Austin, Texas—The American Bar Association recently adopted a resolution condemning a growing trend—in Texas and elsewhere—to require that computer forensic technicians become government-licensed private investigators. The resolution states, in part:

“[T]he American Bar Association urges State legislatures, State regulatory agencies, and other relevant government agencies or entities to refrain from requiring private investigator licenses for persons engaged in: computer or digital forensic services or in the acquisition, review, or analysis of digital or computer-based information . . . for purposes of obtaining or furnishing information for evidentiary or other purposes[.]”

The ABA’s position is consistent with arguments made by the Institute for Justice Texas Chapter (IJ-TX) in Rife v. Texas Private Security Board. IJ-TX filed suit on June 26, 2008, in Austin, on behalf of a group of computer repair shops and their customers. The lawsuit challenges a new Texas law requiring a private investigator license of anyone examining computer data to learn about the actions of a third person. Performing the work without a license can result in one year in jail and $14,000 in fines.

The Texas law is enforced by the Texas Private Security Board, a state agency, which made it clear that any computer technician who attempts to learn information about a third party must have a private investigator license. In letters to the public, the Board stated that anyone who “produces a report that describes the computer related activities of an employee” must have an investigator’s license, and that anyone who attempts to learn the identity of a network intruder must have one, as well.

In October, 2007 (one month after the law became effective), the Board sent a cease and desist letter to the Best Buy Geek Squad in Houston, warning the Geek Squad that “offering to investigate potential criminal or civil matters [without a private investigator license] … is a crime.”

In a report accompanying the resolution, the ABA Science & Technology Law section found, “Texas state licensing requirements are not based upon a determination of qualifications, skill, or education . . . . In fact, such laws may do a disservice because they may give consumers, corporations, and other members of the public and business community a false assurance that a licensed private investigator is qualified to do computer forensic work.” The report notes that Texas, Georgia, North Carolina, Rhode Island, Michigan and New York have adopted laws that are “particularly aggressive” with regard to the “monetary and criminal penalties” they attach to unlicensed practice of computer forensics.

“Computer forensics is a specialized discipline that has been well served by a large pool of well-qualified professionals,” said Jody Westby, chair of the ABA Privacy & Computer Crime Committee (Section of Science & Technology Law) and CEO of Global Cyber Risk. “Most PIs are not trained in computer forensics. Professional certifications, educational programs in computer forensics, and job experience are far better indicators of competence in forensics than a PI license that is unhinged from this science. This issue is a classic example of an industry lobbying group using its power to confuse legislators and get harmful legislation enacted that will force a market for these services toward them and shut out qualified competition. This is just plain wrong and unjustified.”

“We thank the ABA for lending its voice to this important issue,” said Matt Miller, executive director of IJ-TX and lead attorney on Rife. “We are delighted, though not surprised, that they reached the same conclusion IJ did: private investigator licenses have nothing to do with computer forensic work, and these licensing laws will have harmful effects on the technology community—and consumers—as a whole.”

Miller said, “Before we filed this case, the Private Security Board was telling people that learning about the computer related activities of an employee or a client’s child or spouse required a private investigator license. It even sent letters of warning to the Geek Squad. But once the case was filed and people started criticizing the Board for this overreach, the Board suddenly became much more reasonable and began telling callers there was no reason to worry. The Board’s position keeps changing.”

Miller said the ABA was studying this issue long before the Institute for Justice Texas Chapter filed suit. He said, “The ABA is saying the same thing IJ is: these laws are a bad idea and people should be worried about them.”