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Senate Nearing Pretexting Vote

With an Oct. 6 adjournment date looming, U.S. Senate leaders are hammering out backroom compromise legislation to finalize a bill criminalizing making false or fraudulent statements to obtain phone records.

The controversial practice, known as pretexting, has gained national attention in the wake of the HP boardroom scandal centering on HP's methods used to obtain telephone records in an investigation of media leaks.

The U.S. House passed legislation in March banning the practice.

Senate efforts, though, stalled over jurisdictional squabbling between two committees that approved separate anti-pretexting bills earlier this year.

"There are two competing bills and we have asked the two committees to come up with one bill," Carolyn Weyforth, spokeswoman for Senate Majority Leader Bill Frist (R-Tenn.), told internetnews.com.

According to Republican sources contacted by internetnews.com, Sen. Ted Stevens (R-Alas.), chairman of the Senate Commerce Committee, is "working closely" with the Judiciary Committee and Frist to finish a "consensus bill that can be considered by the full Senate.

In March, the Senate Judiciary Committee approved the Telephone Records and Privacy Protection Act (TRAPP), and the Senate Commerce Committee passed the Protecting Consumer Phone Records Act.

Both bills seek to stop pretexting.

The TRAPP Act would make it a federal felony to obtain customer information from a telephone service provider by false pretenses or to access a customer account on the Internet to obtain billing information without authorization.

The Protecting Consumer Phone Records Act would make it illegal to acquire, use or sell a person's confidential phone records without that person's affirmative written consent.

The House bill passed on a 409-0 vote in March is similar to the TRAPP Act, and earlier this week House Judiciary Chairman James Sensenbrenner sent Frist a letter urging him to bring the House version up for a vote in the Senate.

Sensenbrenner explained the House Judiciary legislation was originally aimed at criminals using pretexting to obtain the identities of undercover law enforcement officials or confidential informants.

"Those concerns should have been enough to justify prompt Senate passage of the bill," Sensenbrenner wrote. "However ... the use of pretexting now extends into the corporate boardroom of a major publicly traded company."

Sensenbrenner also targeted HP's outside counsel Larry Sonsini's statements that pretexting is not illegal and a common investigative method.

"If an attorney of Mr. Sonsini's caliber (in our view mistakenly) believes that pretexting is not already a crime, then the time has come to clearly and unambiguously make such activity illegal," he wrote.

Meanwhile, the House Energy and Commerce Committee, which earlier this week sent a letter to HP seeking records and information related to HP's acquisition of private phone records, said it plans a Sept. 28 hearing as part of its ongoing, seven-month probe into data broker practices.

A committee spokesman said the hearing was scheduled before the HP scandal broke last week, but Subcommittee Chairman Ed Whitfield said Friday Sonsini would be asked to testify, along with outgoing HP Chairman Patricia Dunn and HP general counsel Ann Baskins.

The 1999 Graham-Leach-Bliley Act expressly forbids pretexting for financial information. Using the technique to obtain telephone records, however, falls into a legal gray area as far as federal legislation is concerned.