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HP Scandal Ignites New Pretexting Battle In Congress

By Martin H. Bosworth
ConsumerAffairs.com

September 28, 2006

Calling Records • FTC Shuts Down Pretexting Operation • Phone Pretexters Get Off Cheap • Verizon Wireless Changes Customer Data Policy • FCC Strengthens Rules For Phone Privacy • House Tries Once More to Pass Pretexting Bill • Pretexting Bill: Pretense or Reality? • Hewlett-Packard Pays $14.5 Million to Settle Pretexting Suit • HP Scandal Ignites New Pretexting Battle In Congress • AT&T Sues Calling Record Brokers • Sprint Nextel Settles Case with Florida Data Broker • Feds Sue Calling Record Vendors • Illinois Lawsuit Charges Data Brokerages • Florida Judgment to End Data Broker's Business • Florida Investigates Fake Caller IDs • California Sues Data Trace USA for $10 Million • Missouri Sues Datatraceusa.com • Florida Sues Data Broker Over Sale of Phone Records • Texas Sues Companies Selling Telephone Calling Records • Websites Hawking Phone Records Shut Down • FTC Vows to Stop Illicit Sale of Cell Phone Calling Records • FTC Pledges "Vigorous" Pursuit of Cell Phone Record Sales • AT&T Accused of Eavesdropping, Calling Record Sales • Sprint Sues Cell Phone Record Brokers • Missouri Shuts Down Locatecell.com • Texas Probes Cell Phone Calling Record Sales, Missouri Files Suit • Illinois Sues Company Selling Cell Phone Calling Records • Outcry Over Sale of Cell Phone Calling Records

The spy scandal involving Hewlett-Packard employing private investigators to acquire HP executives' cellphone calling records has led to renewed calls for Congress to pass legislation against "pretexting."

Both the House and the Senate have bills in the docket that criminalize attempts to get another individual's cellphone records under false pretenses.

But a "poison pill" introduced by Sen. Ted Stevens (R-AK) may torpedo the legislation by tying it to the controversial NSA warrantless surveillance program.

According to inside sources, both Stevens and Joe Barton, heads of their respective Commerce Committees in the Senate and House, have versions of anti-pretexting legislation ready to go, but the two chairmen can't reconcile differences in their bills.

Stevens' bill hinges on federal law preempting existing state law that mandates phone companies protect the privacy of their customer records.

Investigators Complain

If Stevens succeeds in getting the preemption language into the final bill, it could block state investigations into the cooperation between the NSA and major telecom companies to perform domestic surveillance on customers without warrants.

Civil liberties groups such as the ACLU and EFF are opposing the surveillance program in both state and federal court.

Barton has said he wants the stronger measures in his version of the bill to prevail, such as notifying individuals that their information may have been acquired by third parties using pretexting.

"I am always willing to work with my friends in the Senate, but I'm not going to let them gut the House bill that came out of my committee," he said, according to Information Week.

Both the House and Senate had brought pretexting bills to the floor earlier in the year, after AMERICABlog's John Aravosis brought the issue of pretexting to national attention through buying the phone records of retired Army General Wesley Clark, a past and potential future presidential candidate.

The outcry over pretexting led numerous states and cellphone companies to file lawsuits against third-party record sellers such as LocateCell.com and Celltolls.com. The FTC agreed to step in and "vigorously" pursue companies that purchased customers' cellphone records and resold them to third parties.

After the House of Representatives passed a bill criminalizing pretexting 409-0, it seemed as if the Senate would also pass a similar bill and get the legislation into law quickly. But both bills then mysteriously disappeared from the legislative docket.

It was later revealed that many state, local, and federal law enforcement agencies, as well as lawyers, were purchasing cell phone records for their own cases, and allegations surfaced that the NSA and the Department of Homeland Security might have been engaging in pretexting as part of their surveillance programs.

Attempts to investigate the allegations have so far been unsuccessful.

Campaign Fodder

Stevens and Barton are both looking for legislative successes to take home as the Congressional session winds down and campaign season ramps up.

Both men authored versions of massive new telecommunication legislation but while Barton's bill quickly cleared the House, Stevens' bill was bogged down by opposition to the bill's lack of protections for net neutrality.

Stevens recently conceded that he did not have the 60 votes in the Senate needed to shut off debate and pass the bill, and might have to break it into separate pieces of legislation.

Members of HP's top brass are currently testifying before Congress on how former chairman Patricia Dunn allegedly employed a private security firm to purloin the calling records of other HP executives, as well as those of several reporters, in order to prevent leaks of confidential company information.

The majority of witnesses for HP have been exercising their Fifth Amendment rights against self-incrimination by refusing to testify.

The scandal has also led to a series of resignations. In addition to Dunn, HP's longtime general counsel Ann Baskins announced her resignation just prior to refusing to testify before the House committee investigating the pretexting scandal. CEO Mark Hurd stepped in to succeed Dunn as chairman in the interim, though questions about his role in the pretexting scandal continue.

As members of Congress lambast HP for performing dubious and criminal acts that invade privacy, the question needs to be asked as to why Congress didn't pass a pretexting bill when it had the chance, and why it is only doing so now with the promise of upending state investigations into an even worse violation of consumer privacy as a result.

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