No License, Sherlock: Licensing for Private Investigators
What does a private investigator do? Surely, we’re all familiar with various movies and shows featuring the exciting adventures of Sherlock Holmes or Magnum PI. However, reality is often disappointing, and the fact is private investigation is usually dull and relatively safe. Private investigators are tasked with conducting surveillance and fact-finding missions for their clients, but they gain no special powers to do so. My recent paper deals with the licensing of private investigators.
Oklahoma’s private investigator licenses are governed by the Council of Law Enforcement Education and Training (CLEET), which follows the advice of a committee made up of people who run private investigative agencies. Improved competition is not likely to be in the best interest of these agencies, so it is questionable whether they should be in a gate-keeping position they could easily turn to their advantage. Private Investigators must undergo a series of trainings and pass an exam to gain their license, followed by continuing education requirements to maintain it. These mandated trainings go over generally applicable laws, which everyone has to follow, and how to conduct an investigation, training which could easily be conducted by investigative agencies in an on the job setting.
Advocates of licensing promote it as a protection for consumers. The 1889 Institute considers licensing an option only if the occupation meets two conditions: 1) it is likely people will be significantly harmed if the occupation is not appropriately practiced and 2) there some civil law or market failure that prevents consumers from making sound judgments regarding service-providers’ quality, such as by gathering information on practitioners themselves. In this instance, neither requirement is met. Even if these two preconditions are satisfied, licensing would have to be the least restrictive means available to regulate the occupation.
As noted above, private investigators themselves face few occupational hazards and pose fewer dangers to the public. Armed, they are likely much less dangerous than your average Joe with a gun, who has constitutional carry rights in this state and is much less likely to consider potential liability issues than a private investigator. Even looking at high profile cases of wrongdoing by private investigators, they acted that way with a license. California’s strict licensing requirements didn’t stop Anthony Pellicano, a licensed private investigator, from engaging in numerous crimes such as wiretapping, racketeering, and identity theft. Private investigators who are willing to break the law will do so with or without the license. It makes little sense to limit the number of law-abiding investigators to prevent amoral investigators who are not fazed by licensing requirements.
Investigative agencies and private investigators build a reputation as they ply their trade. And consumers are free and able to seek out information on this reputation. Although even this is likely not necessary, merely requiring private investigators to be registered with the state and be bonded would be enough to ensure consumer safety. Bonding ensures the availability of funds to compensate victims of incompetent investigations. Additionally, a consistently ill-behaved private investigator would struggle to stay bonded. Bonding enforcement does not require licensing.
So why are private investigators licensed at all? Before 1988, they weren’t. But, the Oklahoma Private Investigator Association (OPIA) was formed in 1984. They proudly trumpet themselves as the “strongest political voice in Oklahoma for the investigative profession.” No doubt, they had a hand in the 1988 act that licensed the profession. Private security was the other industry regulated by that act. Employment of private security guards outstripped law enforcement long ago, and law enforcement officers hold a rather low opinion of private security. OPIA likely saw a push to regulate the private security sector as an opportunity to tack on their own government granted protections. This protectionism is apparent from the fact that, by law, the advisory committee for private security and private investigators must include a representative of OPIA. OPIA and the investigators they represent have very little desire to improve competition in the market. Such an act would hurt their bottom line. The suppression of competition hurts consumers in all industries and is certainly not a proper function of government.
Under Oklahoma law, Sherlock Holmes would be buried under fines, Thomas Magnum would be in jail, and Veronica Mars would have never received a license. As a result, all their clients would be worse off. While their cases are less exciting, real people are worse off due to the licensing of private investigators. TV is filled with shows about amateur sleuths who, because they don’t accept payment, never run afoul of private eye licensing laws. If there are any of those amateurs out there, who have a talent and a desire to do such work, shouldn’t they have a chance to take payment if the opportunity arises without first paying what amounts to a tax to get licensed?