The Friendly Teller and the Get Transcript Portal
Cho is running an asset search for a creditor holding a $180,000 Nebraska judgment against a debtor who has not appeared for a debtor's examination. She has ten days and considers five options: (1) call her friend, a teller at the debtor's bank, to confirm balances and account numbers; (2) call the debtor's wireless carrier, provide his Social Security number and pose as him to obtain call detail records; (3) call the debtor's employer and pose as a 'benefits verification service' to confirm he still works there; (4) run a motor vehicle record with a litigation certification; (5) enter the debtor's Social Security number into the IRS Get Transcript portal to obtain his return. The creditor also wants the debtor's 401(k) balance, his Facebook friend list, and 'anything else you can find.'
1. Rank options 1 through 5 by legal risk and identify the statute implicated by each.
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Riskiest: option 1, the bank teller. Obtaining customer financial information from a financial institution by false pretenses is a federal crime under the Gramm-Leach-Bliley Act pretexting provision, 15 U.S.C. section 6821, and the teller also violates bank policy and law. Next, option 2, the carrier call: obtaining confidential phone records by fraud is a crime under 18 U.S.C. section 1039, and carrier records are protected under 47 U.S.C. section 222. Then option 5, the IRS portal: entering another person's identifier to obtain a return implicates identity-theft and unauthorized-access statutes, and tax return information is protected; this is never an investigator's shortcut.
Option 3, the employment pretext, is lower risk but still deceptive and can be treated as a prohibited deceptive practice under the licensing act; the value is low because employment can be confirmed lawfully. Option 4, the motor vehicle record, is the lowest risk if the litigation permissible use under the Driver's Privacy Protection Act, 18 U.S.C. sections 2721-2725, is genuine and properly certified; misuse carries criminal penalties.
2. What lawful methods should Cho use instead, and what should she tell the creditor about the 401(k) and the friend list?
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Lawful methods: court and judgment records; the county register of deeds for real property; UCC filings; Nebraska Secretary of State business filings; occupational and professional licensing records; public social media; lawful surveillance; interviews without false pretenses; and, through the creditor's attorney, a debtor's examination, subpoenas and written discovery. A 401(k) balance is generally reachable through the plan or through discovery and the examination, not by pretext.
A Facebook friend list is largely unavailable through the platform and is poor evidence of assets; harvesting it raises privacy concerns and yields little. Cho should tell the creditor plainly which methods are lawful, which are criminal, and what each costs in time. She should also make clear that a genuine litigation purpose is required for the DMV certification and that she will not sign one for a purpose that does not exist. Setting expectations now is better than delivering nothing in ten days.
3. What should appear in the report about sources and methods, and what should be excluded even if the client supplies it?
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The report should list each source by name and date, identify the record or database searched, distinguish public records from investigator observation, and avoid any statement implying a source that was not actually used. If a method was considered and rejected, that need not appear, but the report must not be silent in a way that implies lawful access where there was none. Any gaps should be stated as gaps.
Exclude anything obtained unlawfully, including account balances volunteered later by the teller, call records from the carrier, or a return pulled from the portal. Do not accept such material from the client either; possession and use compound the exposure and can taint the creditor's case. If unlawful material arrives anyway, preserve it without further review, notify counsel, and document the notification. The report should close with the lawful next steps and the estimated cost.