DO'S AND DONT'S: ELECTRONIC SURVEILLANCE EVIDENCE

Dos and don’ts: Electronic surveillance evidence

By Thomas Martin

Legal surveillance can effectively support evidence for either the plaintiff or defendant and provide the means to exonerate a suspect in a criminal case. However, alarms should immediately go off in an attorney’s mind when electronic eavesdropping is suggested after every other investigative approach is exhausted. Using bugs and bidden camera devices – available on the black market and most recently, on hundreds of Internet sites – is a blatant invasion of privacy and also a felony. It’s a crime in California to eavesdrop on any confidential communication without the consent of all parties to the conversation.

In the pursuit of gaining an advantage, divorcing spouses and executives might be persuaded by an unethical private investigator to embed illegal listening and video devices into opponent’s phone lines or in their boardrooms and bedrooms. The threat of eavesdropping increases paranoia and fear among high profile individuals dreading the thought of unseen ears and eyes implanted in the inner sanctums of their private world. The issue gained worldwide attention several months ago when charges of eavesdropping through email and phone hacking caused the downfall of Rupert Murdoch’s tabloid News of the World.

When top executives or other notable personalities express anxiety over the possibility of their homes and offices being bugged, the practical remedy is to have a security firm conduct an Electronic Eavesdropping Detection Sweep (EEDS). This comprehensive electronic monitoring device sweep can be triggered by the following concerns:

• Phone sounds that are not normal to the ear;
• Unfamiliar new items showing up in the office or home;
• People who know more about one’s business or personal life than they should;
• Compromised business secrets and confidential discussions;
• Dust, dry-wall grit or fresh paint that becomes apparent near a desk.

In selecting a firm to provide the sweep, it’s advisable to use corporate security experts with a background in federal law enforcement Former supervisory agents from federa1 agencies such as the FBI, DEA and Secret Service are equipped with at least 20 years of training in counter surveillance and know the latest technical advancements in eavesdropping, monitoring device detection and comprehensive understanding of the eavesdropping practices. A typical EEDS takes two days and involves state-of-the-art detection equipment. The sweep consists of searching the structure’s interiors along phone lines, electrical outlets and electronic communication network.

When the sweep is completed, a report is compiled which lists recommendations to enhance security, protect privacy and ensure peace of mind. If bugs are located, it’s extremely difficult to identify who placed them there. In some cases, the tiny devices are not removed for the purpose of conducting conversations filled with disinformation, which is then used to track down those listening on the other end.

Aside from illegal eavesdropping, lawful surveillance only pertains to collecting information in areas where there is no expectation of privacy (public places). Surveillance is commonly used in the domestic side of family law, insurance, worker’s compensation and other employment cases. Legal photographic and video surveillance, along with interviews and statements, have a fundamental role in obtaining irrefutable and tangible proof of infidelity, employee wrongdoing, worker’s compensation fraud and insurance fraud.

In all cases of surveillance, each photo, video, interview and statement collected should be diligently prepared for use as evidence for judges and juries to review. This is even applicable when the surveillance work is not used in a trial. If the information cannot qualify as evidence in a court of law, it does not meet the standards of accuracy and professionalism expected in any legal context.

When a private investigator has the mindset that information gathered from legal surveillance should always be treated as evidence, it raises the investigation’s credibility standards. This is especially critical when an individual’s livelihood is at stake. Above all, a person’s right to privacy must be protected even if it means conducting a professional EEDS to ensure a client’s conversations and interviews remain private.

Thomas Martin is the president of Martin Investigative Services, Inc., headquartered in Newport Beach. A former DEA supervisory agent, Martin manages a corporate security and private investigation firm, which operates a network of former DEA, FBI, IRS and Secret Service supervisory agents. For more information, please visit www.old.martinpi.com or call (800)577-1080.