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June 17, 2008

Forensics in Michigan? Prepare to Go to Jail

Joehowiesmall_2 From Joe Howie, of the ALSP Update:

"According to the state of Michigan Web site, Michigan House Bill 5274, “the professional investigator licensure act,” was signed into law by Gov. Jennifer Granholm on May 28.

According to the terms of the act, it becomes effective immediately (Sec. 29) and it is now a felony punishable by up to a four-year prison term and a $25,000 fine for a person to engage in computer forensics in Michigan unless that person is licensed under the act or falls within one of its exemptions (Sec. 3(3))."

Jail Section 2(b) of the act defines computer forensics 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.”

Section 2(e) of the act defines “investigative business” to include activities such as “(v) Securing evidence to be used before a court, board, officer or investigating committee” as well as “(viii) Computer forensics to be used as evidence before a court, board, officer or investigating committee.” This definition appears to include simply harvesting electronic data as well as gathering of paper-based records.

Section 4(e) exempts attorneys admitted to practice in Michigan.

Section 4(a) exempts a “person employed exclusively and regularly by an employer in connection with the affairs of the employer only and there exists a bona fide employer-employee relationship for which the employee is reimbursed on a salary basis.” This suggests that a company could harvest its own data using its own full-time, salaried personnel, but that any non-lawyer third parties retained by a company would have to be licensed.

Presumably, the attorney exemption extends to staff employed to assist an attorney as attorneys have historically used support personnel for litigation. If the legislature had intended that lawyers could only use support staff with whom the lawyers had employer-employee relationships, the employer-employee language from 4(e) would also appear in the 4(a) lawyer exemption section.

Section 6(1) lists the licensing requirements, which include three years of experience (6(1)(f)) that can be satisfied by being “(iv) A graduate of an accredited institution of higher education with a baccalaureate or postgraduate degree in the field of police administration, security management, investigation, law, criminal justice or computer forensics, or other computer forensic industry certificated study that is acceptable to the department“ or “(v) Lawfully engaged in the investigation business as a full-time proprietary or in-house investigator employed by a business or attorney, or as an investigative reporter employed by a recognized media outlet, acceptable to the department.“

The good news is that the law allows existing computer forensics personnel to obtain license without requiring them to work for a professional investigator company.

Commentary: It is disappointing that the Michigan legislature does not require licensed professional investigators to be certified in computer forensics before they can provide computer forensic services. The law raises considerable barriers for qualified computer forensic specialists to provide services, and may force parties to use potentially unqualified private investigators for computer forensics. I suspect that in many cases PI’s with little digital forensic experience will be paid to “manage” the work actually being performed by digital forensic examiners who don’t happen to have PI licenses.

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Comments

What happens when a computer forensic software company is caught up in a serious criminal investigation – e.g. Nuix and Project Wickenby?

http://www.news.com.au/dailytelegraph/story/0,22049,23869295-5014099,00.html

http://www.news.com.au/dailytelegraph/story/0,22049,23876403-5001021,00.html

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