This blog may be one of the few publications in the Western world that has never written the word “Kardashian,” but that has now changed. In the stories about the robbery in Paris of Kim Kardashian we found numerous issues that touch on the work we do.Kardashian Paris Investigation

After my recent book The Art of Fact Investigation came out in May, a number of people wrote to me and suggested another chapter in the next edition about what people could do to maintain privacy in the face some who may want to dig up facts on them.

The easy advice for Kim Kardashian-West: if you are on social media a lot with information about valuable possessions and your whereabouts, criminals will easily learn about your valuable possessions and your whereabouts. Big rings on Instagram? Not a good idea. The super-secret apartment hotel in Paris? With paparazzi following you everywhere, how secret is any place you go?

The harder advice both to accept and to act on relates to some speculation in the media that the crime was an inside job, because the thieves knew that Kardashian’s security guard was not on duty that night.

When we let others into our homes and into our lives, there is always the chance that one of those people may feed information to the outside. This is why many people like a preliminary background check of the electrician or plumber they are about to admit into their home. They like a more thorough look at someone who will watch their children. But Kardashian-West isn’t just dealing with plumbers and babysitters.

How many photographs are there of her bringing home groceries, for example? She eats therefore food is delivered by people. When she buys something large, that too is delivered. It is unlikely that she drives her car to Jiffy Lube when it’s time for an oil change. People drive for her.

We have written before about the value of talking to workers who have been in someone’s home. Movers, gardeners, handymen – all get to know the home to an extent and the people who work there. If one of them becomes estranged because they are fired or are not paid, they have every incentive to talk about the person they used to serve.

We are not saying that Kardashian-West has been betrayed by any of her staff. Only that when police found out that the bodyguard was off duty that night, they surely wanted to know: who else knew that? And they would have started the questioning close to home.

When your defense is that the law allows you to publish garbage without fear of prosecution, one takeaway is simple: the internet is filled with garbage that needs to be well verified before you rely on it.Internet searching

This blog thinks the Ninth Circuit got it right in exonerating Yelp this week from the lawsuit by a small business that was incorrectly identified in a negative Yelp ad. The decision is here.

While we feel terribly for the locksmith whose business was tarred with a brutally negative review that Yelp erroneously attached to his business, it seems clear that the court was right in deciding that Yelp was protected from prosecution by the federal Communications Decency Act.

The reasoning in Congress for this and other laws that grant safe harbor to internet facilitators of exchanges (of opinions, goods or anything else) is that if the internet sites were to be held liable for the contents of what they were portraying, the industry would shut down or need to charge a lot of money to compensate them for the risk.

As fact finders, we think the Yelp case is a handy example of why just about anything on line should be verified if you intend to make any kind of important decision based on what you read.

We recently had a case in which a negative review of a doctor became relevant in a malpractice case. Question one to us was: is this reviewer a real person and if so who is she? Based on her Yelp handle and city we managed to find her and to take a statement from her that turned out to be even more valuable than what she had posted on Yelp.

But what if “she” had turned out to be a competitor, an embittered but deranged former patient, or just a crank?

This is the not the first time we’ve written about this. In The Spokeo Lawsuit: Databases are Riddled with Errors we discussed a database that spits out some free information but then asks you to pay for more (often inaccurate) information.

As we tell our clients all the time (and as I’ve written in my book, The Art of Fact Investigation), even the most expensive databases confuse people with similar names, leave out key information such as where a person really lives or works, and are mostly hopeless with linking people and their shell companies.

The internet is a wonderful, useful and time-saving place, but there is no substitute for a good critical mind to sort investigative gold from the masses of garbage you find there.

It’s cloud illusions I recall

I really don’t know clouds at all

–Joni Mitchell

Today’s decision by the Second Circuit that Microsoft did not have to hand over data stored on its server in Ireland should remind us all that information isn’t just “out there.” As with printed information so it is sometimes with electronic data: physical location matters.

The court imposed a major limitation on the scope of a warrant issued under the Stored Communications Act. It reversed the Southern District of New York’s Chief Judge in quashing a warrant issued to Microsoft to turn over emails stored outside the United States. The full opinion is here.

This blog doesn’t usually get into the weeds when it comes to the Stored Communications Act, but we are intensely interested in how to find things and how to get them to the clients who need them.

The case reminds us that even though a lot more information than ever before is stored electronically, it still matters greatly where it is stored.  Crucially, electronic storage is not the same as accessibility via the internet.

Even in the U.S, most counties do not put all of their records on line. Those that purport to do so can have less than complete recordkeeping compared to the data that is searchable on site at the local courthouse.

Just the other day we read in the newspaper about an old case in Bergen County, New Jersey that would help our client. The case was nowhere to be found on line at the New Jersey courts website. When our retriever travelled to Bergen County, he was told that the case had been destroyed.

Were we out of luck? No. The same parties had gone at it in another New Jersey county, and had attached a copy of the Bergen County suit to the one in the other county. That other suit (also not on line but visible on the computers on site) had not been destroyed. We were then able to see what the Bergen suit was all about.

None of this was accomplished on the internet, which is just a series of boxes that sit in different rooms in different jurisdictions.

Which jurisdictions the boxes are in can make all the difference.

 

 

What lesson does the Brexit vote hold for anyone conducting or contemplating fact investigation?

Don’t let confirmation bias muddy your thinking.

One of the key “Investigator’s Enemies” identified in my book, The Art of Fact Investigation, confirmation bias is what many of us tend to do when looking into an issue: we find what we expect (or want) to find.

Avoiding Confirmation Bias
Avoiding Confirmation Bias

The big money in last week’s British referendum was in favor of remaining within the European Union. It wasn’t just that large banks, corporations and the people who work there supported “Remain,” but that these people bet more heavily on their preferred outcome than those betting on Brexit.

The result? Even though opinion polls consistently pegged the race as very close, bookmakers in the UK put the odds of a Brexit victory at as little as 10 percent, according to the Wall Street Journal.

How could this be? For the simple reason that bookies like to balance their bets. Even though all voters in the U.K. got evenly weighted votes, bookies don’t evenly weight all bets. If you want to bet $400,000 on Remain and someone else bets $100 on Brexit, the odds will go heavily toward the Remain camp – whatever the polls say.

That may be what happened last week. So much money went against Brexit that those making — or in sympathy — with that outcome started to believe the odds and not the opinion polls.

How would this kind of skewed thinking work in an investigation?

Since all the information we have gathered about Mr. Jones is that he is a “New York guy,” we will not spend serious time looking outside New York to see whether he may have a litigation history or any commercial presence outside the city. We then could miss the apartment he quietly bought for himself in Miami two years ago, along with the companies he runs out of that apartment.

With confirmation bias, we might dismiss the idea of a Florida base because if he had such a thing, someone would have found it by now.

As with Brexit, we would assume that all of the “smart money’ was on one outcome (Brexit/New York) that we expect we will find.

Instead, a little smart inquiring (perhaps a database search nationwide on Jones, or a look at bet sizes for Brexit) would make us more informed and less beholden to our prejudices.

All people hold some form of prejudice when they begin an investigation. You need to have some pre-existing idea of where to look, since you can never look everywhere for everything. What we aim for is the judicious balance between inspired guessing and submitting to confirmation bias.

A reader of my new book, The Art of Fact Investigation, suggested that for the next edition there should be a chapter about legal ways to “hide from snoopers, private and public sector. I am probably not the only one who was thinking as I read the book on what I could do to keep my life more private in general in this day and age, other than staying off Facebook and Twitter.”

Our firm believes in showing exactly how we get the information we get (plenty of examples in the book as well as on our two blogs). Therefore, we offer here free of charge a few pointers on how databases collect information about you and what kinds of things you can do to stay off them.

  1. Buy a house through a limited liability company that is not named in connection with you or anyone in your family. Base it not at your house or office but at the office of a trusted lawyer. Deeds and mortgages in the U.S. are public, so any home bought in your name will pop up, often on the internet free of charge if you live in a county that puts all such information on line. Some counties do, some don’t.
  2. When you move into the house and you want to register for discount cards at your local drugstore or grocery store, don’t. If you don’t mind lying, give them a different name and a made-up phone number. Those stores sell the information people submit to the databases. If you put your real name and number down, you will get calls the same day asking if you need contracting or other help with your new home. As long as you have the card with you or remember the phone number you used, you will still get your discounts.
  3. If possible, put utilities in a name different from yours. Gas and electric company information gets into databases.
  4. Buy a cell phone with cash and replenish it as you go.
  5. Be very careful about who gets your cell number. As in #2 above, if you order a pizza while visiting someone else’s house and provide your cell phone number to the pizzeria, the databases may associate your number and that address.
  6. Avoid borrowing money. This is a big one, but credit reporting agencies are allowed to sell some information to databases that relates to where you live. The databases won’t disclose how much you’ve borrowed and from whom without your approval, but will make use of “header” information that can reveal home addresses, numbers and associated businesses.
  7. Try not to sue people. We had a case in which someone hiding assets and claiming to be broke sued a neighbor. We were able to trace his car that had allegedly been damaged by the neighbor, and found that the car’s owner was a relative who jumped to the top of our list of people who could have been holding our man’s money for him.

In summary, unless you use cash and live an extremely quiet life as a renter, it is difficult to hide completely from the electronic information gathering available today. On the other hand, we report to clients on a regular basis that a particular person owns a home, has never been to court and has nothing of note about him in any database or newspaper.

We then recommend interviewing former colleagues and others who would know more about him.

Once you get to this stage, our advice is: be nice to others and they will probably say nice things about you too.

A story in today’s Wall Street Journal about “Why the Virtual Reality Hype is About to Come Crashing Down” makes the simple point that computers haven’t caught up to all the permutations of real life to make a “virtual reality” headset experience resemble a genuine experience.

A short demo is one thing, but life goes on after the short demo is finished.

philip segal the art of fact investigation.JPG

“The dirty little secret about [virtual reality] is that the hardware has run ahead of the content,” says the Journal.

My view is that catching up to real life is something that it is hard to see computers doing anytime soon, a point made in my recently published book, The Art of Fact Investigation: Creative Thinking in the Age of Information Overload.

The book makes the case that figuring out problems related to human behavior requires guesswork and the flexibility to change course when one series of guesses appears to be the wrong way forward. Computers are wonderfully flexible and free of emotional bias, but are completely unimaginative.

While computers can sort easily through data people enter onto their hard drives, they have a much harder time saying, “Here is something you should expect to find but do not.” Example: risk management programs failed to note the suspicious fact that Bernard Madoff’s alleged billions under management were audited by a tiny accounting firm in a suburban shopping mall. The computers did not say (because they were not programmed ahead of time to say), “I should be seeing a Big-Four auditor here but I don’t see it.”

But what about all the hype about “Big Data” and our ability to predict things based on billions or individual cases only a computer can keep track of?

The problem is that in some kinds of investigations (who is this particular person? What is the probable reaction of this particular company to litigation?) we don’t demand an answer about what other people or companies have done in the past.

Big data aggregates lots of individual results, but sometimes when the stakes are high, we want to disaggregate and find out what this particular person did at work eight years ago to prompt a departure left off a resume, or what this particular company’s board is like when faced with a lawsuit.

You won’t find those answers in any magical database. If you are lucky and smart, you will find some clues that will help you put together a probable story.

If that sounds less than the neat and tidy solution you were hoping for, who said real life was neat and tidy?

When is a big financial story an unsurprising financial story? When it turns out that people from corrupt and repressive countries are sneaking their money offshore to keep it hidden.panama papers icij.jpg

The world today is tearing into a huge leak of Panamanian legal documents unearthed by a German newspaper and shared via the International Consortium of Investigative Journalists.

These have caused a political scandal in Iceland, among other places, because according to the report the prime minister of that country turned out (via a secret offshore company set up in Panama) to be a creditor to several Icelandic banks. That’s ordinarily not a problem (other than not being able to get your money back in the case of Iceland at that time). But it is certainly awkward if you happen to be negotiating on behalf of the government against the creditors (i.e., against yourself).

There are also figures in the United Kingdom said to have used offshore companies.

Those were the big news-making events, even though people from 51 countries (plus the Palestinian Authority) were reported to be using Panamanian companies set up by a particular law firm.

The reason the people from U.K. and Iceland led the news with this leak? Our money is on the theory that they are the only ones from countries in the report that are the among the world’s 20 least corrupt countries, according to the latest Transparency International Corruption Perceptions Index.

About half the countries that make it into the Panama Papers rank as less corrupt than the median Transparency International corruption ranking for 2015. But that still means only that they are perceived to be less corrupt than China, Colombia and Liberia.

A better proxy for where to expect offshore activity among the powerful may be the Freedom in the World rankings from Freedom House. Iceland and the U.K. are rated as “free,” but just 18 of the 51 countries represented in the Panama papers were also seen to have enough political rights and civil liberties to merit the “free” rating. The rest of the countries represented in the Panama Papers were “partly free,” “not free,” or “the worst of the worst” (Saudi Arabia, Syria and Sudan).

While the Panama Papers is careful to underline that the mere use of an offshore company may be completely legal, the ICIJ and everyone else knows that offshore companies can also be used to hide stolen money or to evade creditors.

It’s the evasion from creditors that usually gets our firm involved, but we have the following advice to all but the highest net worth clients:

  • It can be expensive to set up a complex offshore regime, so unless you are looking for money in the millions, it may not be worth the similar charges to 1) find the money and 2) go to court in a tax haven to get it back.
  • For Americans, we advise looking “offshore” in the United States first.

In the U. S. it’s very cheap and easy to establish a limited liability company that can be hard for creditors to find. This company can hold cash, real estate and other assets just as easily as an offshore one can. We have written about these repeatedly on our other blog, The Divorce Asset Hunter.

If you pay an incorporator to set up a Delaware company  and have that company based at the office of a friendly lawyer ( and not at any address linked to you) it can be very difficult to track such a company back to its beneficial owner. Cracking it with a court order is a lot easier and cheaper than going to court in the Caribbean, but just finding these companies set up by someone who knows what he’s doing can take a lot of work.

It may not have the glamor of Panama, the Cook Islands or the Caribbean, but for someone looking to hide $500,000, a U.S. LLC with an innocuous name can get the job done.

A fascinating piece in today’s Wall Street Journal about a Japanese collector of North Korean garbage got me thinking about the value not just of garbage in a normal investigation, but to take a minute and to ask, ‘What is garbage?the value of garbarge.jpg

First, the article: Stuffed into a rented room near Tokyo are all kinds of cigarette packages that indicate class divisions in a supposedly classless society; ration books from a country that has suffered numerous recent famines; even an old phone book that cost $2,000 on the black market. A Korean-speaking history professor in Japan has collected it all, mostly from trips to the part of China that borders on North Korea.

Our clients sometimes ask us how we gather information when public records, databases and interviews don’t get us everything we need. One option we sometimes discuss (but very rarely get hired to do because of the expense) is to go through the garbage of people related to the investigation.

Picking up someone’s garbage is a complicated endeavor, in addition to the unpleasant task of physically sorting through it. Not only do you have to figure out where it gets left and when, but you need to make sure that you have the right to collect it at all. If it’s on private property, you are trespassing and stealing if you take it. Even if abandoned on public property, some states may still frown on the idea of taking it.

Appreciating the value of garbage can help an investigation that goes nowhere near a trash can.

Garbage is something that was once considered important to its owner but no longer is. But just because the owner doesn’t care about it doesn’t mean the rest of us cannot find use for it. That’s easy to see if you spot some nice piece of Danish furniture put out on the curb, but it applies to information too.

Think about a summer cottage purchased years ago by a married couple. Along the way the marriage sours and the husband begins to skim money out of the family business into a secret company he founds. The couple sells the cottage as the children grow up and move away, and then divorce proceedings commence.

When the wife approaches us with the suspicion that her husband has hidden assets, we take a look at his entire profile of both today and years past. We search the names of companies linked to the address of the former cottage and find a company was once based there but now has an updated address.

That is probably the one hiding the company assets, and that is garbage picking: an address no longer of use to the husband, but linked forever to the company he once founded and which is still very important to him.

The current fight between Apple and the U.S. Department of Justice, which is trying to execute a search warrant in a criminal matter, has been framed by Apple and its defenders as a battle over privacy.

Apple is not arguing that the information sought should never be seen by the government. The company handed over all the information asked for in the warrant that had already been stored on Apple’s own servers, some of which is presumably still on the phone. Where Apple wants to draw the line is the privacy of its customers who don’t back up their phones on the cloud.

It’s not enough to say you want privacy, because privacy means so many things to different people across not just national borders but even within countries.

Mortgage recording means I can figure out how much you owe your bank. Your series of LLC’s you thought would keep your beneficial ownership a secret comes unraveled when you borrow money because banks want to see who’s at the end of the chain before they lend. When they lend, the rest of us can take a peek. Yet, some countries keep mortgage information private.

Do you have the right to make private the details of your divorce? If you live in New York you do. Because those records are sealed. In other states, how much you pay your former spouse in alimony and support is wide open for everyone to see. You might as well make your tax returns public.

Speaking of tax returns, those most confidential of documents: some European countries thought to be superior guardians of privacy put everyone’s income on the internet.

Some people don’t want information on their phone made less secure because the government could get a look at health information. Health information is private, except when you have national health insurance as does most of Europe and Canada. Then, your information is between you, your doctor, and the government. Some people would still call that privacy, but it’s not as private as if it were locked on an encrypted Apple phone.

As an opinion piece in the New York Times said today, nobody appointed Apple to be the definer of privacy. That’s something governments do when they draft constitutions and statutes that their courts interpret.

There is much less than meets the eye in new Treasury Department rules aimed at tracking “secret buyers of luxury property,” as the New York Times put it this morningfincen rules on luxury property.jpg.

When you look at the new rules here, you see that it will fall to title insurance companies in two U.S. cities (Miami and New York) to report the beneficial ownership of corporate entities that pay more than $3 million in cash for a property.

This blog takes no position on whether there should be more vigilance about who is buying real estate in the U.S. What is clear is that these rules will do little to shed any light on the matter.

If I were a very rich person from Russia, China, Brazil or anywhere else, here are the obvious and inexpensive workarounds I would consider:

  1. Forgo title insurance. If you have $12 million to spend on a condo you will seldom visit, you will do without title insurance – a policy usually required by banks in exchange for taking your mortgage. Oligarchs need get mortgages. Any doubts about good title can be solved by a competent lawyer who can do the same work as the title searcher, minus underwriting the work with an insurance policy. In any case, many of the properties the government is targeting are new construction where title is much less of an issue.
  2. Set up a foreign holding company to control the U.S. company buying the property. Have a lawyer in the foreign jurisdiction control that foreign company as the beneficial owner. Once the sale of the U.S. property goes through, transfer the shares of the foreign company to a trust controlled by the rich foreigner. Even if title insurance reported the initial beneficial owner, they would not be able to track subsequent ownership changes overseas of the foreign holding company.
  3. Buy a place in Hawaii, Palm Beach, or Connecticut. The rules are backward looking. These people buying the properties are not. If they can buy with a corporation or LLC no questions asked somewhere other than New York or Miami, they will do so.
  4. Instead of buying a place for $4 million in Manhattan, buy two for $2 million. When you have millions and billions to spare, who cares about transaction costs of an extra conveyance?