Sunday, October 1, 2006

HP Ethics Firestorm Overcooked?

posted by Alan Childress

The shake-up at Hewlett Packard – after its Chair Patricia Dunn outed a leaking board member by having a PI firm obtain phone records by "some ruse" – garnered, you know, national outrage. Currently there's congressional investigation and headline comparisons to Watergate.  Less discussed in the firestorm is the role of the HP lawyers, including an internal ethics counsel, in the initial matter and its aftermath. That particular focus is being nicely raised by Brad Wendel and others in the Legal Ethics Forum, with a particular slant on the role of Plausible Deniability in corporate ethics and with the lawyers involved.  He quotes, for example, the chief ethics director’s ironic but lame response upon finding out Jim Rockford’s unsurprising methodology: "I shouldn't have asked."

I think the Forum and other communities are great places to discuss such issues, as well as the media and some parts of government, so the following is not directed at what the Forum is detailing (especially legal ethics and the ostrich effect). HP and its shareholders, of course, are right to care. The board member was right to quit in a huff and take any legal recourse available to him. HP can do what it wants with its Chair. But am I the only one who thinks the larger 'scandal' is being blown way out of proportion, particularly in the media and by posturing in Congress and elsewhere?

This is not Watergate. This is not monumental. This is not governmental. This is probably not all that unusual. If I had any confidence that Congress would address the real privacy issues underlying this clumsy keystone cop episode – systematic spying on employees by employers, overreaction to leaks to the press, the use of technology to track people, the more dangerous idea that government could do this to any of us and seems to believe it can – then the firestorm might do something. As it is, I suspect none of this will be the political agenda. Instead it seems to focus on this incident as an aberration at the highest levels rather than routine at the lowest ones, or potentially routine outside the workplace by government actors.  A bit more after the jump.

From another angle, I wonder whether all the outrage would be focused on Chair Dunn if her methods had uncovered a high level HP officer passing Defense Department computer secrets to Iran. Or proprietary HP technology to Sony in Japan. Or just some low level software programmer wasting company time blogging about his passion for pug dogs. Is the outrage and posturing pitched at us because so many of us can identify with the aggrieved board member? I do, but I guess I assumed an employer with millions at stake would be watching.  We all know emails are post cards, and phone records have been in the news all year as supposed fair game. Wasn’t he a bit naive to think he could leak with a reporter by phone and never have his company care enough to dig, even by stepping over the line? Someone might have told him that’s what borrowing his son’s girlfriend’s cell phone is for.

I simply don't recall this level of concern for privacy and personal integrity a few months ago when the Coke employee was caught trying to hawk cola secrets to Pepsi, or was it from Pepsi to Coke?  (Can't tell with the blindfold on.)  I know there are differences between the methods used to reveal the employee's efforts (though they are not as different as one might think), but I hate to think the main difference between this incident and that was the social status and identifiability of the watched worker, if you will.

I wish that public and media concern would really raise the core privacy issues that have been reformulated so profoundly in the last five years, due to seismic changes in technology and fear of terror. But I doubt the HP 'scandal' will, and do not think it is the most paradigmatic model to do so.

http://lawprofessors.typepad.com/legal_profession/2006/10/hp_ethics_fires.html

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