Red Light Traffic Camera Records Challenged in Civil Lawsuit
Do the collection and evaluation of electronic records for use in court require a professional license? In litigation a mistake on this question can surprisingly cause a party to lose a lawsuit.
A Texas judge ruled the company operating a red-light enforcement camera (Affiliated Computer Services (ACS)) was acting illegally because it did not have a private investigator license. As the operator of the system, the company was involved in collecting and evaluating electronic records for the purpose of presenting findings in court. This case has spawned an uproar statewide, where motorists (such as Jim Ash, citizen of College Station, Texas) are challenging traffic tickets, demanding repayment of fines they’ve paid and complaining about police and politicians who support automated (robo-cop) traffic enforcement.
In effect, motorists are arguing the digital evidence against them should be thrown out of court because it was managed by an investigator who should have been licensed but was not.
The controversy in Texas is an unintended consequence of recent legislation compelling computer forensics experts get licensed as private investigators under state regulation. Last year the legislature amended the Texas Occupation Code so that Section 1702.104 now reads: "(a) A person acts as an investigations company [which must be licensed] if the person: (1) engages in the business of obtaining or furnishing, or accepts employment to obtain or furnish, information related to . . . the cause or responsibility for . . . loss, accident, damage, or injury to a person or to property. . . . (b) For purposes of Subsection (a)(1), obtaining or furnishing information includes information obtained or furnished through the review and analysis of, and the investigation into the content of, computer-based data not available to the public."
In our digital age, this is broad language that might be read to cover data collection and evaluation activities unexpectedly. [*First Footnote] It might cover activities not only in criminal investigations, but also in civil lawsuits like bankruptcies and failed business deals. In Texas the traffic violations in red-light camera cases are often civil law matters, not criminal law.
When the Texas legislature amended the Occupation Code, I'm sure it did not realize it might be forcing local state governments (like the municipality of College Station) to return millions of dollars in revenue from run-of-the-mill, civil law traffic tickets.
On its face, it is unclear whether Section 1702.104 covers the mere searching for and collection of computer data, as distinguished from the review/evaluation/assessment of its content.
The computer (IT) forensics profession argues that a broad understanding of private investigator (PI) licensure is unwise. In August 2008 the profession persuaded the American Bar Association to pass Resolution 301 urging lawmakers 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, whether for purposes of obtaining or furnishing information for evidentiary or other purposes, or for providing expert testimony before a court; or
- network or system vulnerability testing, including network scans and risk assessment and analysis of computers connected to a network.”
The ABA argues that computer forensics is a separate profession from private investigation and should be treated differently.
Update: The Texas Private Security Bureau has weighed in with an opinion on this topic. See my analysis.
Another update: Citizen Jim Ash believes he has found evidence that the contract between the camera company in his case (American Traffic Solutions or ATS) and the city of College Station violate the Texas legislation enabling automated red-light enforcement. Ash says Texas law forbids the company from being paid based on a per-violation basis. But he reads the contract between ATS and the city as providing such payment.
Update June 2009: Jim Ash has launched a referendum [**Second Footnote] drive to ban red light cameras from College Station. In just a couple of weeks, he has amassed 744 of the 850 voter signatures he needs to get the measure on the ballot.
Mr. Wright is an advisor to Messaging Architects, leaders in services for ediscovery.
*First Footnote: One of the reasons Section 1702.104 has attracted notoriety is that, in enforcement of the Section, the Texas Private Security Board reportedly sent letters to Geek Squad (!). The letters warned the intrepid computer repair guys not to learn about child, spouse or employee use of the computers they are fixing.
**Second Footnote: When I originally wrote about Jim Ash's voters' effort in College Station, I called it a "referendum," not having researched or thought about the technical difference between a referendum and a petition initiative under the city's charter or under the Texas law of municipalities. I have since learned that the effort is a "petition initiative", not a referendum.