HP Theater: No Smoking Guns, No Laws

WASHINGTON –- As political theater goes, the House Energy and Commerce Committee’s hearing into spy tactics HP deployed to plug its boardroom leaks delivered all the elements, starting with outrage and dramatic gestures.

Reads like a “third-rate detective novel,” said Rep. Tammy Baldwin, a Wisconsin Democrat.

“I don’t understand how an entire board of directors, all of them potential targets of this spy ring, and the CEO and general counsel [oversaw] so little when so much was going on,” said Diana DeGette (D-Colo.), during a hearing titled “Hewlett-Packard’s Pretexting Scandal.”

Committee members aimed their outrage at repeated denials by former HP board chairwoman Patricia Dunn and other senior management of HP, who asserted they were unaware that pretexting tactics used to snoop phone records were illegal.

Rep. Ed Markey (D-Mass.) called HP’s prior denials of who knew what and when the “Schultz Defense,” referring to a character from the television show Hogan’s Heroes.

“Some in a position of authority at HP may now be saying, ‘I heard nothing, I saw nothing, I knew nothing.'”

“Pretexting is pretending to be someone you’re not, to get something you probably shouldn’t have, to use in a way that’s probably wrong,” said Rep. Joe Barton (R-Tex.), chairman of the full committee on Energy and Commerce, whose subcommittee held Thursday’s hearing.

The now-infamous tactics included obtaining personal phone records through false pretenses (pretexting), physical surveillance, monitoring employees e-mail and instant messaging communications and attempting to plant spyware on a journalist’s computer.

Also hatched, (but not carried out) was a plan to plant spies in newsrooms.

“This is more than about how a company found itself in the business of trailing reporters, or even digging through their trash,” DeGette said.

What the hearing did not produce, however, was any likely chance that bills prohibiting pretexting would make it to a full vote, or even become federal law.

Barton and other house members said their own bill, HR 4943, the Prevention of Fraudulent Access to Phone Records Act, which would make pretexting illegal, passed unanimously out of the committee and with bi-partisan support.

Since then, Barton said, it’s disappeared down a “black hole.”

“I’m, of course, disappointed by delays this bill has experienced since it left the committee,” he said.

“I have asked to have it put on the floor as soon as possible. We must make pretexting clearly illegal. There is no room in our society for pretexters to get your records.”

With the current session of Congress winding down, and as members prepare to head home to campaign for mid-term elections, handicappers are giving any chance of the House or Senate passing pretexting legislation long odds. (internetnews.com was not able to reach the Speaker of the House’s office for comment on whether the bill would come to a full floor vote.)

At best, the House could decide to pass something during the lame duck session that will follow the November elections.

Even if it doesn’t, Markey maintained that pretexting is already illegal under the Federal Trade Commission Act & Wire Fraud Statute, as well as similar California laws.

Plus, the Telecommunications Act of 1996 added a new section that clearly states that customers’ phone records can only be disclosed by consumers or with their consent, he added.

Carriers are obligated, under Federal Communications Commission rules, to “establish a system for obtaining customer approval before release” of such records.

As Dunn insisted that -– until she learned the meaning of pretexting — she thought people’s personal phone records could be obtained through legal methods, committee members expressed disbelief.

“If I asked you to produce your own phone records, would you?” Barton asked Dunn.

To even more shocked laughter in the hearing room, Dunn said she would, depending on the circumstances.

The line of questioning for CEO Mark Hurd grew softer, as the day grew late.

Members expressed appreciation that he took responsibility for not paying closer attention to what he called a proper and serious inquiry into boardroom leaks that “became a rogue investigation that violated HP’s own principles and values.”

Hurd’s testimony and apology capped a long day of political theater, including a line of figures involved in the spy probe raising their right hands before offering sworn testimony, including HP’s general counsel, Ann Baskins, who oversaw much of the boardroom leak probe.

Baskins joined other figures in the case as, one by one, they told the committee they would invoke their Fifth Amendment right to protection from self-incrimination.

As for why the hearing was called when the committee had already endorsed legislation prohibiting pretexting, staffers said it could be viewed as a way to keep the public’s focus on the issue.

The committee’s work is slated to continue today without the blazing television lights and media interest generated by yesterday’s HP hearing. It plans to hear from FCC officials and major telecommunications providers about their concerns with pretexting.

Or the work on passing such a federal law could continue behind the scenes, as one committee member suggested Thursday.

“I think it might be helpful if you called the Speaker of the House this afternoon, and urged him to schedule a vote on this bill,” Rep. Jay Inslee (D-Wash.) told Hurd.

“Do you think he’d take my call?” Hurd replied.

“You betcha,” Inslee replied. “He’d take your call.”

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