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Pretexting Bill: Pretense or Reality?

GOP-Led Congress Maneuvering Til the End

By Martin H. Bosworth
ConsumerAffairs.com

December 8, 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

Daggers are being sharpened as the lame-duck GOP Congress looks to leave behind as many sharp edges as possible for the incoming Democratic-led Congress.

Among the more arcane proceedings -- the Senate is gearing up to pass a bill criminalizing pretexting, the practice of posing as someone else to get access to their phone records, before the 109th Congress finishes its business this year.

Senate Majority Leader Bill Frist is said to be "fast-tracking" a bill similar to one passed in the House, that would punish unlawful access to customer telephone records with prison sentences of as much as 10 years.

The issue of pretexting first hit the limelight early this year, with revelations that individual phone records were on sale to third parties for less than $100.

The exposure of pretexting led to multiple lawsuits by phone companies against the resellers, and cries for strong legislation to make pretexting a criminal offense.

A Victory, Then Silence

The House of Representatives passed a bill criminalizing pretexting by a whopping 409-0 margin, but the bill then disappeared from the legislative calendar, and the issue vanished from the headlines.

It was later discovered that state, local, and federal law enforcement agencies were frequent users of pretexting, leading to speculation that agencies such as the Department of Homeland Security and the NSA had quietly lobbied to kill the bill.

Renewed pushes for anti-pretexting laws were further undercut by attempts to tie the laws to preemptions of state investigations of the NSA wiretapping program. Sen. Ted Stevens (R-AK) wanted the laws to override state laws governing criminal misuse of telephone records, a move opponents said was deliberately calculated to halt investigations into the controversial domestic surveillance program.

The new pretexting bills being fast-tracked in Congress grant specific exemptions to law enforcement agencies to engage in pretexting, leading to criticism from some civil rights and privacy advocates that the new laws will not accomplish much.

There's also a degree of political gamesmanship. Outgoing GOP leaders are trying to pile up legislative victories in the final days of the lame-duck session, hoping to steal thunder from the incoming Democratic leadership. Privacy is one of the areas Democrats have staked out for early action in the next Congress.

Pretexting Preempted

The death and resurrection of pretexting laws on the federal levels has an ironic parallel in California's own pretexting saga. The state had been pushing a strong anti-pretexting law, only to have it killed after furious lobbying by the Motion Picture Association of America (MPAA).

Why would Hollywood care? Good question.

Turns out the MPAA, along with the Recording Industry Association of America (RIAA), frequently employ investigators who use pretexting to track down movie and music pirates. The two entertainment lobbies combined their political muscle to kill California's bill.

Mere days later, the scandal of Hewlett-Packard's usage of pretexting to gain information on its own executives and outside reporters broke.

Former HP chairwoman Patricia Dunn stepped down amid charges that she hired investigators to ferret out leaks of corporate information, and the private eyes used pretexting to gain access to the phone records of other HP personnel.

While Dunn and several other former high-ranking execs face criminal charges under California law, HP ponied up a $14.5 million settlement in a lawsuit brought by state Attorney General Bill Lockyer over the case.

The bulk of the settlement fund will go to a "Privacy and Piracy Fund," designed to cover investigations into violations of privacy and intellectual property, such as -- you guessed it -- movies and recordings.

Thus, in a supremely ironic victory of 1984-style doublethink, the penalty exacted from HP for pretexting will be used at least partly to investigate small-time thievery of movies and recordings produced by the industries that teamed up to kill legislation against pretexting.

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