Many attorneys regularly rely on private investigators to conduct surveillances on matters ranging from suspected insurance fraud and domestic matters to cases involving theft and counter-industrial espionage operations.

Since many attorneys do not specialize in privacy or criminal law; they may feel they do not have the responsibility or expertise to direct such surveillances or specify the methods used on these operations.  Oftentimes attorneys expect the private investigators to be reasonably knowledgeable concerning the legal liability that can arise from such operations.  They count on their investigators to be competent and professional enough to avoid conducting surveillance activity in a manner which could result in unnecessary exposure.

Regrettably, this confidence is sometimes misplaced and, today, a relatively new hazard exists in the form of electronic surveillance.

Clandestine Devices
Clandestine electronic tracking devices have been around for many years, first appearing publicly in the James Bond film "Goldfinger."  In the past couple of years, manufacturers of these devices have touted their wares in the Michigan private investigator market with some measure of success.  Some private investigators invested in these devices and now routinely use them on surveillances of all types.

In the early 1960s, the legal section of the investigation firm where I was employed took a comprehensive look at the exposure involved with clandestine electronic tracking devices and similar contrivances used for surveillance purposes.

Even 30 years ago, it was readily apparent that, at the least, the use of such devices on vehicles not owned by clients would provide clear causes for successful lawsuits, and, in all probability, criminal actions could arise depending on circumstances.

That same era brought what was later dubbed "The Nader Ruling," which found that, although General Motors Corporation and its agents did absolutely nothing illegal during their investigation of consumer advocate, Ralph Nader, they went so far beyond the scope of normal and reasonable investigation that damages should apply.  The investigation, in other words, was excessively intrusive.

In the private sector today, electronic tracking devices play a legitimate role on extended over-the-road truck surveillances, high risk cargo tracking, and as components of executive protection programs.  In all of these cases, the transmitter is installed on a vehicle with the authorization and approval of the owner.  However, serious problems arise when private investigators install such devices on vehicles of persons without their knowledge or consent.

Proposed Legislation
Michigan Sen. Christopher Dingell has introduced Senate Bill 1217 which will make the use of electronic tracking clearly and specifically illegal, except for public sector law enforcement.  While the proliferation and misuse of electronic tracking devices may be more prevalent with unlicensed amateurs and "wannabe" sleuths who patronize so-called spy shops, it is clear that some licensed private investigators do use, and misuse, these devices.

Regardless of the status of the bill, this author agrees with Senator Dingell's stated assumption that even without this bill, at present, the surreptitious use of electronic tracking devices on vehicles not owned by the client is an illegal act, which additionally provides a solid basis for civil exposure to the both investigator and the investigator's client.

While the misuse of such devices for privacy invasion is not clearly specified as a crime at this time, other criminal statutes can apply.  This is similar to, for instance, warranty fraud, where warranty fraud per se is not a crime, but general fraud statutes and the mail fraud statute apply.  Additionally, the use of clandestine tracking devices on vehicles not owned by clients obviously has the same intrusive qualities as the installation of telephone taps without one-party consent.  An attorney knowingly sanctioning a private investigator's clandestine electronic tracking could be charged under Michigan law with conspiracy, a felony.