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Although the private investigation industry is primarily regulated at the state level, a number of federal government initiatives could have an impact on PICA and its members. Some of these developments are positive, and some would have an adverse impact.

Federal Legislation

Of the thousands of bills introduced each year on Capitol Hill, a number of them have the potential to affect the private investigation industry. The impact can be positive or negative, and it can be intentional or unintentional. Media attention and widespread concern regarding privacy issues and identity theft have given rise to a number of bills (see chart below). Several of these bills would limit PI access to key investigative information, such as credit header data. Although many of the bills currently pending in the federal legislature are of great concern, several recent positive developments have resulted in a fairly positive outlook for the current 108th session of Congress.

Congress is very likely to take some sort of action on identity theft, given the high profile and direct impact on constituents. The number of bills that have been introduced addressing concerns about identity theft and Social Security number access reflect this high level of interest at the federal level. Many bills have provisions that would have a negative impact on legitimate use by investigators and security professionals because they would limit access to the information rather than penalize the misuse of the information. Fortunately for the PI industry, two of bills that have achieved substantial momentum would not have much of an adverse impact. The full House Judiciary Committee recently reported for a floor vote H.R. 1731, the Identity Theft Penalty Enhancement Act. This legislation would strengthen criminal penalties for identity theft, and would not have a negative impact on the security and investigation industry. A similar bill, S. 153, passed the Senate last year. As these two bills move forward, other identity theft bills (which would have a negative impact) are less likely to move forward.

Legislation entitled the Video Voyeurism Prevention Act, which would make it a federal crime to covertly film, videotape or photograph individuals that are unclothed or undressing without consent, has moved forward significantly through the legislative process. As currently drafted, the bill’s language would not impact legitimate surveillance activities. The direct impact of this bill is limited, as it would only apply in federal jurisdictions, such as military bases. An added potential benefit if this bill is enacted is it could serve as a model for legislation at the state level, as some states have not yet addressed this issue. The Senate version of this bill, S. 1301, passed that chamber last year, and now that it has been approved by the full House Judiciary Committee. It is now pending a vote by the full House of Representatives, and the outlook for passage is very good.

STATUS OF MAJOR FEDERAL LEGISLATION RELATED TO PRIVATE INVESTIGATION
S. 153 Identity Theft Penalty Enhancement Act Passed Senate 3/19/03. Pending in the House Judiciary Committee.
S. 223 Identity Theft Prevention Act No action. Pending in the Senate Banking, Housing and Urban Affairs Committee.
S. 228 Social Security Number Misuse Prevention Act Pending before full Senate (placed on Legislative Calendar on 1/29/03).
H.R. 637 Social Security Number Misuse Prevention Act No action. Pending in the House Judiciary Committee.
S. 745 Privacy Act of 2003 No action. Pending in the Senate Judiciary Committee.
H.R. 858 Identity Theft Penalty Enhancement Act No action. Pending in the House Judiciary Committee.
S. 1301 Video Voyeurism Prevention Act of 2003 Passed Senate 9/25/03. Reported by House Subcommittee 3/30/04. Ordered reported by full House Judiciary Committee 5/12/04.
H.R. 1543 Civil Rights and Employee Investigation Clarification Act Language from this bill, introduced by Rep. Pete Sessions, formed the basis of Title VI of H.R. 2622, which was signed into law 12/4/03.
H.R. 1731 Identity Theft Penalty Enhancement Act Ordered reported by the full House Judiciary Committee on 5/12/04.
H.R. 2405 Video Voyeurism Prevention Act of 2003 No action. This is the House companion measure to S. 1301. Both this bill and S. 1301 are pending in the House Judiciary Committee.
H.R. 2633 Identity Theft Protection and Information Blackout Act of 2003 No action. Pending in four House committees.
H.R. 2971 Social Security Number Privacy and Identity Theft Prevention Act No action. Pending in three House committees.

Federal Regulatory Matters
Revisions to the Fair Credit Reporting Act (FCRA) passed last year in H.R. 2622 took effect on March 31, 2004. The regulations, published jointly by The Federal Trade Commission and the Federal Reserve, included a beneficial provision that an investigator will not be required to disclose to the subject being investigated that a misconduct investigation is underway. Subsequent disclosure of the “nature and substance,” however, is required if the investigative communications form the basis of an adverse employment action. For more details, please see the full text of the Federal Register announcement online at www.ftc.gov/os/2003/12/031216frnnotice.pdf.

If you have any questions about any of these legislative initiatives, please feel free to contact the author, Pierre Paret, at 703-200-1334.