Illicit material found during computer repairs may create legal problems for the people doing the repairs.

08/21/2008

Having weak security on your computer opens the door to unwanted material showing up on your hard drive. That can produce difficulties in determining whether a person knowingly put illicit files such as child pornography on his computer or the whether the files were saved there without his knowledge or intention. People performing routine computer repairs as a profession are in a position to stumble across such files in an unwitting clients computer without intentionally seeking them out. Under laws passed within the past year in Texas (Private Security Act) and Michigan (House Bill 5274) could land technical repair people accused of doing computer investigations in prison terms of up to one or four years, respectively, along with hefty damages and fines.

Looking more closely at these laws, the only Texans legally allowed to perform investigations that may turn up illicit material are licensed private investigators. Simply employing a non-licensed person to perform a search can get put you in violation of the statute (under TEX. OCC. CODE§1702.386). The statute is monitored by the Texas Private Security Bureau, which also monitors private investigators and issued a cease and desist order to members of Best Buys Geek Squad for doing home repairs. However, according to Litigation Support & Document Retrieval Industry (7/26/07) all is not lost for those who in the course of their repairs find child pornography on a clients computer, as long as the company:

1. Does not obtain or secure data by way of an investigative analysis;

2. Does not analyze or review the content of the data;

3. Processes the data (provided by others) in order to create a database that can be searched by the lawyer/clients; and/or

4. Reproduce or retrieve the documents or images upon request of the clients.

Violation of this law could result in up to a year in jail and a $14,000 fine.

The Michigan House Bill 5274 (5/28/08) is very similar to Texass Private Security Act. With regards to computer forensics, the bill defines investigation business, which describes the sort of work that could legally turn up illicit documents or images, as:

a business that, for a fee, reward, or other consideration, engages in business or accepts employment to furnish, or subcontracts or agrees to make, or makes an investigation for the purpose of obtaining information with reference to& computer forensics to be used as evidence before a court, board, officer, or investigating committee.

Just as before the law went into effect, all private investigators must be licensed by the state. Violation of this law could result in up to four years in prison, damages of up to $25,000, and a criminal fee of up to $5,000. Prior to the Texas and Michigan statutes, corporations could collect data from their networks and attorneys and legal assistants could collect data from any willing subject.

Sharon D. Nelson, Esq. writes that citizens hold an ethical duty to report any evidence of a felony they may find while doing repairs, although doing this may put them at risk for possession charges to be brought against them.

Technology laws such as these are sure to continue to be brought about and amended as technology itself changes; it is our duty to be aware of what is legal and what is not.

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