I am subscribed to a mailing list in which several forensic investigators converse about various issues. One such issue arose recently that struck me as slightly unusual, and some of the responses surprised me. The issue in question was simply “Do you bill clients for machine time?” The investigator was simply asking if we charge for time when the investigator is not working on the case but the computer is still working; things such as carving files or performing keyword searches. I do not know how many times I have had to leave a case overnight, or even over the weekend, in order to complete a task. All I know is that it happens frequently. So what are the flaws in billing for machine time? How can investigators and clients both be satisfied with the final bill? Should I charge my usual fee, or even a reduced fee, for the time that the computer takes to complete a process? My answer: it depends.
The variable in the answer is a case of exclusivity.
If you are an internal investigator or a law enforcement officer the article may not strictly apply to you, however I believe the principle of accountability applies to all regardless of their position or employer. We all have to report to someone whether it be employer or client. These people expect us to perform certain tasks in return for payment. If we are dishonest in our endeavors it will inevitably come back to haunt us. The best advice that I can offer? Be completely honest with your employer, clients, and whoever else to whom you are contracted.
Billing is a basic concept. We charge a certain amount of money ‘X’ per hour and do so many hours of work ‘Y’. Therefore X x Y = Z (where Z is the billable amount). The problem is that all ‘X’, ‘Y’, and ‘Z’ can be called into question if billing for machine time.
Look at your employment contract, it will likely state something along the lines of “you will not conduct business for anyone else during your working hours with…” This is a reasonable request as your employer should not have to pay you for time that is spent working for someone else. More to the point, why should clients feel any differently? Many investigators will find themselves, at some point, working on several cases at once. They may run keyword searches on two cases and, while that is processing, continue to work on a third. What should they charge in such circumstances? If, per se, you charge $200 per hour for your services would you charge for the work on all three cases simultaneously, totalling $600 per hour? The compuer has been working on three cases so why not charge that much? There are five potential pitfalls that can create a stumbling block for an investigator if they choose to do this.
Imagine trying to explain to an external auditor that you have earned three times your earning potential in a year. When the auditor looks at the total hours worked, and the fees charged for that work, how will you explain the discrepancies?
Surely if you’re going to charge for machine time it should depend on how quickly your computer can process the data. If you ran the same keyword search on the same case on two different computers the time taken to complete those searches would differ drastically depending on the specification of the computer. What complex calculation would you use to determine the hourly rate for the differences in performance? If you’re planning on charging for this you’d better have some answers as your clients may come back to you with this question.
Aside from the spec of your computer the thing that will affect performance will be how many cases are you working on at any given time. If you are running a keyword search on two cases simultaneously then the speed of the search could be halved, so do you charge half of your hourly rate? What happens if the search on one case finishes before the other? Do you charge half for the first hour taken and the full amount for the second hour? Do you sit and stare at your screen, making notes on when the first search started so you know precisely how much to bill?
As you can see, this becomes very complicated and can waste a lot of time.
Clients are not looking for the investigator with the fastest computer or the largest hard drive, the client is paying the hourly rate for your expertise in the field. They are not paying for processing power, they are paying for your experience and knowledge. The agreed hourly rate is for you, not for your computer. The client is paying a substantial amount of money to you, they do not expect to pay you regardless of whether or not you are physically working on their case.
What would happen if a client discovered that they were paying you while you were working for another client, or out shopping, or fishing, etc? How would others perceive you? Your reputation could well be on the line.
People may argue and say things like “What about my bills? The cost of running the computer, the cost of keeping the office open while a process is run, how do I recoup these expenses? The answer is quite simple. You do charge for these things but in such a way as to maintain your integrity. When quoting for work don’t simply estimate, take your expenses into account. The hourly rate should not only reflect your expertise, it should also take in to account depreciation of assets, such as computers, administrative efforts related to the case, as well as electricity, other consumables, and non-investigative staff. Doing this will enable you to invoice clients with the confidence that you have done everything honestly with your integrity in tact.
There is, of course, an exception to the rule. If you are called upon to perform an investigation outside your office (on-site) then the client should be paying you for the the time that you spend at the premises. This will include the amount of time to acquire any devices. You may ask ‘why the difference?’ It is down to exclusivity. If you are at your own desk you will have other tasks that you can perform that do not relate to that client. When you’re away from the office you are expected to give your full attention to the client, they expect exclusive access to your skills and knowledge while you are there. Even if you are there to only acquire a single hard disk drive, the time taken to acquire, regardless of how long it takes, should always be billable. Do not interpret this to mean that you should just kick back and wait for the process to complete. Use the time wisely, they are paying for you to be there so do something productive such as completing forms, tidying up your notes, getting details about the case from the client (if applicable), and so forth.
There are many issues that affect how and what we bill clients but it is important that we get it right if we want our client to return with future business. Remember the key is exclusivity. When in the office keep track of what time you spend in front of the screen working for the client. When you are not working for them, don’t bill them. This way you will ensure that you clients are happy with the cost of the work, all you have to worry about is the quality.
Lee Whitfield BSc (Hons) MBCS CCE EnCE is a digital forensic investigator and founder of Forensic 4cast.