by Bill Joynt
January 25, 2005
The criteria for beginning an undercover are as follows:
Many people believe that undercover investigations are expensive. In terms of short-term cashflow this is probably true, but the entire point of conducting such an investigation is the bottom line and that, in the end, it is a positive financial contributor.
Sometimes, it is difficult to assess the financial value of information. What is it worth to know who the bad guys are in your warehouse, or who is using or selling drugs. In a lot of cases it's a little like buying insurance. For example, if there is a substance abuse problem by one or more employees in your organization and you solve it, what are the benefits to the company in terms of higher productivity, less accidents, what would be your legal position if you were aware of such a problem and did nothing to solve it?
In some cases the matter is cut and dried. If there is theft and you are losing $250,000 per year, if you stop the theft, that $250,000 goes right to back to the bottom line. Likewise, if a sales person is misdirecting sales it is sufficiently easy to calculate the value of lost clients, sales to them, and the cost of paying your salesperson to lose them.
That said, if you want an undercover operation to be successful, as the client you have to come to the table with two things: money and patience. Money, because no one will do it properly and cheaply. Patience, because to do it properly takes time. Time to build the confidence of those around you, to identify appropriate targets and to properly develop the necessary information. an undercover may last for years but the typical undercover investigation takes approximately 3 to 6 months.
Many managers have built solid relationships with their employees, based on mutual trust. Undertaking a undercover investigation is often viewed by the manager as a breach of that trust. Management must consider whether the problem at hand is serious enough to risk breaching that perception.
You might get found out. Even the best-planned undercover operation may be uncovered. Depending on the problem at hand, there may be sophisticated persons who are adept at identifying undercover detectives, who are capable of conducting their own counter measures or who have infiltrated an organization to such a degree that the undercover detective is known from the outset. If the investigation is exposed, this may have an impact on employee relations.
You might not find out anything, or what you were looking for. On some occasions, an undercover detective may not be able to uncover any worthwhile information. This is particularly true in organizations that have a very stable workforce made up primarily of long-term employees. In such instances, employees may already have procedures in place to limit the information that is made available to newcomers. If there has been long-term wrongdoing, a system to protect the perpetrators may already be in place. In such circumstances, for an undercover to be effective, it may require a great deal of time or it may require some special techniques that we will discuss later.
additionly, one must take a look at the environment in which the undercover operative will be working. Can the company introduce the operative into an area where others of interest will be working? Can people be heard in the environment? Is the culture of the workplace such that different languages will pose a problem?
Planning is the most important way to ensure that an undercover investigation is effective. To plan an undercover, you must first select the appropriate service provider.
Select an investigations company that is known to you or to a confidential associate, perhaps your lawyer. Determine if they have experience in managing undercover investigations and satisfy yourself that they either have on staff, or are able to find the appropriate undercover operative for the assignment.
Do a cost benefit analysis and establish a budget for the investigation. Obviously if you have a small problem you don't want to commit to a major effort, or will look for less expensive alternatives such as surveillance equipment, if appropriate.
allow the investigation agency time to find the appropriate person for the job. You should consider the cultural background of the target group of employees, the position itself, management, supervisory, office or workers in the plant. Consider the appropriate age and even the appearance and gender of the operative. Should the operative be a scruffy looking truck driver or a well-dressed customer service representative?
Interview the prospective operative, preferably away from the site of the undercover operation.
Once an appropriate operative has been found, ask your detective agency to propose a plan. The agency should work with you to establish what exactly they will do to solve your problem. To assist them, you should write out your problems or suspicions and identify any employees that may be involved and why you suspect them. In some cases, particularly in a union environment, your legal counsel may advise you not to provide information about specific employees in advance and simply allow the operative to uncover that information on his or her own. If you are able to do it, you should, because it will focus the investigation early on and consequently it will cost you less.
agree with your investigations agency on the frequency of reporting. a good time frame is usually weekly. any significant developments may be reported verbally as they occur.
Understand from the outset what you will be doing with the information. There is sometimes a risk to the investigator in an undercover operation so you must decide how you will end the investigation and remove the undercover detective. This means you must decide whether or not at the end of the undercover, the operative will be identified or not. If the matter is one that will likely end up in court, or in arbitration, the operative will most certainly be identified. If it is strictly an internal matter, identification of the operative may not be necessary. Remember when making that decision that the operative, during the course of the investigation, may uncover corollary information not related to the original objective. Often this other information proves quite beneficial and you may decide to extend the operation. also, realize that if the operative is to be identified, there is a certain amount of risk he or she may sustain. The level of the risk is largely dependent on the type of people in the workforce and the nature of any crime that may be uncovered.
Let as few people know about the investigation as possible. Obviously, this is especially true if the investigation involves senior people. assuming they are not involved, you must let one person in Human Resources know. This is because the operative must be hired in a normal fashion. Other than that, it should be kept as secret as possible. Depending on the nature of the problem, and the type of people involved, you may be putting an investigator's life at risk by sharing the information with too many people. You must consider that it is absolutely on a need to know basis, even if you feel you can trust others.
Know who will be calling you from the investigations firm. Make sure that when they contact you, you have arranged a method to do so that they will not need to identify who they are. also ensure that payment made to the investigations company are either normal in your business or handled in a manner that will not compromise the undercover, such as through a legitimate third-party such as a lawyer. Most professional firms have an established methodology to accommodate the payment.
It is most important to introduce the undercover into your organization in a proper manner. For example, if the operative is to be a management person, ensure that he is qualified to do the job. Make him go through the same process as other candidates and when hired, introduce him or her into the environment in that same way as any other employee. If the undercover is in the general workforce, make sure that it would not be an unusual time to hire someone new. Make the person attend the same training and orientation as anybody else entering that position. The key to a successful introduction is to avoid any action that will focus attention on the operative.
Often clients assume a greater knowledge on the part of the undercover detective than is warranted. Make sure the investigations company has been advised of the target groups where this is appropriate, the names of relevant players and the locations of social activities and other customs particular to your organizational hierarchy. This will help the undercover operative to recognize the potential for gaining information in various situations.
Often undercover operatives will embellish the truth; This is known as fluff in the industry. This must be avoided at all costs as it may jeopardize the operation and make improper use of other support and resources. In addition, it may cause management to make incorrect decisions. Investigation companies know that a successful undercover operation takes a certain degree of patience on the part of the client. However, clients are often in rush to obtain results, after all they are paying the bills and it can become frustrating to wait. But wait you must, because to be too aggressive, particularly in the early stages can mean disaster for the operation. Because of this dichotomy, a less professional investigation company may be tempted to embellish the truth to suggest that things have been uncovered or overheard, that have not really taken place or taken place to a lesser degree. Obviously, this can lead to incorrect decisions on the part of management.
Ensure the contact person from the private investigations company is available at all times. Occasionally, it will be necessary to move quickly on information developed by the operative.
a good undercover operative will avoid the spotlight. He will keep his remarks general and brief. It doesn't do well to steal the shine from the leader of a target group.
Preparation should begin well before the undercover is put into play. The game plan must establish the objectives of the undercover. This may range from the very specific, as in find out who is stealing the tools, to very general, as in just take a look and tell us what you think is going on. General or specific however, the objective should be identified and documented. If the operative employed is good, this objective will be met and he or she will more than likely provide other valuable information as well. From the outset, the criteria to measure a successful outcome should be established. For example, this may mean determining how a theft is perpetrated, identifying persons responsible, or simply determining that a theft is not occurring.
a plan for an undercover should include what moves are expected to be made by the operative, at what point and exactly how they will be executed. Having done so, it is much easier to identify any support that may be necessary for a successful resolution.
Personal danger must be evaluated and properly addressed. If target employees are known to use weapons or be involved with criminal elements, additional care must be taken to protect the safety of the undercover operative. a method must be established, where if necessary, the operative can gain access to emergency communications. Depending on the severity of the risk, it may also be necessary to have support staff nearby and establish a routine for the operative and a method that can be used to allow the support staff to determine discretely that the operative is safe. Finally, it may be necessary to utilize two or more operatives to provide support for each other. Obviously, all the extra measures have an associated cost and should only be undertaken when the assessment of risk is high.
Often, a buffer is employed to provide a safe avenue of communications for the operative. a buffer is a secondary undercover operative designed to act as a safety valve for the primary operative. This person may act as a friend or acquaintance of the primary investigator. Often once the buffer has been introduced to the target group, the primary undercover operative may use this person to relay important information without raising suspicion. The buffer may act as a bookie for example, or a girlfriend. Women are often great undercover operatives in both primary and buffer roles.
The operative must prepare himself both physically and mentally for the operation. He must be aware of the duties he or she will undertake in the execution of the job itself. Will the operative need to know WHIMIS, be required to drive a truck or a tow motor? Will they need to be able to operate a computer or communicate in a language other than the one generally in use?
The operative must know the general appearance of the work force so that he or she can dress accordingly. The operative should endeavor to understand the vernacular of the workforce but not try to present him or herself as too knowledgeable. Finally, the operative must be in a certain frame of mind. Experienced investigators have no difficulty with this in the beginning of any operation but even experienced investigators have difficulty in avoiding letting the undercover life they are leading intrude on their own life. To be successful, the operative must be believable and that means the operative must have certain empathy towards the targets of the investigation. When you do, there is a danger of the operative's perspective changing.
In addition, during a long term undercover, the operative may forge relationships with many people, some of whom they may even grow to like. Even some bandits can be nice. The operative must take care not to become too involved in the lives of his targets. This doesn't mean that they should not socialize, in fact that is the best way to gain the information sought, but they must not allow the persons to become dependant on them as friends.
The undercover operative must be a bit of an actor. Psychologically, he must prepare him or herself to live the life identified during the preparation stage for the duration of the undercover operation. To be successful though, that role should not vary too far from the real person. The operative should act as much like him or herself as possible, given the constraints set out in the undercover planning.
The operative must know the role. For example, if the operative is suggesting that he or she has a criminal record, know enough about the names of judges, wardens identity, arresting officers, prison jargon etc. It is not suggested that this be done, as it is relatively easy to check on. But it is sometimes necessary to assume the persona of a criminal.
The operative appearance must fit the role and this includes age, race, gender, mannerisms all of these things will have an effect on the believability of the role. In essence, the operative will create an image by looking and acting in a manner that is consistent with the role.
an operative can not be too aggressive, particularly early on in the operation. He or she should not be arrogant because the target groups often take this as a sign of weakness. Instead, the operative must be smooth, even courteous when called for. The operative wants to appear as if he or she is the kind of person that doesn't let things bother them, who is calm and collected and can think on their feet.
The operative should be a listener, not a talker. People like to talk, some like to do so just to hear their own voices. In most cases, targets will not become suspicious of an attentive listener because they enjoy the opportunity to talk about themselves. Being able to listen is the best way to gather information. When you're listening, you are attentive, not rude and your ego is in check.
a good operative will do a good job for you as an employee. During the first couple of weeks, they will keep their nose clean, learning the job, and will not be intrusive into anything at all. If there are social functions normally available they will attend them. If there is an opportunity to go to the local pub, they will. They will be friendly but keep to themselves and listen.
a good operative will have a reasonably good background story prepared. Most good operatives develop a background that has some basis in truth. It's just easier to remember. The operative will most likely use his or her real name but not their own address. Some consideration of the address issue may be necessary. Generally, an undercover operative will not invite any target personnel to his own home. If this is required to gain the person's confidence, it may be necessary for him to set up temporary accommodations somewhere else. a good agency will have a separate telephone line that can be answered appropriately on behalf of the undercover operative.
During the planning stages of an undercover operation, it will have been determined, based on the nature of the problem, how to ingratiate themselves with the target employees. For example, if it's a middle management theft problem, they will indicate at some point how they are stressed out with the mortgage and car payments. They will talk with employees, when it is appropriate to do so, about common problems and listen in turn to the stated problems of the target employees, developing and refining their approach as they proceed.
Often, the undercover operative will be put to a test. This is an especially delicate area. First of all, for the investigation to be successful in terms of an eventual criminal or civil prosecution, the investigator is not allowed to induce people to do things. any perpetrators must come to this on their own. Secondly, the investigator is not allowed to break the law. So if you have a substance abuse problem, how do you overcome such a test given the given the above restrictions. Well, the answer is you have to be a damn good liar. You have to smoke a joint without inhaling, you have to tell everybody that your brother died from crack and you would never smoke it, you have to substitute other acceptable but legal behavior.
The undercover operative will engage in a process known as roping. Before work they will attend the coffee shop, after work they will attend the local pub. They will go to the track with the bookkeeper and will go to the strip joint with the plant manager. During these occasions, the operative will act to gain the trust and confidence of the people they are with. They will learn about what is happening at the company and he will learn who the players are. Information developed during these occasions will direct the remainder of the undercover and will continue to provide information throughout the duration of the operation.
The undercover operative must be able to relate accurately their observations. Obviously, they can't walk around with a pen and a notebook. Consequently, the operative must make notes or communicate his information in a secret but contemporaneous way. Operatives may choose to make a phone call if it can be done safely, without arising suspicion on a daily basis. If this is not possible, the operative will make notes of people times and conversations on whatever is available, toilet paper cigarette packs or anything else that is useable. The investigator takes some risk in doing so and must take care to secure such notes in a way that they can never be observed by anyone. The investigation company must retain any such contemporaneous notes, as they may be relevant should the matter be prosecuted.
In some cases, a buffer or secondary undercover may be introduced into the operation to provide an outlet for the primary undercover to relay information.
In some extremely dangerous situations, no notes are taken and no phone calls are made. The operative is simply de-briefed at the end of the shift by his supervisor. The investigator is advised to make a contemporaneous report of his findings and is questioned about all the events of the day.
Investigation companies must catalogue and maintain the notes of the investigator regardless of the medium, toilet paper or whatever. These notes may become critical in later proceedings.
Operatives should be encouraged to participate in any company sponsored events or any activities in which the target group has invited them to participate provided that the activities are both legal and safe for the operative.
The operative is required to perform his assigned duties with a reasonable effort so as not to draw the attention of supervisors and get himself fired or reprimanded. On the other hand, he or she must not be so efficient as to be seen by the target group as an employee trying to make them look bad. Occasionally, the operative should be sick, or get to work late or have to leave early, just like any other employee.
During the course of his or her observations, the operative will document many different issues, some related to the specific matter that gave rise to the undercover but also to other issues such as safety, fire regulations, compliance with company policies and directives and supervisory effectiveness.
Managers should anticipate that they might read in the operative's report items, which may have an impact on their realm of operations. They may read derogatory comments about themselves from trusted supervisors or find out that a problem they had thought was addressed has simply been swept under the carpet. Managers should view this information not only with some degree of skepticism but with an open mind, since people very seldom will tell management the whole truth of what is actually going on in their respective areas of responsibility and they may well embellish their stories to the undercover operative.
When the UC operative first meets the target, his responsibility should be to assess the target giving attention to the following areas:
all of this may not be possible to ascertain during an initial meeting. However, it is the operative's job to observe as much as they can during the initial meetings. In this way, support personnel will gain a greater insight into who the operative is dealing with. Details about the target persons may be developed on an ongoing basis, i.e. full name where the person lives, marital status etc.
During first contact, the undercover operative should be polite, able to look the target in the eye, and not be aggressive or pushy. They should not make commitments to the target they are unwilling or unable to meet. They should be reticent, a cool smooth operator. They should avoid squirming or adjusting clothing to avoid being burned at the outset.
The undercover operative should take care to disclose only a limited amount of information about themselves. It is very important for the operative to remember exactly what information was disclosed and to who. If details not disclosed turn up in a conversation, it is probable that the operative's true identity is known or at the very least, that the target personnel have become suspicious of the operative and are fishing for information.
Often to be effective, there will be surveillance support for the undercover operative. In the cases of theft, it may be necessary to have surveillance investigators document the actual thefts or the movements of those suspected of theft. It may also be necessary to introduce other investigators as players in the undercover to act as family members or friends of the operative. In some cases, the operative may have identified certain physical areas at risk and a decision can be made to place those areas under electronic video surveillance.
In some, cases, depending on the level of danger of the operation, it may be necessary to have standby support for the operative in case he finds himself in a dangerous situation.
Often, when public social settings come into play, it is worthwhile to add undercover surveillance at those locations, independent of the primary undercover operative. If there is a local pub or club that many attend, it may be extremely beneficial to have secondary operatives there for the primary undercover and target personnel to meet together.
If such a setting exists, it may be wise for the secondary agent to perform a scouting mission to set up and become recognizable patrons prior to the arrival or meeting with the target and primary operative.
among the most important legal issues for consideration is that the undercover operative is not allowed to act as an agent provocateur. an agent provocateur is normally an agent of the state, who actively participates, in an illegal activity. Doing so tends to make any evidence gathered by that person tainted and not allowable in court.
In the case of private investigators, there are a couple of issues with respect to agent provocateur and becoming an agent of the state. Firstly, as long as the undercover operative, remains only an observer he is subject to the protection of the police. Once he or she actively becomes involved as an agent of the police, that protection is no longer there. In fact, if an undercover investigator participated in illegal activity, he or she is as likely as anyone else to be prosecuted by the police. Consequently, when illegal activity is uncovered, and it looks as though it may be necessary to involve the police, it may be necessary to introduce the police to the undercover operative at that time. For these specific purposes, it may be possible to employ a police officer in the buffer role.
In certain situations, an undercover investigator may be considered to be an agent provocateur without the involvement with the state. This would occur, if the investigator was used to infiltrate a union and actively participate in inciting the union into some action. From a practical point of view, most boards, tribunals and courts take a dim view of any undercover operative even joining a union. Clients would be wise to seek legal advice before proceeding in this area.
as a practical matter, the benefits of gaining some useful information about union activities are far outweighed by the risk associated with doing so. It can lead to licensing problems for the Investigative Firm and the Investigator as well as labour strife and litigation for the client. We recommend the client and the investigative firm agree that any reference to union activities not be reported to the client, that the operative be instructed to ignore this area and that if the operative inadvertently makes notes on such activities they not be reported on to the client.
If as he or she should, the undercover operative is unwilling to participate in any illegal activities, this may mean that the undercover operation itself will not be successful. Somehow, the operative must be able to give the appearance of condoning such activity without trying to promote it or actively participate in it. For example, he may fake a toke of a marijuana cigarette but it is unlikely that he would snort a line of cocaine. The professional undercover operative will find ways to make his non-participation in such things believable.
Often the legal issues surrounding an undercover operation are derived from similar circumstances in which the police conduct an undercover operation. The primary difference is whether or not the private investigator in an undercover operation can be considered to be acting on behalf of the crown, which is a certainty in the case of a police officer. If the investigator is not acting as an agent of the crown, then most often, he will not be considered to be an agent provocateur. If either a police officer or a private investigator is considered to be an agent provocateur, the courts may order that the identity of the undercover operative be disclosed to the defence in a criminal trial, since the accused has a right to make full answer and defence.
another important legal issue is that of entrapment. The rule of thumb is that limits must be placed on the operative's ability to intrude into the lives of persons. Not only must there be a documented reason to do so but no matter how strong the suspicion, the operative can not conduct him or herself in such a way as to manipulate or convince a target to do something that they would not do on their own.
For example, it would be inappropriate for an undercover operative to steal some item and make it known to the target that he had done so, for the purpose of gaining the persons confidence. To do so, might motivate the person into an activity (stealing) that he or she otherwise might not have done. There is always a fine line to be crossed in acting in a manner that will gain the confidence of the target but not be viewed by the courts as entrapment. If a target offered to sell stolen goods to an operative this would not be entrapment but if the operative suggested to the target that he would buy such items if the target would go steal them this is entrapment.
It is generally not accepted to simply test the virtue of people on a random basis. This can present an investigative problem if there are no specific suspects in the matter. If that is the case, operative's should restrict their investigations to what has been identified, such as a specific area within the plant or the shipping department or any other area for which there is a reasonable suspicion that an activity is happening there.
another related matter, and one that should be considered at the planning stages, is that the scope of the undercover operation should not be so broad as to interfere in the lives of persons, not because of genuine suspicion, but because the colour of their skin, quality of appearance or some other such broad measure is the motivation.
This must be balanced against the severity of the crime. For example, if there have been a number of employees sexually assaulted and the perpetrator has been documented to wear scruffy clothes and a red touque, people fitting this description are fair game. alternatively, it would not be acceptable to intrude into the lives of every similarly dressed person if the matter involved a small theft.
another issue that must be addressed is to what extent in the workplace are people's activities considered to be private. To what degree do employees have a reasonable expectation of privacy? Traditionally, people should be able to expect total privacy in change rooms, shower areas and bathrooms with almost certainty. This may present a problem for investigations of matters that take place primarily in one of those areas. For example, in some distribution type companies that experience theft off the shipping docks, sometimes items are secreted in a locker room before being taken off the premises. This is clearly illegal but does the company have the right to place an operative or a camera in the locker room to document the activity? Likely not.
If you stay away from the above described locations as well as any area where sensitive labour issues may be discussed you are probably alright. If you are unable to solve the problem without doing so, legal counsel should be consulted before proceeding. although many investigative firms have a solid knowledge of the law or legal resources with whom they may consult, operations that involve a serious intrusion into areas in which there is an expectation of privacy should first be reviewed with your own counsel.
There is a debate regarding the best way to close down an operation. How you decide to do it depends on a number of factors:
Obviously, the safety of the investigator is paramount. This is why planning the undercover is so important. If you are dealing with a dangerous target, steps should be taken to protect the investigator identity from the outset. If you know that you are going to disclose the investigator's identity eventually to a court, then you might as well use their real name but take steps to protect their true address etc.
It is always in everyone's interest to close down the undercover operation cleanly, that is to get the operative out without anyone knowing they have been there. This requires allowing some time for the proper situation to occur to terminate his employment. Perhaps they arrange to do something for which they can be fired, or perhaps there is a layoff coming up. If the company can delay taking action to an appropriate time of opportunity, the undercover agent's involvement will not be related to any action taken by the client.
Sometimes this is not possible. It may be that the extent of criminal activity is so severe that action must be taken immediately. Or safety issues may require immediate action. The police may become involved. If this is the case, steps must be taken to ensure that the operative is physically safe at the time his or her activities become apparent. any personnel records relating to the operative should be seized and secured.
at the end of the undercover operation, a full report summarizing the findings of the operative should be prepared for management. If it appears that there may be further proceedings, particularly of a criminal nature, a brief should be prepared for counsel indicating the nature of the offence uncovered if any, how they were carried out, a list of witnesses, and a log of evidence, if any, obtained.
an undercover operation is one tool that can be used to identify and solve internal problems. It should be considered only after a cost benefit analysis has been performed. Such an analysis must include however some of the qualitative issues such as employee moral, potential efficiencies and safety. In the absence of a strong business case, an undercover operation should only undertaken when there are other substantive issues that need to be resolved and for which there is no apparent alternative solution.
To be effective, a reputable firm must be selected, and allowed the time to engage an operative especially suited for the job. Budgets should be established and the technical problem associated with communication and payment worked out in advance. The client must work with the investigative agency during the planning stages to determine the best strategy and to plan when and how the operative will be introduced into the environment. The planning should also address how the operative will be removed.
Most importantly, the criteria for success should be set out and agreed upon prior to the commencement of the operation. This will help to focus the operation. Finally, the client must be patient. It takes time to forge relationships with strangers and although professional investigators are able to do so more quickly than others, being too aggressive too early can jeopardize the whole effort.
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