We have recently learned that computer forensics technicians are required to be licensed under Michigan law, that the Department of Labor and Economic Growth has always taken that position, and that several months after the DLEG's MediaSentry investigations began in Michigan, the State enacted a statute codifying the DLEG's position.
An avid reader of this blog, who has been independently studying the MediaSentry investigations in Michigan, had this to report recently. We thank him for the report.
Media Sentry’s days of unlicensed investigations of Michigan residents may soon be over.May 22, 2006, Letter of Michigan Department of Labor and Economic Growth
On May 28, 2008, the Michigan governor signed into legislation an expanded revision of the state’s professional investigator licensing act. The new definitions make it absolutely clear that the activities of Media Sentry fall under the definition of a private investigator and that, as such, it needs to secure a license to investigate residents of Michigan.
Specifically, the act specifically covers any business that contracts to make an investigation for the purpose of obtaining computer forensics to be used as evidence before a court.
“Computer forensics” is defined by the new law as: “the collection, investigation, analysis, and scientific examination of data held on, or retrieved from, computers, computer networks, computer storage media, electronic devices, electronic storage media, or electronic networks, or any combination thereof.” Clearly this includes any and all of MediaSentry's activities in the RIAA cases.
A copy of the new statute, effective May 28, 2008, is attached.
This new statutory definition should not be anything new to Media Sentry since it appears to simply recognize a long-standing position of the regulating agency, the Michigan Department of Labor and Economic Growth (“DLEG”), that computer forensic activities are considered investigative activities under the old statute.
In 2006, Kessler International, a large international firm engaged in forensic accounting and computer forensics, conducted a national survey in which is wrote to the various state investigative licensing boards to determine, among other things, whether or not computer forensic technicians would be considered private investigators under the state’s licensing laws. The response that the Kessler company received from the DLEG was unequivocal in the agency’s position:
“Michigan does require that a “computer forensics technician” be licensed as a private detective”. (See May 22, 2006 letter from DLEG to Kessler International)
A copy of the 2006 DLEG letter is attached.
Practitioners involved in litigation involving Media Sentry should make a formal inquiry of their state licensing boards to determine whether or not those boards consider computer forensics to be an activity that triggers a requirement to be licensed as a private investigator. To the extent that their answer is affirmative, like Michigan’s, it may help with the argument that Media Sentry’s ongoing illegal investigations should not be accommodated or considered by the Courts.
I have included a web site to the results of the various state Private Investigative boards to Kessler International’s survey.
Michigan Statute effective May 22, 2008, codifying rule that investigator's license is required for “the collection, investigation, analysis, and scientific examination of data held on, or retrieved from, computers, computer networks, computer storage media, electronic devices, electronic storage media, or electronic networks"
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