If you are a licensed private investigator or looking to hire one, one of the key terms to be aware of is “pretexting.” Pretexting is essentially the act of pretending to be someone else or fabricating a false story in order to gather information. Pretexting, in and of itself, is not illegal. However, it may be deemed illegal if it is employed to obtain information within specific categories. 

For instance, using pretexting to impersonate someone and acquire their bank account records is illegal. On the other hand, if you utilize pretexting solely for observation purposes, it is likely, not illegal.

Illegal Pretexting

If you walk around wearing a yellow vest to give the impression of being an official, just to observe what’s happening in a neighborhood, that’s probably not illegal. However, if you pretend to be a UPS driver by wearing a UPS patch, carrying a box, and approaching someone’s house to peek inside, that could be considered pretexting and invading someone’s privacy. 

There are numerous federal and state laws that govern the permissibility of pretexting. Therefore, you might wonder why you should care about its legality and why you shouldn’t just engage in pretexting without consequences.

Part of the reason is that if the information you’re obtaining is intended for court use, which is likely the purpose when utilizing assets for asset recovery or presenting evidence in court, you will eventually be questioned about how you obtained that information. If it is discovered that you obtained the information through illegal pretexting, not only will the evidence be deemed inadmissible, but the person responsible for such activities can face sanctions and significant legal trouble. 

In fact, engaging in this behavior can be a criminal offense. As a client, you may also be held accountable under vicarious liability, potentially facing civil damages. In the worst-case scenario, your entire legal case could be ruled against you.

Now, remember, we are not attorneys, and we cannot provide legal advice. It is crucial that you seek qualified legal advice. However, what’s important is to ensure that if you are gathering information, the individual collecting it for you follows proper procedures and refrains from engaging in illegal pretexting. 

A federal law called the Gramm-Leach-Bliley Act addresses much of this illegal pretexting. This law originated from a significant case where a company board of directors hired an investigator to impersonate someone else to obtain cell phone records, which were subsequently used in a court case. This incident prompted the creation of the entire Gramm-Leach-Bliley Act.

If you improperly obtain records, it can have a cascading impact on both you and your case, jeopardizing all the progress you’ve made in your endeavors. One of the significant factors to consider in pretexting is that it doesn’t have to be an elaborate scheme. 

Let me share a case from a few years ago: our client was involved in a lawsuit against an opposing party. Both parties desired to gather information about each other’s assets to determine the potential gains and assess if the other party had sufficient funds to fight the case. There were numerous reasons to uncover asset-related details.

As part of our efforts in this case, we conducted legal asset searches, bank account searches, and employed other appropriate methods commonly utilized in such cases. We ensured compliance with the GLB (Gramm-Leach-Bliley) regulations, avoiding any illegal pretexting or misconduct. We took all the necessary steps within the boundaries of the law.

As part of our standard practice, we consistently advise our clients to remain vigilant and cautious about potential threats that could be leveraged against them. We inform them to stay alert and pay attention to any unusual occurrences that might indicate another investigator is looking into their activities. Similarly, we advise attorneys to be vigilant and watchful for such actions from the opposing party, their attorney, or their investigator. 

This proactive approach is known as counter-intelligence. We urge our clients and attorneys to promptly inform us if they experience anything out of the ordinary, such as unfamiliar individuals visiting their premises, receiving peculiar mail, encountering unusual phone calls, or suspected surveillance. By informing us, we can take appropriate measures to investigate and address these concerns.

Sure enough, a couple of weeks later, the attorney representing our clients informed us about a perplexing piece of mail they had received. It turned out to be an unsolicited check in the amount of $10, labeled as a rebate check, from a generic company named USA Rebate. The accompanying letter expressed gratitude for their supposed purchase and appreciation for supporting American products. The letter mentioned utilizing the $10 rebate check for their well-being or whatever purpose they saw fit. 

The whole package appeared somewhat informal, and the letter lacked the expected level of professionalism. It seemed rather perplexing since our clients couldn’t recall making any specific purchase related to this. Furthermore, the company’s name and address were associated with a P.O. Box, which added to the confusion.

So, we took the letter and the check and initiated an investigation. We conducted inquiries to trace the origins of the P.O. Box to determine the sender’s identity. Our advice to the client was as follows: open a new bank account at a different bank from the one they currently use, make a modest deposit of $100 into this new account, and then proceed to deposit the check into the newly opened account. Our objective was to observe what would unfold with this check.

The reason behind the issuance of this check to our client became clear. The opposing party in the lawsuit intended to determine which account the check would be deposited into, with the purpose of conducting an asset search on that account. Technically speaking, this constitutes illegal pretexting because they fabricated a fictitious story about a rebate and a product purchase, which was entirely untrue. 

While a fabricated story itself may not be illegal, the intention behind using it to obtain sensitive information, particularly bank account details, is unlawful. Through our investigation, we successfully identified the source. We traced the P.O. Box, which happened to be located halfway across the country, leading us to a private investigator situated in the same town as the opposing party. In fact, we went a step further in our inquiries.

We thoroughly searched the private investigator and discovered they had previously worked for the attorney representing the opposing party. It turned out to be a complete circle, linking back to him. We presented this evidence to our client and their attorney, who subsequently brought it to court. As a result, sanctions were imposed on that attorney for employing an investigator who engaged in illegal activities. 

The consequences of this had a significant impact on the other side. This example highlights how even seemingly minor actions can carry substantial repercussions. Therefore, it is crucial to remain vigilant and aware of such matters.

When we dealt with the other investigator, they were required to undergo a deposition conducted by our client’s attorney. Upon reviewing the transcript of that deposition, it became apparent to me that the investigator was likely unaware that their actions were illegal. It is quite common for investigators to believe that what they are doing is legitimate when, in fact, it is entirely unlawful. 

This particular individual seemed oblivious to the legal implications of their actions. That is precisely why it is crucial to ensure that the resources you engage are conducting themselves in a proper and lawful manner. By doing so, you can avoid unnecessary trouble and prevent the loss of progress and potential benefits that might be jeopardized if someone inadvertently engages in misconduct.

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