"There needs to be a federal law that addresses (phone record theft), otherwise none of us will have any privacy left," Sen. Bill Nelson, a Florida Democrat, said in January. A few weeks later, Sen. Olympia Snowe, a Maine Republican, added: "I urge the full Senate to consider this measure as soon as possible."
That never happened. Even though politicians had introduced at least 11 related bills by March--all targeting the shady practice of telephone "pretexting"--each of the proposals began to collect dust after the initial flurry of media interest subsided.
Now, however, theinvolving Hewlett-Packard's use of pretexting against board members, employees and journalists, including three reporters from CNET News.com, is breathing new life into the all-but-forgotten legislation. It's also given Democrats new cause to complain that Republicans have squandered their leadership position.
"We know this is not an abstract problem," Rep. Jay Inslee, a Washington Democrat, said this week. "We've seen with HP the situation where somebody in management basically hired a firm to do pretext calling to violate the privacy rights of the board members of this corporation to get their phone records."
The House of Representatives did approve one anti-pretexting measure (HR4709) in April by a unanimous vote. The bill generally punishes attempts to obtain fraudulent access to phone records with up to 10 years in prison. Unlike some other proposals, however, it would continue to permit pretexting that's performed by police or investigators hired by police.
The logjam arose in the Senate, which referred HR4709 to a committee, which in turn did nothing with it.
In a letter to Senate Majority Leader Bill Frist last week, top House Republicans invoked the HP scandal when criticizing senators for dragging their feet.
"Those concerns (about privacy) should have been enough to justify prompt Senate passage of the bill," the letter said. "However, as you will note from the attached recent press reports, the use of pretexting now extends into the corporate boardroom of a major publicly traded company." The letter was signed by Republicans F. James Sensenbrenner and Lamar Smith and Democrat Howard Berman.
Frist's office declined to be interviewed on the record. However, a Frist aide who spoke on condition of anonymity said that while it's a complicated topic, the HP flap could spur senators along.
The delay in the Senate has been caused not only by what critics call politicians' short attention spans and the lapse in media coverage--but also by a turf battle between two committees that have long been jealous of each other's prerogatives and authority.
The details go like this: The Senate Judiciary Committee has thrown its support behind one bill (S2178) that says pretexting would be a crime unless done by police or government contractors. The Senate Commerce Committee, on the other hand, is backing a rival measure (S2389) that focuses on civil fines and individuals' ability to sue for damages.
Because neither Judiciary Chairman Arlen Specter, a Pennsylvania Republican, nor Commerce Chairman Ted Stevens, an Alaska Republican, has managed to secure an obvious political advantage, the result has been a deadlock that's lasted for about half a year.
One Senate Commerce aide, who spoke on condition of anonymity, said senators' attention has shifted to the port security bill and that the intra-committee problems could probably be solved over the course of a few meetings. The Frist aide said that if an agreement could be reached, a vote could be scheduled very soon.
The closed-door squabbling among Republican committee chairmen has given Democrats some ammunition, which proved especially welcome with the hotly contested November election just a few weeks away.
"It's very interesting because we have about eight legislative days left before we adjourn, and at this point, the Republicans control the House, the Senate and the White House, they set the agenda, and they are just doing political stunts hoping to save their majority," Rep. Zoe Lofgren, a California Democrat, said in an interview with CNET News.com on Thursday. "They're not doing anything serious I can see, and I don't expect them to (advance anti-pretexting legislation) even though it's clearly warranted and something I think the public would appreciate."
At the moment, federal law clearly prohibits pretexting to obtain someone's financial records, and some states like California have laws on the books that ban telephone pretexting. But it's less clear whether federal law specifically prohibits all telephone pretexting. An HP lawyer wrote an internal e-mail in June that the company's "process was well done and within legal limits," according to an e-mail exchange published last week by The Wall Street Journal.
Legislation through media attention
It's not unusual for Congress to be sensitive to media coverage and revive dormant legislation as a result, privacy experts say.
"There are certain privacy issues that the media really pounces upon," said Beth Givens, director of the Privacy Rights Clearinghouse. "When that happens and there are multiple media sources reporting on the same issue, (politicians) pay attention."
History shows that privacy laws tend to be created erratically, spurred by one high-profile emotional anecdote after another. Congress approved the Video Privacy Protection Act in 1988 after a newspaper published Supreme Court nominee Robert Bork's video rental records. The murder of actress Rebecca Schaeffer, whose killer found her address through DMV records, led to the Drivers Privacy Protection Act of 1994.
Still, it's unclear whether Congress even has enough time left before the November elections to wrap up its discussions and send a bill to President Bush. Because politicians are planning to leave town soon to campaign for re-election, the House's target adjournment date is Oct. 6. And if the Senate makes any changes to a bill that originated in the House, the House would have to vote a second time.
Another complicating factor is an ongoing negotiation in the House of Representatives over the possibility of additional legislation and what form it will take. Even though HR4709 has been approved by the House, some Democrats would like to see HR4943 enacted instead. That bill awards more authority to the Federal Trade Commission
HR4943 was scheduled for a vote in March but was pulled after law enforcement agencies expressed concern, a House Democratic aide said. Rep. John Dingell, a Michigan Democrat, sent letters suggesting amendments but has not received a reply, the aide said.
In addition, a broader House bill (HR4127) dealing with data security and security breach notification would also ban pretexting. But jurisdictional tussles between the House Commerce and Judiciary committees have kept that bottled up as well. (See this for a complete list of bills.)
The stalemate has left anti-pretexting activists frustrated.
"I honestly think that it's honestly impossible, given the current makeup of Congress, to get almost any consumer protection bills through and to the president's desk," said Givens of Privacy Rights Clearinghouse.
Lofgren, the California Democrat, was more direct. "They're not doing anything but yapping, hoping that the American people won't notice," she said. "And they're in charge of the House, the Senate and the White House, and they're not producing very much."