EDD | Professional Ethics & Responsibility

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.

Details of the controversy between these two professions vary from state to state. E-discovery professionals should know the PI licensure laws and regulations of the states in which they work.

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.

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, thought leader in e-discovery.

*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.

Comments

[Dave]

nice!

[mcnorman]

fascinating

[Alan M. Kaplan]

I spent several months studying the issue of whether Computer Forensic Examiners should be licensed. At the conclusion of that research I proposed a revision to the Nevada Revised Statutes which took a middle (I believe prudent) approach. I won't go into all the considerations here but if anyone is interested in the pros and cons, they can e-mail me at AKaplan@LasVegasPI.com and I will provide them with the same lengthy talking paper I provided to the Nevada State Legislature.

The proposed statute created an entirely new license For Computer Forensic Examiners. There were competency standards and character standards attached to the issuance of such a license. (The ABA seems to have forgtten that characer counts.)

The Nevada Private Investigators Licensing Board, unanimously approved the proposal and joined me in sponsoring it before the Legislature. The Nevada Senate approved it unanimously both in comittee and on the floor. It went to the Nevada Legislature where it died in committee when the Legislative year ended.

Mark Twain noted that the Nevada Legislature meets for 180 days every two years. He suggested that it might be better if they met for two days every 180 years.

[orange county private investigator]

This is an interesting issue. Personally, as a PI, though I have in the past conducted computer forensic investigations I feel the best resolution here would be the creation of a new license as Alan mentioned.