Yesterday, Reuters published an article that caught my eye. It was about a “private investigator” hired by Uber who “fraudulently sought information about its opponents in an antitrust case.”
In actuality, it was the New York Post’s salacious headline that really caught my eye: “Judge Probes Whether Uber’s Private Eye Lied to Dig up Dirt.”
The so-called private investigator reportedly called the colleagues of the attorney’s for opposing counsel and, according to the judge, “falsely stated that he was compiling a profile of up-and-coming labor lawyers in the United States.”
The company Uber used is named Ergo – a “business intelligence” firm based in New York. According to the New York Department of State’s Division of Licensing Services, however, Ergo is not a licensed private investigations agency all. The reputation of private investigators pretty much sucks already and more than likely doesn’t need a non-licensed business intelligence firm’s help, but I digress.
The tactic used by Ergo is a classic example of pretexting – assuming a purpose or an appearance in order to cloak one’s real intentions. In certain cases, pretexting is illegal. In the U.S., it is illegal to obtain financial information from consumers or financial institutions using pretext.
You also can’t impersonate, under any circumstances, a police officer or federal law enforcement officer. Furthermore, there are certain records that are protected, such as medical records, which if obtained under pretext would have serious consequences. And partly as a result of the 2006 Hewlett-Packard scandal, in which HP hired private investigators to access the phone records of board members and nine journalists through pretexting, President Bush signed the Telephone Records and Privacy Protection Act of 2006, making it a federal felony to fraudulently acquire telephone records.
But that’s about it. There are laws prohibiting “deceptive practices,” but these laws have broad definitions.
For example, there is no law against posing as an airline worker offering a free ticket in order to persuade an individual to fax a copy of his or her passport. Clever. Sneaky. But not illegal.
Ethical investigators – those with a backbone and those who are worth their salt – would NEVER do anything of the sort. But clearly, it happens.
I’m no legal expert, but I don’t think there are any legal implications in the Ergo case. Still, the parties involved are caught in the middle of an ethical gray area – a really big one.
To be frank, I don’t know where the line is.
For instance, I would never call up a person and say, “I am a private investigator, and I am trying to dig up some dirt on John Smith. I’m hoping you can help me.” That would be just plain ol’ stupid. Nobody would ever speak to me.
But I might skip a few details. For instance, the fact that I am a private investigator will most certainly freak people out, and it’s probably best not to say the real reason I am calling (to “dig up some dirt”). Instead I might say, “I’m trying to gather some information” or “I’m doing some research.”
But if it ever comes to it, I would never lie about who I am or what I am doing, and of course I would never say who I am working for – but I also wouldn’t necessarily offer up all the details.
I can think of hundreds of scenarios in which I wouldn’t use my real name and identity, or in which I would skip some details in order to obtain information. But in general it’s unethical – and in some cases illegal – to pretend to be someone else to elicit most types of protected information.
And what would be the point? Information obtained via pretext could never be used as evidence anyway.
What does this all mean?
In my opinion, pretexting kind of gets a bad rap. Some methods are absolutely illegal and, as in this particular case, 100% unethical.
But in between the harmless “Is John there? It’s Billy, an old friend” and the illegal stuff, there is a huge gray area where some people are willing to go for a few bucks. For me, however, not even a whiff of unscrupulous behavior is worth undermining a client’s best interest, my reputation or my license.
So, what did the investigator in the Uber case fail to consider?
First of all, calling colleagues to dig up information carries huge risks, especially if your client is in the middle of litigation. You never know who the person is on the other end of the line, what kind of relationship he or she has with the person you are looking into, or whether the details of the call will get back to the person under investigation.
There are plenty of ways to dig up information on someone that don’t require blowing your cover. Decisions about your investigative approach should not be taken lightly and can always backfire, which Uber is finding out in a publicly painful way.
Second, the investigator simply should not have lied about his or her identity – especially when hoping to gain insight that would presumably be used in litigation. Even if the investigator were able to get some “dirt,” how exactly was he or she planning on using it? It’s kind of tough to tell the court about that information when it was obtained using pretext.
The Ergo investigator probably should not have made the call in the first place, but failing that, he or she should have been a bit coy about it rather than lying outright. Sure, the investigator still would have run the risk of getting caught making some inquiries, but so what?
There is nothing illegal or unethical about making some inquiries – unless, of course, you’re using pretext.