Spying in the Business Context Almost Obsolete in the Digital Age

Clients often call us for advice on investigating their employees and competitors. They really want the benefit of recorded clandestine conversations, of following employees to catch them in the act of meeting with the competition, of an evening ‘stake-out’ to catch the theft and passing of trade secrets. Some extremely few times, this is merited; most often it is not. And the way clients often try to do surveillance can be illegal, and even if successful, can produce evidence barred from use in court.

Electronic public records can in so many instances replace much of what was often discovered by traditional ‘gumshoe’ detective work. What is available for free on the internet was almost impossible to obtain even ten years ago; what is available through pay services to anyone now is downright scary, considering others can get such information on us. But this trend has been increasing since the ‘90’s and shows no indication of slowing. (Indeed, I told Forbes Magazine in 2006 that “there are a lot of ways to obtain information without breaking the law,” [from company owned phone records, recent moves or real estate purchases, other public documents like credit reports and criminal histories, [even an application]…for a fishing license in Alaska.” [1]

More than that, “Big Data” companies have incredible access to electronic information, and the ability to decipher it; recent media investigations have shown how information collected on popular phone apps that should be anonymized can easily reveal individual name, location and, most importantly, spending data. [2]

Just because it can be done is not a reason to or a license for doing it. In Pennsylvania, it remains illegal to surreptitiously tape someone, including on a telephone call, without each party to the conversation consenting; use of such a recording in court, if obtained, is barred. A GPS tracker cannot be placed an automobile by anyone but the owner (and a husband can’t track a wife’s whereabouts unless the vehicle is jointly titled in his name!). And you can’t place a hidden video camera in a home unless it’s yours.

These are just a few of the basic rules for modern-day surveillance within the bounds of the law. It is complex and specialized; call us before you try this “at home.”

[1] Clark, “How to Legally Spy on Employees,” Forbes Magazine Oct. 26, 2006, at: <https://www.forbes.com/2006/10/25/leadership-hewlett-packard-spying-lead-manage-cx_hc_html#5b36dd719aa4>.