Perspective: Anti-HP hypocrisy in Congress?

Hewlett-Packard's phone records scandal might be enough to spur Congress into approving federal legislation banning the practice that's been stuck in committee for most of the year.

The problem, though, is that the proposals in front of Congress aren't likely to stop some of the most aggressive users of "pretexting": the FBI, the Department of Homeland Security and other law enforcement agencies.

Pretexting is like hiring a private investigator to break into someone's safe deposit box one evening because you're curious about their net worth.

They're simply immunized. Police who engage in pretexting and the shady private investigators they hire won't be affected. A CNET News.com chart of 11 supposedly "anti-pretexting" bills shows that all but four bills exempt police in one way or another.

Let's be clear about what pretexting is. It means committing fraud to acquire someone's personal records, such as phone calls, without their consent. It's like hiring a private investigator to break into someone's safe-deposit box one evening because you're curious about their net worth.

In the case of HP, investigators hired by the company lied to get the telephone records of board members, employees and journalists, including three reporters from News.com.

The outcry has been furious, with congressional investigators calling HP officials to testify at a hearing on Sept. 28 and federal prosecutors joining California's attorney general in looking into criminal charges. In addition, Republican and Democratic politicians even joined together (in an election year!) to demand that HP turn over key documents by Monday.

So why have our elected hypocrites never yowled about the FBI doing the same thing?

Too bad politicians can't get half as outraged about unethical behavior that affects far more Americans.

It's no secret.

Federal and local law enforcement officials were named as customers of Internet-based pretexting services in a June article on MSNBC.com. Some companies, like Advanced Research, have admitted in letters to Congress that they did work for the FBI. A high-level source at a cellular provider confirmed to me that the company's internal investigations of pretexting show that many police agencies are customers.

An Associated Press article named the Department of Homeland Security, the Department of Justice, the FBI, the U.S. Marshal's Service and municipal police departments in California, Colorado, Florida, Georgia and Utah as hiring pretexters. Time magazine has also reported on this.

A double standard
Instead of treating the FBI as critically as HP, politicians have taken pains to exempt law enforcement from supposedly "anti-pretexting" bills being considered. They've also bottled up legislation backed by Democrats that might have interfered with this practice.

Robert Douglas, an information security consultant who runs PrivacyToday.com and was hired to do research for a House of Representatives committee, resigned in April. Douglas' reason: He believed, according to Time magazine, that the committee was not fully investigating reports that the FBI and Homeland Security routinely purchase phone records obtained through pretexting.

You wouldn't know any of this if you believed politicians' rhetoric. Rep. Joe Barton, the Texas Republican who heads the House Energy and Commerce Committee, said in February that "I have been working during the last several weeks...to introduce legislation that makes pretexting for telephone records illegal. Period."

Period? Fine print in Barton's actual legislation (HR4943) says it does not prevent any "law enforcement agency, or any officer, employee or agent of such agency, from obtaining or attempting to obtain customer proprietary network information from a telecommunications carrier in connection with the performance of the official duties of the agency, in accordance with other applicable laws."

Translation: Barton's bill would create a new federal offense of a private investigator lying to AT&T in an attempt to get someone's phone records for HP. But if the same company were hired to do the same thing by the FBI, well, that's simply not covered. (State laws that may already prohibit pretexting wouldn't be affected.)

Another bill, HR4709, would go even further, carving out an exception for "an intelligence agency of the United States" such as the CIA or the National Security Agency.

This all amounts to an extreme case of double standards. HP's unethical behavior appears to have targeted no more than 20 people and was not, as far as we know, a routine procedure.

Too bad the solons in Congress can't get half as outraged about unethical behavior that affects far more Americans and, disturbingly, has become a routine practice by the very police agencies charged with upholding our laws.

Biography
Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.

More Perspectives

[zizzybaloobah]

Well done!

I was thinking the same thing myself -- I'm glad someone with an audience spoke up. This is so typical of Congress -- they only get mad when somebody is brazen enough to do something they themselves take for granted.

[gunplay]

Well done indeed!

Dear McCullagh,
You sir have one-upped my past little comment on Hypocrisy that I made in a previous article on this very same topic. By writing real news you are a patriot during these times of dumbed down and paid-off press. Good show :-)

[marileev]

HPGate = NSA-Gate

With the illegal "monitoring" practices the NSA's been caught on <a class="jive-link-external" href="http://www.iwantmyess.com/?p=37," target="_newWindow">http://www.iwantmyess.com/?p=37,</a> it's no surprise that congress is talking out of both sides of its mouth.

If it passes legislation pertinent to private companies like HP, then it must forces government agencies to be accountable to the same breach of privacy and breaking the law. Ohmigosh, government being accountable for it's own actions?!? Yeah, maybe one of these days, but not under this administration.

[josephatshop]

Is it better if you will be blown up one day by terrorists

What's this stupid comparison???? Some mega company's doing things to boost their profits forecasts whatever. To the FBI that wants to protect us from getting blown to smitherines............. <b>When will this anti Americanism stop already????????????</b>

[duerra]

Blah blah "terrorists", "think of the children", blah

There are other, LEGAL, channels for the government to obtain information, such as obtaining warrants. They don't need to resort to this kind of practice if they are operating under legal pretenses.

[Dalkorian]

RE: When will this anti Americanism stop already?

Josephatshop asked an important question, "When will this anti
Americanism stop already?"

The answer is easy and obvious - WHEN THE WARMONGERING
ENEMIES OF THIS GREAT NATION ARE FINALLY TAKEN OUT OF
OFFICE!

When you open your eyes and take a good hard look, you'll see
that our greatest enemies are currently in the White House -
TERRORIZING YOU into giving up your constitutionally protected
freedoms so they can turn our great nation into another socialist
regime.

Think you're safer than you were in 2000? Why? Are our ports
secured? No. Are the airlines secured? NO (unless you're just
worried about YESTERDAY'S threats and even that is
questionable - people make it through the security checkpoints
with banned items all the time). Are our mass transit systems
secured? NO. Are our nuclear power plants secured? No. Is the
current administration doing everything they can to protect our
constitution? NO, in fact they are doing everything they can to
destroy it. They've had 5 years to address multiple security
issues, but they have squandered the time away trying to
convince you the problem is that Iraq can fire a missle and hit
targets 92 miles away. (Go ahead and remind us of the biological
weapons they found in Iraq - just don't mention that the
weapons they found were already spent over 20 years ago in the
Iran/Iraq war!)

Secret prisons, Gitmo, torturing people, illegal wiretaps and
starting unprovoked wars with Muslim countries will NEVER
make us safer in any way shape or form. Even thinking it will is
extremely unAmerican and unpatriotic. All this will do is create
more animosity toward us and give rise to more terrorists.

Don't wait for this administration to be voted out of office, they
should *ALL* be impeached and tried for treasonous acts against
the American people. Or do you think it's OK to identify
undercover CIA operatives in the press as punishment for
questioning the administrations "unsupported views" (I'm being
nice here, they were flat out lying)?

Think about this - this administration KNEW Bin Laden had plans
to attack within the US borders using commercial aircraft as
weapons a whole MONTH before 9/11 at least. They knew that
Al-Qaida operatives were here taking commercial flying lessons
for a good year beforehand. So what did they do to try to stop
the attack? Read to school children in Florida?

Has anyone noticed that the FBI's Most Wanted Terrorist list has
Osama Bin Laden's name misspelled (who's Usama Bin Laden?)
and does NOT mention 911 at all? Doesn't anyone find it
incredible that we can find one camel-loving ********* hiding in
a spider hole dug in the middle of a desert, but we can't find
another camel-loving ********* running around the mountains
between Afghanistan and Pakistan?

WAKE UP ALREADY PEOPLE!

[protagonistic]

RE: Is it better if you will be blown up one day by terrorists

Your statement is excellent proof that the terrorists have already
won. They have forced us to change our way of live. Hey, why
not give up a few liberties in the name of security. We will never
miss them. And to answer your question, yes it is better to be
blown up by terrorists one day than to live your whole life in
fear.

How does that line go:

First they came for the Communists,
and I didnt speak up,
because I wasnt a Communist.
Then they came for the Jews,
and I didnt speak up,
because I wasnt a Jew.
Then they came for the Catholics,
and I didnt speak up,
because I was a Protestant.
Then they came for me,
and by that time there was no one
left to speak up for me.

[LordSnotrag]

Yes

Honestly, yes. It's better to risk being blown to smithereens than to have our freedoms and privacy taken away. Many Americans have given their lives to protect those rights. For us to simply hand them over because we refuse to take that same risk is an insult to their memory and what they fought for.

This is a war. But the war is not for safety. It is for our liberty.

This war is not only fought by soldiers against enemy countries. It is fought by all of us against not only those who would kill us, but by those who would cage us for our "protection."

You speak of "Anti-Americanism," and when it will stop. I'll tell you when the Anti-Americanism will stop: when people like you realize that, if anyone in this argument is going against the grain of our beliefs, it is you.

[trioxin]

Rather than abandon our ideals, Yes

Who is overseeing the people who perform these activities in the FBI? I agree that the FBI as an organization has our best interests at heart and would never spy on anyone for less than honest and dire reasons. What I do not agree with is that every single agent in every single circumstance has never bent the rules in either a minor or major way. With the very minor oversight in place with these programs, I find it very difficult to believe that never has there been an unnecessary magnifying glass placed over a perfectally innocent person's life. I also believe the ends do not justify the means. If an action is unethical, then it is unethical. I'm sickened from seeing just how many of our freedoms the terrorists can strip away, yes - the terrorists, by attacking our country. Speaking for myself - if keeping our country the same great nation it was before September 11th means I personally would have to die in an attack that could have been stopped by some illegal action taken by our government, then I would gladly do it. I would do it, and be happy knowing that we did not burn the ideals of a nation to save my one life. This is not anti-americanism - this is true patriotism - something that people understood before the word was redefined as placing a flag sticker on the back of your SUV.

[phillynets]

Ever heard of a warrant, pig-boy?

Great job. If there's some evidence that a police agency needs on me they should avail themselves of getting a warrant. If they need to use pre-texting to get the justification for a warrant the evidence ought to be considered tainted. I can want the private records of my neighbor but I can't legally go get them. The po-live can want my stuff too, but should have to go through the minimal standard of talking to a judge before accessing it.

[gggg sssss]

Shoot first

For better or worse, the FBI get to shoot people as well, something which is rather frowned upon when done by corporate directors or their hired guns - pun intended.

[meh130]

The Federal Telecommunications Act ...

... specifically allows the FBI to obtain telephone records for purposes of investigating terrorist threats.

No pretexting required.

See: Title 18, Chapter 121, Section 2709, U.S. Code

[GTOfan]

Let me get this right...

So, it's legal for the phone companies to refuse to divulge records without a warrant. Now, Congress wants to make it legal for law enforcement to obtain those records without a warrant by contacting the phone companies and pretending ("lying" "falsifying" by any other name) to be their suspect to obtain the records that they would not otherwise be entitled to?

I thought that if the police entered your home without your permission and without a warrant, any evidence collected would be thrown out in court. It's a good way to ruin an otherwise good investigation.

But now, ... ?