~ the fight ahead ~

The Electronic Privacy Information Center has private investigators, journalists and anyone who wants to gather personal information, including the public, on their dart board and they're handing out darts to the Congress. Their proposal, which is likely to be delivered to the FTC and Congress, includes the demand (contravening the Supreme Court) that private investigators be restricted from going through people's trash and that "federal, state, and local agencies that maintain public record systems must make substantial efforts to limit the disclosure of Social Security Numbers, phone numbers, addresses, and dates of birth." pdf of the report

EPIC's view of background checks is to restrict businesses. "Background checks should only be performed in contexts where fiduciary relationships are involved, where a large amount of money is handled, where employment involves care taking, or any of the jobs enumerated by the Employee Privacy Protection Act, 29 U.S.C.§ 2007."

Access to police records, court files, social security numbers and third party data are all on the chopping block.

Join NCISS, the national organization working the halls of Congress for the private investigator industry.

~ let the sun shine in - FOI sunshine week ~

It hasn't been too sun-shiny for those of us who believe that democracy requires direct access to our government's paper trail. National Sunshine Week isn't so much a celebration as it is a public awareness campaign of the benefits -- both to the pocketbook and personal liberty-- of open government. Public access to our federal, state and local governments' decision making and machinations is essential to healthy, smooth functioning commerce, exposing fraud and ensuring that government is by and for the people. Democracy hasn't been handed to us and we must agitate to keep it. So advocate for access to government records. Submit a state public records act (PRA) request today. File a Freedom of Information Act (FOIA) request. Then post a comment telling us what you did and the response you received.

The Associated Press site is a first stop information gathering point for listings of FOI organizations, state-by-state litigation, aids for filing FOIA requests and news on Sunshine Week.

Surprisingly, with all the ill informed commentary about privacy, Americans are highly concerned about the lack of transparency in their government. Most Americans are ignorant of organized attempts to shine light into the dark recesses of government. And only 30 percent have ever requested records from a government agency.

A new survey conducted by Ipsos-Public Affairs on behalf of Sunshine Week shows that seven out of 10 Americans are concerned about government secrecy, and more than half think there's not enough access to government records. Read the press release and survey

Pending federal legislation related to open government, privacy and access to records is summarized here.



sunshine week
open government

~ an Apple yesterday tried to take a blogger away ~

A San Jose, California judge steered away from ruling whether blogger journalists have shield law status in protecting sources. James Kleinberg narrowed his opinion to the trade secret infringement issue inherent in publishing known proprietary information. Read the AP story

Online sources ordered revealed
JUDGE SIDESTEPS ONE ISSUE: ARE BLOGGERS JOURNALISTS?
By Dawn C. Chmielewski
Mercury News (subscription)
A San Jose judge ruled Friday that two Web sites have no right to protect the identity of people who gave them trade secrets about an upcoming Apple Computer product.

Judge Kleinberg observed that journalists don't have protection from breaking the law. I would add, unless you're powerful or of service to those who are. What's happen to the one journalist, Robert Novak, who knows the source of the identification of Valerie Plame as a CIA agent? A time line on the identity leak is here and the Daily Kos has a recent posting. Slate explores the question of blogger journalism.




journalism

~ save social security number access for private investigators ~

Our superduper PI advocate, Francie Koehler tells it like it is, providing a clear, everyday example of how private investigators use the social security number to solve legal cases.

Those who rely on these consumer databases to do their jobs worry about losing access. Francie Koehler, a licensed private investigator based in Oakland, Calif., said her organization, the California Association of Licensed Investigators, believes there should be stronger penalties for illegal access of databases and stronger requirements for access.

"Unfortunately, [the SS number] has become a national identifier and the only way we have of verifying someone is who they say they are. Private investigators spend a lot of time locating people. Unless you have a Social Security number, you can't verify that is the correct person."

For example, Koehler recently handled a background check of a potential witness who had falsified his graduate school credential.

"Without a Social Security number, you can't even check that," she said. "To eliminate that as a possibility would create some problems within the legal community." Read the article

background checks

~ oowee - Tamara Thompson hits the big time! ~

Okay, maybe it's a bit of an exaggeration but it caught my attention! Finally, a media account of the field of investigations AND the topic of privacy that reflects well on all private investigators. The Contra Costa Times profiled yours truly, with a frontpage article titled, Privacy predicaments catch gumshoe's eye (subscription!). Thanks to Dan Laidman, the reporter, who obligated me to spend hours with him at cafes, drinking coffee. On the issue of privacy...

"I definitely encourage people to take action to protect their access to information," she said.

A key theme of the blogs is that privacy concerns should not lead to the across-the-board restriction of information. Thompson says there is a distinction between a licensed investigator's work and that of a firm like ChoicePoint, the data-gathering company currently embroiled in scandal because it apparently sold personal information -- including data on some 30,000 Californians -- to criminals posing as legitimate businesses.

Thompson notes that when she tracks someone down at another's request, such as a birth parent or former romantic partner, she gives the client's contact information to the person she finds and not the other way around.

"If people want to make a bridge," she said, "we act as intermediaries."

Blogs that mention this article: The Open Society Paradox
privacy private investigator

~ Nevada public records threatened closure ~

It seems that every public figure is looking for a way to jump on the bandwagon for closure of public records. Now is the time to join the organizations that go to court to protect citizen access. I've mentioned some of those groups here and here.

Nevada police want records sealed
March 10, 2005, 07:05 AM

Police officers are asking lawmakers to allow thousands of public employees to request that public records containing some of their personal information be kept confidential. Read the article

~ Senate bill may speed response to FOIA requests ~

U.S. Sen. Patrick Leahy (D-Vt.) and U.S. Sen. John Cornyn (R-Texas) are sponsoring a Senate bill to create an advisory Commission on Freedom of Information Act Processing Delays, which would recommend procedures to reduce the excessive lag in response time to Freedom of Information Act requests (FOIA). Read the press release and bill




legislation

~ PACER - federal courts and social security numbers ~

PACER (Public Access to Court Electronic Records), the online index of Federal court filings, is redacting personal identifiers, in accordance with the privacy policy of the Judicial Conference of 2001. Social Security Numbers in civil, criminal and bankruptcy filings are now truncated to the last four digits.

In 2001 the Federal courts began the process of requiring electronic filing of documents [Case Management and Electronic Case Files (CM/ECF)]. The Judicial Conference determined that it was incumbent upon attorneys filing documents to redact certain information including social security numbers.

Case documents filed prior to the implementation of the privacy rules will not be altered to comport with the new policy. Civil and bankruptcy documents are available through the electronic public access system but criminal filings are not.

Contentcentricblog summarizes the policy related to publishing personal information.

Attorneys also will have to redact certain information from court pleadings before filing them electronically. Last year the Judicial Conference of the United States adopted a national policy barring publication of sensitive information in electronic filings, including Social Security numbers, names of minor children, dates of birth, financial account numbers and home addresses. That information, if necessary to the case, may be filed in an unredacted copy under seal.

Eddy McClain, in his role as past President of the National Council of Investigation and Security Services (NCISS) warned against the rush to remove selected personal identifiers.

All investigations require positive identification of subjects. Courts do not tolerate incomplete evidence and investigators must constantly be able to differentiate between the true subject(s) of an investigation and persons with similar names or identification.

McClain added that while protecting people from identity theft is warranted, there's an unseen hazard in restricting personal identifiers. Referring to bankruptcy records McClain noted, "When a "Robert Smith"files for bankruptcy, the other Robert Smiths of the world have a right not to be confused with the petitioner." I would add, nor risk employment or good will through a false association with a litigant in a criminal or civil case.

The March 2005 update from the U.S. Courts web site on CM/ECF suggests that all of the Federal Courts will have instituted mandatory electronic filing by the end of this year.

CM/ECF systems are now in use in 68 district courts, 81 bankruptcy courts, the Court of International Trade and the Court of Federal Claims. Most of these courts are accepting electronic filings. Over 18 million cases are on CM/ECF systems. And over 160,000 attorneys and others have filed documents over the Internet. Under current plans, the number of CM/ECF courts will increase steadily each month through 2005.

court records

~ most California bay area agencies deny public records act requests ~

An extensive investigation by the Contra Costa Times (subscription) reveals that most California Bay Area public agencies do not respond to requests for their records according to established state law.

During a six-week period beginning in April, the Times sent 20 reporters and editors to agencies across the region. They identified themselves only by name in order to gauge the response to an average person asking for records. State laws governing records access do not distinguish between journalists and the general public.
When asked for immediate access to the records as state law requires, government workers sometimes demanded the reporters' identities and their reasons for wanting to see public documents. [Complete article and documents are here.]

About 50 percent of police agencies withhold the daily incident blotter.

All of the records requested are explicitly identified in the California Public Records Act as public documents, available on demand.

~ why your neighbor's garbage is yours, or not ~

The 1988 Supreme Court case California v. Greenwood found that garbage placed at the curbside was public property. The 1998 U.S. Supreme Court opinion in Redmon (US DOJ brief), a case that originated in Illinois, affirms the Court's earlier finding and expands the definition of curbside.

Recognizing the "fact-based" nature of the Fourth Amendment issue presented in this case, the court of appeals declined to "fashion some convenient rule to fit all situations." Pet. App. I, at 5. Instead, the court looked to "all the factual circumstances of this case" in order to determine whether petitioner had an "objectively reasonable expectation of privacy in the garbage cans placed" in the common driveway near his garage. Id. at 6-7. Relying on this Court's decision in California v. Greenwood, 486 U.S. 35 (1988), the court of appeals concluded that petitioner did not have such an expectation of privacy in his trash. Pet. App. I, at 10. The court explained that, like the defendant in Greenwood, petitioner had left his garbage in an area that was "very publicly exposed and accessible," and had manifested his intent to abandon it by putting it out for collection by strangers. Pet. App. I, at 11-12. While the defendant in Greenwood had left his garbage cans at the curbside, the court held that the area outside of petitioner's garage was the functional equivalent of the curbside area in Greenwood. Id. at 10; see also id. at 8-9. The court also rejected petitioner's contention that the police needed a warrant to inspect his garbage because the trash cans, as they sat awaiting pick-up by trash collectors, were within the curtilage of petitioner's home. The pertinent factors for determining whether an area is curtilage, the court of appeals noted, are "the proximity of the area to the home itself, the nature of the uses to which the [area] is put, whether the area is within an enclosure surrounding the home, and the steps the resident has taken to protect the area from observation by passersby." Id. at 12 (internal quotation marks and citation omitted). "We believe our decision," the court concluded, "passes all the tests." Read the opinion

A recent Washington State Court of Appeals case comes to the opposite conclusion. This is based on prior state law. Interestingly, this case also springs from a criminal drug investigation.

At issue is a portion of the state constitution, which states: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Appellate Judge Frank Kurtz wrote: "Here, Mr. Sweeney had a reasonable expectation that his garbage would be collected from his curb, mixed with other garbage, and taken to a refuse facility." Read the opinion

The published opinion in State of Washington v. Thomas Allen Sweeney summarizes the findings.

A Spokane County detective instructed a municipal garbage collector to place Thomas A. Sweeney's garbage into an empty hopper and drive the garbage truck a few blocks away. There, the detective searched the garbage and found evidence used to obtain a search warrant for Mr. Sweeney's residence. Mr. Sweeney was charged with the manufacture of methamphetamine; but the trial court suppressed the evidence obtained from the search of the garbage and terminated the case. On appeal, the State contends Mr. Sweeney had no privacy right protecting garbage hauled away by the municipal refuse collection service. In response, Mr. Sweeney asserts law enforcement should not be allowed to circumvent constitutionally-protected privacy rights by using another governmental employee to collect garbage for a search. Relying upon State v. Boland, 115 Wn.2d 571, 800P.2d 1112 (1990), we hold the search of Mr. Sweeney's garbage violated article I, section 7 of the Washington State Constitution and affirm. Read the opinion

The Supreme Court case, U.S. v. Dunn identified the four factors that should guide the determination of the curtilage’s extent: "(1) the proximity of the area to the home; (2) whether the area is “included within an enclosure surrounding the home”;(3) the use of the area; and (4) the concealment of the area from the public." Dunn, 480 U.S. at 301

Even shredded documents found at the curtilage are not private. Commercial entities cannot claim that their shredded documents, in a dumpster, 40 feet from public property and on a private road are private, if the business does not "take affirmative steps to exclude the public." (U.S. v. Terrence Hall)

A few other state constitutions, such as New Hampshire's, also have privacy provisions that bar the collection of garbage, other than as refuse, as interpreted by their state courts.

Please add any other relevant cases or corrections to my citations in the comments section.



court decisions
fourth amendment
privacy

~ historical record of information security breaches is dredged up ~

The breaches of the information databases and the reaction in legislation is recounted here.

A series of security break-ins is kick-starting a political drive to reshape federal laws that dictate how companies protect personal information--and what they have to do if that data leaks out.

But, lest it all seem gloomy, this reporter tosses a glimmer of light.

Another wrinkle in the political landscape is the growing reliance of federal watchdogs, such as the Department of Homeland Security and the Department of Justice, on identity-verification services purchased from companies like ChoicePoint and Acxiom. That reliance may make the Bush administration less willing to embrace aggressive regulation in the area.

~ Ohio lawmaker wants to reverse public access ~

An Ohio legislator is seeking to remove the names of weapon permit holders from the public record, one year after the law went into effect.

Representative William Seitz wants to strip the ability of journalists to find the names of concealed weapons permit holders. The Cincinnati Republican says they should not be made public.

~ Illinois law curbs access to criminal records ~

More on the removal of criminal records from the public sphere...

A new law may help former criminal offenders obtain employment by preventing employers from having access to their records. Gov. Rod Blagojevich recently signed Senate Bill 3007, which seals criminal records from being viewed by anyone other than law enforcement officials, said Gerardo Cardenas, the governor's Chicago press secretary.The bill will go into effect June 1 and is an extension of Senate Bill 788, which was signed last year, Cardenas said.

legislation

government

~ stronger public records access in Ohio ~

The Ohio Attorney General, Jim Petro, is making a case before the Ohio legislature for strengthening the training for agencies responding to public records act requests.

Under the bill, a public office could not require a person to give identification or motivation before receiving a public document. Public offices would pay a $250 fine per day if a requestor files a successful legal action challenging access to documents.
Petro endorsed the bill's requirement that all elected officials get biannual training on public records law.

~ ChoicePoint SEC investigation - may be shuttered ~

ChoicePoint is now under investigation by the Securities and Exchange Commission and account holders may not be able to access some of portions of previously available data. Read the article.
ChoicePoint to close access to small businesses. Another article here. ChoicePoint claims that there was never a similar prior breach of security.

The company is under investigation for insider trading due to timing of stock sale.



choicepoint
government

~ internet research resources ~

The Lawyer's Guide to Fact Finding on the Internet is now in a second edition and is an essential resource for any private investigator or researcher serious about making full use of the Internet. The authors also produce a monthly e-newsletter ($60/year), an addendum to the book content. See the authors' other products, including a free newsletter..

Robert Ambrogi has a strong Internet presence in the legal blogosphere. I haven't read his book, The Essential Guide to the Best (and Worst) Legal Sites on the Web, but you can read an interview with him here.

~ Missouri may license private investigators ~

The Missouri Senate just had its first reading on a bill to license private investigators.




legislation
private investigator
government

~ plumas county california moves to centralize CPRA requests ~

From the large population center of Plumas County California emerges the command of the County Counsel (represented by Brian Morris) to centralize the handling of California Public Records Act requests. He proposed to the County Supervisors that his office make the determination about whether a CPRA request requires response. He offered that the California statute does favor openness.

However, "there are many exceptions to this rule in areas such as individual privacy, evidentiary privileges, trade secrets, security issues and competitively sensitive information," explained Morris. Because of the complexity of these issues in relation to the Public Records Act, Morris proposed that county departments work with the office of the County Counsel regarding response to requests for public records.

public records

~ California divorce records - unsealed ~

From the Los Angeles Times comes this California Superior Court update sure to calm the fears of private investigators...

A Los Angeles Superior Court judge ruled Monday that a new state law permitting divorce case documents to be sealed in their entirety — even if only a small portion contains personal information — violates the 1st Amendment.

PI News Link reported on the story in December of Ronald Burkle, who succeeded in having part of his divorce file sealed. This recent shift of the winds was reported in the blogosphere and over here, a seemingly different point of view.


public records
government

~ California motor vehicle records - telephone access ~

Calling all California legal professionals, attorneys and private investigators. This week you are needed to help restore telephone access to DMV for commercial account holders. This bill will reinstate telephone access that is critical for investigators in the field solving abduction, fraud and worker compensation cases, and Service of Process.

Assemblyman Dennis Mountjoy re-introduced AB 26, the DMV inquiry bill. Next week, the bill will be heard in the Assembly Transportation Committee. Letters of support must be sent right away to ensure that this bill gets passed from the Committee. For a letter example contact CALI. Send letters to:

Jenny Oropeza, [D-55], Chair
Capitol Fax: 916 319 2155
Capitol Room: 2148
District Address: One Civic Plaza Drive, Suite 460, Carson CA
90745-2243
Assemblymember.Oropeza@assembly.ca.gov

~ public records access update ~

In the California Supreme Court is a case that tests the California Public Records Act.

Issues: Petition for review after the Court of Appeal granted in part and denied in part a petition for peremptory writ of mandate. This case includes the following issue: When a request for information regarding a peace officer disciplinary proceeding is made under the California Public Records Act (Gov. Code. ? 6250 et seq.), what information is protected from disclosure under Penl Code section 832.7 as a "personnel record"?

The North Carolina Supreme Court is deciding how much of a 911 tape the police are required to release. Washington State has curtailed some access to government records by using the attorney-client privilege exemption.



public records
government

~ health loan default borrower database ~

The U.S. Department of Health and Human Services is required to publish the names of loan borrowers who have defaulted. This HHS database is searchable by borrower's name, practice area and/or state. These are doctors, dentists, chiropractors and other health professionals. HHS describes this loan program: "Between 1978 and 1998, the Health Education Assistance Loan program provided federal insurance for educational loans made by private lenders to more than 156,000 graduate health professions students."


database

~ the many ways to find a bank routing number ~

There are several sites that aid in associating a bank with its routing number.

Bank routing numbers organized by state are here, on a private investigator's web site. Search The Federal Reserve Bank, FedWire participating financial institutions by name, state or complete, or partial, routing number. A private company, has a free bank routing number search tool. [Brought to my attention by Jim Magdaleno.]

Once you know the name of the financial institution, go to the Federal Reserve site to identify the bank's location.

~ criminal justice and drug addiction ~

The National Criminal Justice Reference Service has released a report on issues of drug dependency, which may be helpful in some of your criminal defense cases.

Dynamic Picture of Marijuana and Cocaine Use "Predicting Heavy Drug Use" (60 pp.) (NCJ 208382) describes the movement of adolescents and young adults into and out of drug use, and also predicts heavy drug use. The data source is the Department of Labor's National Longitudinal Survey of Youth, which began in 1979 with a sample of 12,686 adolescents ages 14-21.

government