Monday, October 2, 2006

Making "Pretexting" a Crime

At the House Energy & Commerce Subcommittee hearings on the Hewlett-Packard internal investigation that involved pretexting to obtain private telephone records, some of the Representatives railed at the H-P witnesses, particularly former chairwoman Patricia Dunn and outside counsel Larry Sonsini, that the practice is already a crime.  Yet, it is not entirely clear what federal statute the "pretexting" violated, although as discussed in an earlier post (here) prosecutors could stretch the wire fraud statute to cover the conduct of the private investigators, although defense lawyers would certainly challenge the application of that law to their clients.  Whenever conduct appears to slip through the cracks, the legislature is often quick to fill it in.  California adopted a law (here), signed by Governor Schwarzenegger on Sept. 29, that will make the following a crime:

Any person who purchases, sells, offers to purchase or sell, or conspires to purchase or sell any telephone calling pattern record or list, without the written consent of the subscriber, or any person who procures or obtains through fraud or deceit, or attempts to procure or obtain through fraud or deceit any telephone calling pattern record or list shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both a fine and imprisonment. If the person has previously been convicted of a violation of this section, he or she is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year, or by both a fine and imprisonment.

The House of Representatives passed a bill, HR 4709 (here), in April 2006, by a 409-0 vote no less, that would add the following to the federal criminal code:

Criminal Violation -- Whoever, in interstate or foreign commerce, knowingly and intentionally obtains, or attempts to obtain, confidential phone records information of a covered entity, by --

(1) making false or fraudulent statements or representations to an employee of a covered entity;

(2) making such false or fraudulent statements or representations to a customer of a covered entity;

(3) providing a document to a covered entity knowing that such document is false or fraudulent; or

(4) accessing customer accounts of a covered entity via the Internet, or by means of conduct that violates section 1030 of this title, without prior authorization from the customer to whom such confidential phone records information relates;

shall be fined under this title, imprisoned for not more than 10 years, or both.

The statute defines a "covered entity" as a telecommunications company or those who provide internet calling service.  The House bill has been held up in the Senate by a jurisdictional fight between the Commerce Committee and Judiciary Committee, which have competing bills.  Always nice to see that sharing toys remains a problem long after people have stopped playing in sandboxes.  An AP story (here) discusses the turf war in the Senate blocking the legislation.  (ph)

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