Today, we’re offering an excerpt from our nonfiction ebook How to Write a Dick: A Guide for Writing Fictional Sleuths from a Couple of Real-Life Sleuths. In this sample, we discuss pretexting.
At the bottom of this post are links to other articles we’ve written this week, from the new pot breathalyzer recently developed from a Swedish research group to a review of the investigative equipment we’ve purchased over the last decade to a book-giveaway.
Book Excerpt from How to Write a Dick
for writers developing sleuth/private eye characters and stories
“To tell the truth, I lied a little.”
- Jake Gittes in Chinatown
Pretexting is, basically, using a phony script to obtain information. Most often, a PI will pretext over the phone. Pretexting plays on a person’s natural desire to talk and be helpful.
PI Wise: Keep in mind that pretexting isn’t typically the first avenue of approach. Often, the information a PI needs can be found in public records as well as in Internet and database searches.
When Pretexting Is Illegal
A PI never impersonates a police officer, lawyer or doctor. Doing so sets the stage for the PI spending some quality time behind bars. Here in our state, a local PI was recently nailed for not only impersonating an officer, but threatening the subject with a firearm while assaulting the subject (and this was for a process service!). The subject, after learning the guy wasn’t a law enforcement officer but a PI, hired an attorney who filed a lawsuit against the PI. In your story, your fictional PI might pretend he’s an officer knowing full well he’s courting a felony charge by doing so (which cranks up the tension).
Big No-No: Using Pretexting to Uncover Someone’s Financial Information
It is a federal crime to use a pretext to find out a suspect’s personal or financial information from a financial institution. The 1999 Gramm-Leach-Bliley (GLB) Financial Services Modernization Act makes gaining unauthorized access to banking and financial customer data through pretext a criminal offense.
Several years back, in the Rocky Mountain News, April 2006, there was an article about James Rapp, a former private investigator, not only infamous for his abuse of pretexting, but for being one of the bad-guy private investigators responsible for the Gramm-Leavy-Bliley act. It was Rapp’s attempt to impersonate (pretext) John Ramsey, the father of JonBenet Ramsey, to find out what Mr. Ramsey had purchased at a Boulder, Colorado hardware store that eventually led to Rapp’s downfall. Eventually (FTC v. Rapp, CA 99-WM-783 (D.Col.), Rapp was indicted and convicted for racketeering, with a 75-day jail sentence and four years of probation.
It bears repeating that a PI cannot legally access someone else’s financial records and bank information. It’s legal, however, if the PI gained such information through the subject’s previously submitted financial statements, Dun & Bradstreet reports and conducted interviews.
Another Big No-No: Using Pretexting to Uncover Information About an Insurance Transaction
In insurance investigations, there are considerations beyond GLB, which include whether the state has adopted the National Association of Insurance Commissioners (NAIC) Insurance Information and Privacy Act (NAIC Model #670) and relevant case law. Insurance companies are regulated by the individual states in which they conduct business. When a state adopts the NAIC Model Act, it becomes state law.
Let’s jump to section 3 of the act, which addresses pretexting:
No insurance institution, agent or insurance support organization shall use or authorize the use of pretext interviews to obtain information in connection with an insurance transaction; provided, however, a pretext interview may be undertaken to obtain information from a person or institution that does not have a generally or statutorily recognized privileged relationship with the person about whom the information relates for the purpose of investigating a claim where, based upon specific information available for review by the Commissioner, there is a reasonable basis for suspecting criminal activity, fraud, material misrepresentation or material nondisclosure in connection with the claim.
If the claimant resides in a state that has adopted the Model Act, and there is “a reasonable basis for suspecting criminal activity, fraud, material misrepresentation or material nondisclosure in connection with the claim” then it may be legally feasible for the carrier to authorize a PI to use some type of pretext.
To take it a step further, state laws may vary slightly. For example, Minnesota’s insurance code doesn’t have the exceptions for a “reasonable basis for suspecting criminal activity, fraud, material misrepresentation or material nondisclosure in connection with the claim.”
Once again, it comes to a PI understanding the law before taking action. Which means you, as the writer, need to understand the law before you write about your fictional PI picking up the phone and doing a pretext. Sure, some readers might not know what the PI is doing is illegal, but others will. Why chance an implausible situation?
Plus, it can add to your story conflict and characterization if your fictional PI takes a moment to ponder the pros and cons of an action — for example, your fictional PI based in Minnesota knows if he picks up that phone and does a pretext on an insurance claimant, it’s illegal. Nevertheless, he’s toying with crossing the line because the claimant is a scum who hurt a child. Even with that noble motivation, the PI is risking garnering evidence that’s inadmissible in court or may even cost him his license. So he calls his attorney, his good buddy who’s accustomed to these gray-area calls, who says don’t be a fool, if you’re caught, it’s your neck. The PI hangs up, torn. You’ve just upped the stakes in your story.
The above scenario also makes your story more plausible than if the fictional PI picks up the phone and glibly does an illegal pretext because there’s going to be some knowledgeable reader who thinks, “Wha–? I worked for ten years as an insurance adjustor in Minnesota and there’s no way a PI would ever do that and get by with it!”
Let’s say a PI typically does domestic relations work, but one day is hired by an insurance carrier to investigate a claimant. The PI isn’t sure 1) if her state has adopted the Model Act and if it has, 2) if there are additional provisions within that state’s Model Act. Rather than you, the writer, worrying about how to dig up this information, you can have your fictional PI contact her insurance client and ask if they have a pretext policy and obtain their permission to use pretexting. This probably wouldn’t be the most exciting piece of dialogue, so maybe it’s briefly clarified in a flash of back history (“Having checked with her insurance client, who’d okay’d her using a pretext, she picked up the phone ready to play the ol’ ‘I’m calling on behalf of your high school reunion committee’ routine.”)
Legal Lookout: The first two resources for questions of a legal nature, outside of an attorney, would be 1-someone in law enforcement, or 2-a reference librarian. Many PIs consult with both, although our first call would be to a reference librarian, who can research both civil and criminal laws plus most librarians are naturally analytical types.
This week, your Guns, Gams and Gumshoes hosts have published other articles you might find of interest:
Police Can Now Test Drivers for Drug Use via Shaun Kaufman Law
Our Private Investigations’ Equipment: From Bags of the Stuff to a Smartphone via The Zen Man blog
#Bookgiveaway: Mystery-Romance Novel The Next Right Thing via Colleen Collins Books
Have a great week, Writing PIs