Anthony Pellicano and the Future of Surveillance

As the dust settles in the aftermath of the conviction of Anthony Pellicano, self-styled "Private Eye to the Stars," some are wondering: How many of his kind are out there? How many rogue private detectives are moving about the country intimidating people, eavesdropping and deceiving others into providing them with off-limits information? And what impact, if any, will his conviction have on the shadowy world of high-end surveillance he inhabited?

Private investigation in America is almost as old as public law enforcement, and it has long been associated with the unsavory and the underhanded. In 1850, Allen Pinkerton founded the Pinkerton detective agency, whose motto was "We Never Sleep." He received notoriety when he uncovered a plot to kill President Abraham Lincoln; his agency was later asked by Lincoln to provide for his protection. From its founding, employees of the Pinkerton agency were summoned to break strikes, spy on union organizers, commit acts of sabotage and espionage and lift sensitive information for clients from industrial competitors.

For an investigator, then and now, information is king, and today's sleuths have to reinvent themselves on a regular basis to stay current as to where information is stored and how it is accessed. The Dumpster diving of yesterday—literally climbing into the trash to ferret out information—continues. But as information is stored and exchanged in more sophisticated ways, private investigators—even the ethical ones—are under enormous pressure to keep up with ever-changing technology.

The median income of a PI is $33,750, and the field is expected to grow by about 18 percent in the next decade, according to the Bureau of Labor Statistics. At the highest end of the business, there are several multi-million-dollar conglomerates which offer risk management, due diligence, computer forensics and "intelligence" services for corporate clients. Former law-enforcement officers are frequently found on the rosters of these companies, leading to concerns that current law-enforcement officers may be tempted to release information in exchange for a soft postretirement landing in the PI ranks.

In the Pellicano case, law-enforcement officers from the Los Angeles and the Beverly Hills police departments were not, apparently, leaking information in hopes of a better tomorrow. Instead, they tapped into confidential law-enforcement databases and turned over confidential information for a more immediate benefit: cash bribes. This was a remarkably foolish thing for them to do, since most law-enforcement agencies have rigorous in-house audits that reveal hanky-panky when cops play around with motor-vehicle and criminal-records information. Cops in America are fired every day for extracurricular accessing of such information; even if their own departments are lax or corrupt, guardians of state criminal records and motor-vehicles files and federal criminal-history checks regularly red-flag suspicious patterns and follow up on why license plate or criminal data information was requested. (Pellicano also had a rogue telephone-company mole who helped him break into phone wires.)

Was Pellicano a one-off? Disturbingly, a number of Hollywood celebrities, untroubled by his inoperative moral compass, hired him to spy on and intimidate others—raising legitimate questions about whether or not some of them should have been in the dock themselves. Pellicano paid to develop a technology, Telesleuth, which allowed for intercepting conversations of others, a major federal no-no, and one that will never, ever be overlooked by prosecutors.

Few things in American law are as zealously protected as private conversations between individuals. While the Fourth Amendment prohibition against unreasonable search and seizures has been gradually watered down, eavesdropping on conversations is an exceptional step for law enforcement, and one that requires lengthy, time-consuming applications to courts—applications which typically can only be submitted only by top prosecutors or their designated deputies. As a result, in the entire United States, in 2007, there were a total of just 2,208 nonterrorism wiretaps ordered by federal and local courts.

Pellicano reportedly charged large fees for his services, and counted some of Hollywood's leading legal talent among his clients. Yet he chose to represent himself in court when charged with 110 violations of federal law. It was a gamble that did not, in the end, pay off, as last week's conviction attests.

Pellicano did not appear to have enough sophistication to intercept cell-phone communications, putting a major crimp in his conversation-interception abilities. But federal agents had trouble piercing some of Pellicano's encrypted information. The bureau sometimes tests the technological frontier in monitoring targets—in a New York mob case, for example, in which agents sent software remotely to cell phones so they could listen in surreptitiously on the phones' users and those in their vicinity. But it's an open question how many PIs are able to manage such feats.

Is more regulation needed to prevent another case like this one? Not in Pellicano's backyard; California has some of the most stringent rules for investigators in the country, requiring anyone seeking a license to log 6,000 hours of experience and successfully complete a written test. Most other states have some form of licensing requirements and background checks as well. But perhaps in the wake of the Pellicano verdict, police departments, state agencies and telecommunications companies will keep a tighter rein on illegitimate requests and do a better job of policing in-house leakers. The best way to prevent another investigator who is tempted to cross the line into unethical territory is to stanch the demand for illegally derived information—and throw the book at clients who seek it.