Forensic felonies, 2006-04-24
A new law in Georgia on private investigators now extends to computer forensics and computer incident response, meaning that forensics experts who testify in court without a PI license may be committing a felony.
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There is a difference between conducting a forensic "examination" of evidence that has already been collected, and conducting a forensic investigation – but not much of a difference. And it is not clear that the statutes mentioned clearly make that distinction. Thus, anyone performing computer forensics or incident response services which seek to find out what happened potentially must be a licensed PI.
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The Georgia law, HB 1259 at first seems innocuous enough. It requires all private investigators in the State of Georgia to be licensed. It is intended to prevent people from simply opening up shop and claiming to be PIs. It requires such PIs to pass an exam, be in business for a particular period of time, be self-regulated, and so on. The problem lies in both the definition and interpretation of what services can only be offered by a licensed PI, and how that extends into the electronic world.
According to the legislature, a Private Investigator is any person who is in the business of obtaining or furnishing, or accepting employment to obtain or to furnish, information with reference to:
(A) Crimes or wrongs done or threatened against the United States of America or any state or territory thereof;
(B) The background, identity, habits, conduct, business, employment, occupation, assets, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation, or character of any person;
(C) The location, disposition, or recovery of lost or stolen property;
(D) The cause or responsibility for fires, libels, losses, accidents, damage, or injury to persons or property;
(E) The securing of evidence in the course of the private detective business to be used before any court, board, officer, or investigating committee; or
(F) The protection of individuals from serious bodily harm or death.
In addition to the aforementioned services, "private detective business"" shall also mean providing, or accepting employment to provide, protection of persons from death or serious bodily harm."
Typical "Magnum PI" kind of stuff. The problem is that the statute is written so broadly as to include almost all types of computer forensics and computer incident response – at least when done by outside consultants. After all, when do you need computer forensics, or incident response? Typically, you call in a computer forensics expert when you suspect something "bad" has happened. Thus, you retain the expert to furnish information with respect to possible crimes or wrongs (the phrase against the United States or any State or territory doesn't mean that the State is the victim of the crime, just that it violates the state law.)
You also retain forensic experts to collect evidence about damages and loss to you – from computer viruses, worms, attacks, and so on. You want to know what happened, how it happened, why it happened, and how to prevent it from happening again. You want to know the, "cause and responsibility for ... losses and damage to ... property." Namely, this applies to your computer network and the information contained in it. You also want the information collected in a way so that it can be used in court or by other investigators later on, even if you do not intend to pursue a civil or criminal case. If information is stolen, you want to know the "location, disposition and [ensure the] recovery of lost or stolen property" namely the intellectual property stored on the computer. For all of these things, you would typically hire not a gumshoe, but a forensic expert. Unfortunately, under this new law that forensic expert would be committing a felony.
Forensic expert prosecuted and sued
The Georgia statute was brought to my attention by Scott Moulton. Frequent readers of this space may remember Scott as the person who was criminally prosecuted and civilly sued in Georgia for doing a port scan on a computer system prior to allowing that system to connect to the system he was managing. I wrote a column about it at the time.
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