Want CNET to notify you of price drops and the latest stories?

Anti-HP hypocrisy in Congress?

As Congress looks into "pretexting," CNET News.com's Declan McCullagh asks if politicos are really in favor of our privacy.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read
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.