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AnonymousInactiveHP broke state laws
California attorney general ‘still investigating’ phone-data scandal
SAN
FRANCISCO – While state Attorney General Bill Lockyer has determined
Hewlett-Packard Co.’s clandestine investigation of its own board
members violated the law, he says it’s still unclear whether anyone
will be prosecuted.Lockyer said Thursday that the Palo Alto-based
company’s gumshoe tactics to root out the source of a media leak
violated two California laws related to identity theft and illegal
access to computer records.The company has landed in a mounting legal
and ethical debate for hiring a private investigation firm whose agents
impersonated HP officials and journalists to get phone companies to
hand over detailed records of home phone calls.But Lockyer said he has
not decided whether the company or anyone acting on its behalf will
face civil or criminal charges.“The question was, was a crime
committed? The answer is yes. Does that mean charges will result? Well,
we haven’t completed the investigation so we’re not yet certain as to
who committed the crime,” Lockyer said in a phone interview.“It’s
likely if evidence continues to come in the way it has that there will
be a prosecution,” he said. “But we’re not ready to go file a
complaint. We’re still investigating.”HP, meanwhile, disclosed that the
phone records of nine journalists were secretly obtained as part of the
company’s efforts to identify the source of its leaks. The San
Francisco Chronicle quoted HP spokesman Ryan Donovan as saying that HP
had given Lockyer’s office the list of reporters and that they have
since been notified that their personal information was compromised.The
nine include Pui-Wing Tam and George Anders of The Wall Street Journal,
Dawn Kawamoto and Tom Krazit of CNET Networks Inc.’s News.com and John
Markoff of The New York Times, those news organizations disclosed.HP
could face criminal charges.Experts in privacy and telecommunications
law say HP officials or the private investigators HP hired could face
criminal charges. The company could also be liable for civil crimes and
be subject to fines.Lockyer said HP’s antics violated directors’ and
journalists’ right to privacy, which is guaranteed in California’s
Constitution. He emphasized that no one involved in the investigation
is above the law.“The crime seems to have been committed by the data
broker, but that leads to the question of who knew what and when,”
Lockyer said. “How many others were part of the illegal activity — we
don’t know the answer to that yet.”People involved in the HP
investigation may have also violated a California Civil Code banning a
corporation’s communication of employee Social Security numbers to the
public.One of HP’s private investigators obtained the last four digits
of the Social Security number of HP director Tom Perkins. The
investigator called AT&T and impersonated Perkins, asking AT&T
to send a record of phone calls to and from his house in December 2005
and January 2006 to a free, Web-based e-mail account.Donovan declined
to comment Thursday on whether HP directors knew in advance that the
investigators would pretext. The company has not disclosed which
private investigation firm it employed.“I can’t imagine that an
investigator imagined the numbers,” Lockyer said.
SEC also reviewing the case
The
Securities and Exchange Commission is also reviewing statements HP
disclosed after Perkins resigned May 18 in protest over the
investigation, SEC spokesman John Heine said Thursday.The scandal has
focused attention on the age-old subterfuge: posing as someone else to
access their personal information. Known as “pretexting,” the practice
often violates state and federal laws, but attorneys and private
investigators say it’s a commonly accepted practice that lives in a
legal — if not ethical — gray area.Privacy and telecommunications
experts say no corporation or individual has ever been charged
criminally or civilly with pretexting.Although the federal
Gramm-Leach-Bliley Act prohibits financial institutions from pretexting
in most circumstances, investigators not affiliated with banks or other
institutions often pretext.Licensed private investigators in California
and many other states are also allowed to employ such strategies to
hunt down people who try to hide from the law, said Tamara Thompson, a
private investigator in Oakland who has been practicing for 15
years.“To come out and say no one should be able to get these records
under any reason doesn’t consider the circumstances under which people
benefit from investigators,” Thompson said.Investigators also pretext
to find kidnappers or those ordered to forfeit money or property to the
court or a winning party in a lawsuit. But the most common use of
pretexting is to get phone records of a cheating spouse to present in a
divorce case, investigators said.Pretexting ‘alarmingly easy’
Joseph
Sanscrainte, a telecommunications and privacy attorney at Bryan Cave
LLP, said it’s impossible to quantify the scope of pretexting. But he
said it was “alarmingly easy” to impersonate someone and get detailed
call logs e-mailed from a phone company.“People have actually created a
business model out of this,” Sanscrainte said.Pretexting is
increasingly drawing the ire of privacy advocates and
politicians.Eleven states have criminalized pretexting since 2005,
Sanscrainte said. California’s Legislature has considered at least
three bills concerning pretexting so far this year, but none has
passed.In May, the Federal Trade Commission filed federal complaints
against five e-commerce companies that obtained and sold consumers’
confidential telephone records.In February, the San Francisco-based
research firm Electronic Privacy Information Center wrote a letter to
California’s State Bar Ethics Committee, saying that pretexting is
likely a violation of American Bar Association rules. Attorneys are
among the most voracious customers of pretexting services; they use the
data in court to implicate or exonerate parties in lawsuits.“We believe
that attorneys who hire investigators or other companies to engage in
pretexting violate ethical norms,” EPIC Director Chris Jay Hoofnagle
wrote. “Attorneys have a duty to be zealous advocates of their clients,
but must operate within the bounds of the law.”HP’s liability hinges on numerous factors, attorneys say.
If
Lockyer or others want to take the case to court, the company could
claim they were not aware that the private investigator was planning to
pretext.“These are smart folks, prudent, and they probably hired a
first-class firm — not a guy who breaks into motel rooms,” said Ed
Harmon, a partner with the Pittsburgh-based law firm Thorp Reed &
Armstrong.Victor Schachter, chairman of Fenwick & West LLP’s
employment practices group, said HP and the private investigation firm
may share liability.“When you have an outside agency making false
pretenses about who they are and why they’re calling, it smells,” said
Schachter, whose firm often employs private investigators. “It’s
somewhat unknown whether it’s illegal, but I’d feel comfortable saying
this is very problematic.” -
AuthorSeptember 11, 2006 at 11:21 AM
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