Your Turn
A Commentary on the Hewlett-Packard leak-plugging scandal, appearing in the last Flash, generated a number of letters and emails. The Commentary, “FREE THE HEWLETT-PACKARD 5!” argued that corporations must be allowed to investigate suspected leakers in their own ranks so that the press can remain free to publish leaks, and also urged caution in criminalizing “pretexting” because of its similarity to some types of investigative reporting.
A selection of responses begins with the critique of LA Times’ Jon Healey and continues with letters from AG Bill Lockyer, among others. — Peter Scheer, CFAC executive director.
Investigative reporting is not the same as “pretexting”
I think you do a disservice to investigative reporters by likening their methods to pretexting, which is a form of identity theft. Reporters may hide the fact that they’re reporters, but they don’t — or shouldn’t — pose as real, living individuals in order to obtain those people’s confidential records. Those two behaviors are not analogous. There is a bright line between “generic misrepresentation” and specifically pretending to be someone else for the purpose of obtaining that person’s confidential records.
For starters, phone, financial, medical and video-store records are specifically protected under federal law. But beyond that, reporters who go beyond “generic misrepresentation” — that is, hiding the fact that they’re reporters, and instead pretending to be average citizens — and adopt pretexting-like techniques get us ALL in trouble. I mean, do you think investigative reporters should hack into corporate voice-mail systems by pretending to be employees of those companies? Because that’s not far removed from what we’re talking about here. See http://archives.cjr.org/year/98/5/chiquita.asp for a reminder of that sorry episode.
I think it’s important for journalists not to believe that their ends justify their means, which clearly some folks at HP did, because the backlash will undermine their work as surely as it did Mike Gallagher’s expose of Chiquita.
Jon Healey
Editorial writer
Los Angeles Times
Lockyer defends application of criminal charges to deter lying to obtain personal records
Re [the Commentary on Hewlett-Packard], this piece is so full of holes it’s hard to know where to start. It’s especially surprising coming from a journalist who should know to check his facts.
I did not indict anyone (grand juries do that). I filed a felony criminal complaint in Superior Court. I did not file charges against five HP officials, only two (Patricia Dunn and in-house counsel Kevin Hunsaker). The complaint was not filed in haste. It was filed after criminal prosecutors with a combined 74 years of experience thoroughly examined the evidence. And anyone paying attention to the political scene knows I did not need to file this case to gain an advantage over my November election opponent.
The laws we allege the defendants violated are neither “arcane” nor “anti-fraud” statutes. They are rooted in the right to privacy enshrined in the state Constitution. The main provision we rely on is a law that specifically prohibits what happened here: lying to obtain and review personal phone records, records protected by the right to privacy under California Supreme Court precedent.
Peter Scheer’s attempt to analogize HP’s actions to that of reporters who use misrepresentations to discover illegal conduct is misplaced. But for California’s laws, in addition to HP, there would be nothing to prevent stalkers, criminals, and even journalists from obtaining private phone records for whatever purpose they deem worthwhile.
Our attempt to hold lawbreakers accountable is not just an “unseemly rush” to justice. It’s out duty. The unseemly rush comes from journalists who go to print without the facts.
Bill Lockyer
California Attorney General
Scheer responds: The Attorney General is correct that the HP prosecution was initiated by complaint rather than indictment, and that of the five persons charged, only two are HP employees; the other three are security consultants working for HP. My apologies for these errors (which have since been corrected on the commentary). They are not only stupid, but they gave the Attorney General an excuse not to address the substance of the commentary, which is unaffected by the indictment/complaint distinction or whether the defendants are employees or consultants
Silencing Corporate Whistleblowers
by Dark Wraith
On the afternoon of October 11, 2006, I received an e-mail message from an organization calling itself the California First Amendment Coalition. The message header was “Flash: First Amendment and Open Government News,” surely something I’d be interested in reading. The body of the message was a re-print of the current lead article, Vol. 16, no. 16, on the Website of the organization. Clearly marked “COMMENTARY,” the title of the article, written by Peter Scheer and dated October 5, 2006, is “FREE THE HEWLETT-PACKARD 5!”
It was upon reading the title and the summary that all kinds of alarms went off in my mind, this despite the references on the Website to reputable places like the UC Berkeley Graduate School of Journalism and downright pseudo-liberal people like Arianna Huffington (see, however, my personal assessment of Ms. Huffington in the article “Put a Cork in It, Arianna”).
This California First Amendment Coalition group looks like such a bulwark of liberalism that the very header graphic on the Website reads: “California First Amendment Coalition: Protecting & Defending the Public’s Right to Know.”
So what’s up with such a fine, upstanding protector and defender of the public’s right to know calling for freeing the Hewlett Packard 5?
Continue reading here: http://uncapitalist.com/blog/
Pretexting produces results
I am a Private Detective, in practice since 1969. Prior to that I was with US Counter Intelligence. I am well thought of in the legal community, and would not be in my position, but for the use of pretexting as an investigative tool. . . . My firm was recently involved in a civil case in Philadelphia in which the Plaintiff’s entire case was developed with the use of a complex pretext. Although the defense challenged the pretext as the basis for dismissal of the complaint, the Court of Common Pleas ruled that my pretext was valid. . .
Interestingly, the judge, Esther Sylvester, had been President of Rosemont College when a female student was raped, stabbed, chained to a tree and left to die. She survived. I used a pretext involving current students and alumni to discover that there had been scores of violent incidents at Rosemont, but that they had been kept secret. . . . The settlement was enormous. I agree point for point with Peter Scheer’s commentary.
Russell Kolins
Russell Kolins Associates
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When access to personal information is overly restricted, only thieves will have access.
I have been a California licensed private investigator for over 30 years. The public needs to understand that pretexting, when performed by professionals, can produce public benefits.
But with the current trend of sealing records and over-protecting individuals’ privacy, the only people who benefit are thieves, fraudsters, kidnappers, child molesters, and a variety of other criminals. Plaintiffs in civil litigation and defendants in criminal prosecutions are increasingly hampered in their ability to develop evidence for their cases.
Can you imagine how I feel when a convicted pedophile recently released from prison after serving a 15 year sentence applies for a janitorial job with a local nursery school and my hands are tied by laws such as CIV §1786.18(a) (7) (barring disclosure of criminal convictions more than 7 years old). However, if the same person applies for a $250,000 life insurance policy, I could report that information to the insurer. Does that make any sense?
“Identity theft” is not “identity theft” in 99.9% of the cases; it is credit card fraud. And credit card fraud is due to the fact that vendors and merchants have been totally relieved of any duty to determine the identity of the card user although the laws demand and their contracts demand that they verify same. Signatures are not compared. Credit cards are not even touched by employees in most major supermarkets, department stores, etc.
Sue Sarkis
Sarkis Detective Agency