This time, the CEO (and former litigator) of Catalyst, John Tredennick, writing in Law Technology Today (reg’n may be required) passes comment:
Two states have recently enacted statutes that make it a crime for unlicensed individuals to engage in computer forensics. Texas passed a law that would give regulators the power to impose up to a year in jail and a $14,000 fine on people doing “computer investigations.” Michigan went a bit further. On May 28 th of this year, Governor Jennifer Granholm signed into law a bill that makes unlicensed computer forensics work in Michigan a felony punishable by up to a four-year prison term, damages of up to $25,000 and a criminal fine of up to $5,000.
Read the article for details, but Tredennick summarizes the Texas law thusly:
As I read these [Regulatory Agency] opinions, there is some comfort for people doing routine electronic discovery collection but not if there is a forensic or testimonial aspect to the collection. There is a strong suggestion that experts who are called to testify in Texas courts regarding examinations of electronic files better be licensed in Texas. If you don’t have a license, you might be pulled off the stand and escorted to the hoosegow for an extended visit.
Seriously…not the hoosegow!
With respect to Michigan:
How far does this reach?
Good question. If I were a forensics expert and offering testimonial services, I would be pretty nervous about this law. The Act seems to focus on:
Computer forensics to be used as evidence before a court, board, officer, or investigating committee.
Most electronic discovery is focused on collection rather than forensics and an argument could be made that your eDiscovery efforts are not about forensics but rather the collection of relevant evidence for review. But do you want to make this argument to some Michigan criminal court? I wouldn’t.