Series Summary and Editorial
Part One: Interview with Texas State Rep. Joe Driver
Part Two: Interview with Matt Miller, Institute for Justice
Part Three: Interview with Capt. RenEarl Bowie, Texas Private Security Bureau
by Brian Boyko
Editor, Network Performance Daily
We’ve written three stories and conducted three interviews regarding HB2833. The first was with the author of the law, Texas State Representative Joe Driver, the second with Matt Miller of the Institute for Justice, and the third with Texas Private Security Bureau Captain RenEarl Bowie.
Here is our editorial summary:
HB2833, the law designed to make changes to laws regarding private investigation but has PC and Network techs worried that their work may now be illegal, has caused confusion and worry from normal people doing normal jobs in a normal manner. Whatever the original intent of the law, it is clear to see from its effects that the law itself is poorly written.
Ultimately, words like “open to interpretation” and “case-by-case basis” are not words you want to use when describing either the meaning of, or enforcement of, the law.
So, where did things go wrong? I think the man problem was a key misunderstood concept by Texas State Rep. Driver when he wrote the law. It is clear from the interview with him that he believes that there is a clear and well defined line between “retrieval of data” and “investigation.”
“’Review, analyze, and investigate’ are the three key words, in my opinion, that drive the need for people to have some kind of license. Because if they're doing some of that, then they don't need to be - it doesn't need to be just anybody able to do that - they need to have somebody that has a security license. But if someone's just retrieving information and providing information for someone who is going to analyze, to use one of the words, then that's just a regular computer repair person.” – Rep. Driver.
But what Rep. Driver simply did not realize is that in the practical realities of IT, no such line exists. Any and every interaction that any IT person has with a computer requires some sort of “review, investigation and analysis,” whether it’s simple troubleshooting or complex network latency optimization.
I can see where Rep. Driver was going with the law and what his intent was when writing it – rooting around through someone’s Windows Recycle Bin can be just as invasive as rooting around in somebody’s trash.
But rooting around in the guts of a computer to discover the cause of a malware infection is different from rooting around in the guts of a computer to discover infidelity. However, instead of making the criteria of “investigation” the purpose and use to which the information could be put, the law makes the criteria the way that the information is stored – “computer-based data not available to the public.” The end result is that the net was cast too widely.
Compounding this problem is the interpretation provided by the Texas State Private Security Bureau of the law – a literal one.
“Computer repair or support services should be aware that if they offer to perform investigative services… they must be licensed as investigators” – Texas Private Security Bureau Opinion Summary.
Unlike the law itself, the opinion summary is an unambiguous statement, and while Capt. Bowie may say that the law will be interpreted on a “case-by-case” basis, that is not what is in the official statement of opinion.
As for the court case brought by the Institute for Justice – unfortunately, the Institute for Justice seems to want to fight this case on Constitutional grounds. However, that will be a hard sell, as qualifications and licensing are clearly powers that states exercise, from state bar associations for lawyers, and state medical boards for doctors. If the state of Texas wants to make a PI license a requirement for PC repair techs, it certainly has the power to do so. It may be absurd, but absurdity is not unconstitutional.
So, where does that leave technical practitioners like network engineers and PC repair gurus? As a practical matter, I think most people are going to continue going about this, “business-as-usual” style and make a stink only after the law is enforced on some, most likely unsuspecting, tech somewhere in Texas.
The good news is that I think that it is indeed possible to clarify and change the law through the legislative process – Rep. Driver has stated that he would indeed make changes to the law if it needs clarification or amendment.
It clearly does.
by Patrick Ancipink