Sunday, 6 July 2008

Issues on licensing in the US

The amendments include the exclusions. To this end I am going to copy a little piece of another conversation (just mine) in this email as an introduction to legal theory for those who did not study law.

There are a number of methods used for the interpretation of legislation by the justices. Of the available topics, the majority of the current Supreme court fall in the legal formalism camp. It is their view that there is no need to inspect legislative history or intent. They state that this perspective is often unreliable and does little to confirm the intended plain meaning of the law. This makes it unlikely in their view that the use of interpreted meaning to resolve ambiguity is going to be upheld. They espouse the view that legislative history is not the law and that intent fails under the weight of the letter.

The current state of both the Supreme and Texan courts is that the majority of judges are Textualists and strict constructionists.
Textualist judges have contended, with much practical impact, that courts should not treat committee reports or sponsors' statements as authoritative evidence of legislative intent. These judges base their resistance to that interpretive practice on two major premises: first, that a 535-member legislature has no "genuine" collective intent concerning the proper resolution of statutory ambiguity (and that, even if it did, there would be no reliable basis for equating the views of a committee or sponsor with the "intent" of Congress as a whole); second, that giving weight to legislative history offends the constitutionally mandated process of bicameralism and presentment”.
[John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 1997]

The is best seen in the comment by former Supreme Court Justice Antonin Scalia. Justice Scalia stated that "[i]t is the law that governs, not the intent of the lawgiver." In fact, he later stated;
The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated-a compatibility which, by a benign fiction, we assume Congress always has in mind. I would not permit any of the historical and legislative material discussed by the Court, or all of it combined, to lead me to a result different from the one that these factors suggest.”

Much of this stems from post WW2 thought. Those such as Professor Cass Sunstein (in "Must Formalism Be Defended Empirically") have argued alone the lines of:
In the Nazi period, German judges rejected formalism. They did not rely on the ordinary or original meaning of legal texts. On the contrary, they thought that statutes should be construed in accordance with the spirit of the age, defined by reference to the Nazi regime. They thought that courts could carry out their task "only if they do not remain glued to the letter of the law, but rather penetrate its inner core in their interpretations and do their part to see that the aims of the lawmaker are realized." . . . .After the war, the Allied forces faced a range of choices about how to reform the German legal system. One of their first steps was to insist on a formalistic, "plain meaning" approach to law.”

This line of thought has become the predominant line of reasoning in the US.

In addition the “newer” law in this case explicitly excludes the old one from its domain. That is – the law (1702) states that it does not apply in the case of the others (eg 1001). This is explictially excluded by the terms of 1702 (the PI law).

I have to go into lawyer mode here. The condition is Expressio unius est exclusio alterius. This means that the express mention of one thing excludes all others. In the case of the professional code 1702, the explicit exclusions preclude their inclusion.

The opinion from 2004 remains valid. The issue, as occurs frequently is twofold.

  1. Public servants are commonly no more familiar with the law. That any other person and the opinion of common parties who work in a department is not law.
  2. Many people will see this as moot in any event as they do not hold either a PI or other accepted professional license.

For the latter reason, many ignore the latter argument as unimportant. This is far from the truth as there are important precedents that have already been decided in court for the other professions. To narrow the issue into a PI licensing fight is detrimental to the overall goals that people such as Jerry are attempting to fight.

Jerry’s paper does not account for the exclusions in the code. They should. For it is easier to get the outcome that is being moved (an independent body that is licensed) using these exclusions.

At present, code 1001 in Texas covers forensic engineering. Forensic engineering incorporates the analysis of a computer system for court.

Following the loss and sanction in 1979 for anti-trust (Sherman Act) violations, the engineering board has held a more open determination of aligned professional activities than is going to be achieved though the incorporation of PI acts.

What I have been attempting to convey is that there is going to be a requirement for a license. The other aspect is that a sub-body run by the engineering board that does not require status as a PE but rather acts as a paraprofessional engineer for the conduct of digital forensics is a better option.

Jerry’s take on the accountancy exclusions; "while performing services regulated under Chapter 901" have failed to consider that forensic services are included in TX occupations code 901. The distinction is that there needs to be a formal engagement letter that adheres to the stipulations of the rules defined by the AICPA. In fact, the AICPA has a defined Forensic & Litigation Services Committee and sub-group.

Working for a member firm that has affiliate offices in Texas, I can categorically state that the accounting profession is acting within the strictures of the law while still conducting digital forensic engagements in Texas. This is without a PI license. This is without being hounded by the Texan Attorney General’s department.

In fact, the association of Certified Fraud Examiners in Austin, Texas issued position papers detailing the use of “Computer Forensics Procedures and Tools for Fraud Examiners” in 2000. The exclusions under the Texas code have not altered the position of the AICPA or the CFE. In fact, it is a long held position of the AICPA that examinations into fraud include that the “trail of evidence in an investigation may start with computer login records from a mainframe, server, firewall, or PC, which can substantiate the date and time a user entered or exited a computer system”.

Other than myself (who is known for being outspoken and at times would be better off learning to shut up and not help others in need where there is no personal self interest), you will note a distinct absence of comment from those who are either PEs or CPAs or employed in this manner. There is a reason for this. Both these groups are excluded from the PI bill and are staying out of the media on the issue. They have nothing to win (they are already allowed to practice) and only something to lose by helping.

In fact, there is US federal law that empowers CPAs and PEs with the right and also obligation to investigate fraud. The Securities and Exchange Commission has requirements that preclude PIs who are not CPAs and also does not require the CPA to be a PI.

As for the opinion I quoted dated in 2004, the current position of the National Association of Forensic Engineers states:
Forensic engineering is the application of the art and science of engineering in the jurisprudence system, requiring the services of legally qualified professional engineers. Forensic engineering may include the investigation of the physical causes of accidents and other sources of claims and litigation, preparation of engineering reports, testimony at hearings and trials in administrative or judicial proceedings, and the rendition of advisory opinions to assist the resolution of disputes affecting life or property.”

For how the engineering board in Texas will apply section 1001 of the code, see:
http://www.tbpe.state.tx.us/nm/ForensicEngineering.pdf

From this, you can note the board of engineering is far more forgiving than a body of PIs. They are more open to positive actions than the other boards.

As for a comment I have received that there will never be a unified standard for professions across the states in the US. I have to disagree. Both the AICPA and National Association of Forensic Engineers have a unified exam and the boards of each of the states apply the rules of the federalised body. So, this has already occurred. Precedent is set, it is up to those in digital forensics to follow suit and get our act together.

The issue of exclusion and control came up in the US Supreme court in cases such as National Soc'y of Prof. Engineers v. United States, 435 U.S. 679 (1978). Here the act to take the Texan law to the Supreme court on the basis that it “suppresses, competition, does not support a defence based on the assumption that competition itself is unreasonable” . Pp. 435 U. S. 686-696. 435 U.S. 679. For the reason that there is competition, this course of action will fail. The states have a right to license the professional activities within its borders. This right has been upheld in the US Supreme court. The exceptions that allow other professions to act means that the PI law is not under these interpretations unlawful and do not violate the Sherman Act.

So, is the plan to get nowhere and argue the same points? To fight the wind like Don Quixote (which helps those who advocate a PI board control) in fighting for a removal of the PI codes?

Or rather is the effort better directed at formulating an acceptable alternative that is aligned to the needs of digital forensic practitioners?

Waste time fighting my views if you like, it costs me nothing and I have nothing to lose on the point. However I do have something to add, which, perchance also gives those who are disavowing my help most fervently a win. For tearing down my arguments gains nothing but a loss, but also does not stop me from practicing if I go on secondment with my firm (a firm of CPA's) in Huston. However, if you do listen I am attempting to offer an alternative approach that may result in the consequences that are desired.

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