Forget stalkers and ex-spouses as the primary consumers of online black
market phone data.
The Electronic Privacy Information Center (EPIC) says
lawyers are the primary buyers driving the market, raising significant
ethical issues for the legal profession.
EPIC prompted a series of hearings and investigations involving Congress, the
Federal Communications Commission (FCC) and the Federal Trade Commission
(FTC) last summer when it complained
about online data brokers selling confidential phone records.
The investigations have so far focused on the identities of the data brokers, how they
obtain the information and what legal loopholes they are using to sell the
information.
According to EPIC, the FCC and telephone carriers, the brokers
get the data by impersonating the consumer and conning service
representatives out of the information, a practice known as pretexting.
As the answers come in, so does evidence concerning the buyer of the
information.
“There is mounting evidence that attorneys are top consumers of pretexting
services that acquire private records through impersonation, fraud or false
pretenses,” EPIC wrote in a letter this week
to state bar associations.
“In fact, the operators of these sites offering
records claim that attorneys are employing their services.”
EPIC claims attorneys paying the data brokers or urging clients to use the
brokers’ services are operating in a legal gray zone.
“We believe attorneys who hire investigators or other companies to engage in
pretexting violate ethical norms,” the letter states. “Attorneys have a duty
to be zealous advocates of their clients but must operate within the bounds
of law.”
The letter adds, “An attorney cannot hire others to operate outside the
bounds of law, and we believe that this practice of hiring pretexters or
counseling clients to hire them implicates [American Bar Association
ethics].”
In testimony before a Senate panel earlier this month, Robert Douglas, an
identity theft expert and CEO of PrivacyToday.com, told lawmakers the
“overwhelming majority” of phone records are purchased by attorneys, private
investigators (who are often working for attorneys), skip tracers, debt
collectors and the news media.
“Each of these categories of users and purchasers have at one time or
another made impassioned pleas to me that they need access to phone
records — outside of normal judicial review processes — to conduct what
they argue are socially beneficial services,” Douglas testified.
Attorneys use the records as a means of discovery in numerous types of
litigation, from divorce to criminal defense to business
intelligence.
Private investigators, skip tracers and debt collectors
find the information useful in locating witnesses and developing leads.
The news media — especially the tabloids, according to Douglas — buy
confidential phone records to track celebrity lives and to develop their own
leads in national stories.
“These buyers and their thirst for the information contained in detailed
phone billing records resulted in the market and the cash flow that fed and
encouraged the online sale of phone records,” Douglas said.
He further testified that methods for “stealing” phone records have been
known and in use for decades.
“With the advent of the Internet and the World Wide Web, it was only a matter
of time before some illicit information broker or private investigator
decided to advertise the availability of phone records on the Web,” he said.
From there, Douglas said, greed, not law or ethics, became the name of the
game.
“Once the first ads appeared and other brokers and investigators learned how
much money could be made selling phone records via the Internet — in some
instances more than a million dollars per year for small operations — the
feeding frenzy was on,” he said.
