|HP Admits Spying on its Directors via
Pretexting to Obtain Confidential Home Phone Records
9/6. Hewlett Packard Company filed a
Form 8-K with the Securities and Exchange Commission
(SEC), which belatedly discloses information regarding the resignation of a former Director,
Thomas Perkins, on May 18, 2006.
HP filed a Form 8-K on May 22, 2006, that disclosed the resignation, but not the reason
for the resignation. The just filed Form 8-K asserts that this was because Perkins "did
not provide any written communication to HP concerning the reasons for his resignation".
It also asserts that the May filing was "accurate and complete at the time of
The just filed Form 8-K is short, carefully worded, and lacks many of the pertinent
details being reported in various publications whose reporters have spoken with various
persons involved in this matter.
See for example, September 5, 2006,
story in CNET titled "Media leaks prompt HP board shake-up" by Dawn Kawamoto
and Tom Krazit, and Newsweek
"Intrigue in High Places" by David Kaplan.
HP's just filed Form 8-K states that HP "engaged an outside consulting firm
with substantial experience in conducting internal investigations and that this
firm had retained another party to obtain phone information concerning certain
calls between HP directors and individuals outside of HP". Moreover, this Form
8-K states that "the third party retained by HP's outside consulting firm had in
some cases employed pretexting".
Media accounts state that Patricia Dunn announced at a May 18 board meeting that she
had outside investigators conduct an investigation of board members to find out who had
had conversations with news reporters, particularly at CNET. The accounts add that this
investigation involved pretexting to obtain confidential home phone call records, and that
Dunn had identified who had spoken with CNET reporters.
These accounts also relate that after a long and stormy debate, Perkins resigned from
the board on the spot. Moreover, these accounts relate this his AT&T records had been
obtained by pretexting, but that he was not the director targeted by Dunn.
Perkins is also a Partner Emeritus of the venture capital firm of
Kleiner Perkins Caufield and Byers.
The HP web page
containing Directors' biographies states that Patricia Dunn "was named
non-executive chairman of the board of directors of HP in February 2005", and
that she has been a "member of HP's board since 1998".
Pretexting is the practice of lying to telecommunications carriers with lax
privacy protection policies to obtain by deception the confidential call
information of customers.
Legislative Activity. There are many bills pending in the House and
Senate that would add further regulation, and create
a specific criminal ban on the practice of pretexting.
For a summary of bills, see
"Rep. Smith Introduces Bill to Criminalize Pretexting to Obtain Consumer Phone
or VOIP Records" in
TLJ Daily E-Mail Alert No. 1,308, February 13, 2006, and
the "Law Enforcement and Phone Privacy Protection Act of 2006", sponsored by
Rep. Lamar Smith (R-TX).
Also, on June 21, 2006, Rep. John Dingell
(D-MI), the ranking Democrat on the
House Commerce Committee (HCC), wrote in a
for a hearing on pretexting that "On March 8, 2006, the Committee on Energy and
Commerce unanimously reported
the ``Prevention of Fraudulent Access to Phone Records Act´´. On May 2, 2006, this
bill was scheduled for consideration on the Floor of the House of
Representatives. Yet, with no notice or explanation, H.R. 4943 mysteriously
disappeared from the suspension calendar and it has not been seen or heard from
since. Members of this Committee, and the American public, should be told why
the Republican leadership yanked our bill."
Rep. Dingell added that "I suspect a clue can be found in the May 11 USA Today
article reporting that the National Security Agency (NSA) had persuaded AT&T, Verizon,
and BellSouth to ``voluntarily´´ hand over their customer records, without
customer knowledge or consent, so that the agency could analyze calling patterns
in an effort to detect terrorist activity."
He added that "Illegal pretexting -- the use of false or fraudulent statements or
representations -- is not limited to consumer telephone records, as our witnesses will
testify. With that in mind, on March 29, 2006, this Committee voted 41-0 to approve
the “Data Accountability and Trust Act”, which expressly prohibits pretexting for personal
information by data brokers. That bill is also in some kind of legislative limbo, with
reports that important consumer protections may be eliminated."
HR 4127 has been reported by the HCC, the House Financial Services Committee, and the
House Judiciary Committee. However, it has not yet been approved by the full House.
FCC. The Federal Communications
Commission (FCC) has announced nothing. It has authority under
47 U.S.C. § 222 to regulate the release by a "telecommunications carrier" of
consumer proprietary network information (CPNI). AT&T and the other board
members' carriers, but not Dunn or her investigators, are the entities within
its jurisdiction in this matter.
In addition, the FCC has an open rulemaking proceeding regarding its CPNI
rules. See, story titled "FCC Adopts NPRM Regarding Privacy of Consumer Phone
Records" in TLJ
Daily E-Mail Alert No. 1,308, February 13, 2006, and
titled "FCC Rulemaking Proceeding on CPNI May Extend to Internet Protocol
Services" in TLJ
Daily E-Mail Alert No. 1,310, February 15, 2006.
This NPRM is FCC 06-10 in Docket No. 96-115 and RM-11277. The FCC adopted its
NPRM on February 10, 2006. It released the
[34 pages in PDF] on February 14, 2006.
DOJ, FTC, and SEC. Neither the U.S.
Department of Justice (DOJ), nor the U.S. Attorneys Office for the Northern
District of California, have announced any criminal prosecutions or
investigations. Nor has the Federal Trade
Commission announced any actions or investigations under the civil Federal
Trade Commission Act, which prohibits, among other things, unfair or deceptive
trade practices affecting interstate commerce. Nor has the SEC announced any
action or investigation in connection with this matter.
However, HP's just released Form 8-K states that "HP recently has been informally
contacted by the Attorney General of the State of California requesting information"
and that it "has received a comment letter from the staff of the Securities and
Exchange Commission's Division of Corporation Finance".
HP's stock price opened on September 5 (the day that news accounts of
Patricia Dunn's activities were published) at $24.73. It closed at $25.83.
HP has not yet announced the departure of Patricia Dunn.
This matter also has the potential to affect not only HP and Dunn, but also several policy
debates in Washington DC. For example, it may provide further debating points for proponents
of anti-pretexting bills, and data privacy bills generally. It may similarly affect the FCC's
open CPNI rulemaking proceeding.
Also, Attorney General Alberto Gonzales and the DOJ have advocated data retention
mandates. Opponents of such mandates are likely to argue that if more data were
retained by telecommunications carriers and internet service providers, then there would be
more data available for fraudulent or unauthorized access by the likes of HP and Patricia
|McDowell Names Permanent
Communications Commission (FCC) Commissioner
Robert McDowell named
his permanent personal staff.
John Hunter was named Chief of Staff and Senior Legal Advisor on wireline issues. He
was previously Counsel to the House Government
Reform Committee. Before that, he was Of Counsel at Reed Smith McNair & Sanford.
He has also worked for the U.S. Telecom Association (USTA), United Telecommunications, Inc.,
and former Rep. Guy Vander Jagt (R-MI). He has also been a Chairman of the Virginia Public
Broadcasting Board, and an At-Large Member of the Fairfax County, Virginia Planning
Commission. Dana Shaffer has been McDowell's acting wireline advisor.
Cristina Pauzé (at right),
who has been acting legal advisor for media issues for several months, was named permanent
legal advisor. She was previously Associate Bureau Chief in the FCC's Media Bureau. Before
that, she worked in the Washington DC office of the law firm of
Morrison & Foerster. She has also been a policy
advisor at the National Telecommunications and
Information Administration (NTIA), and counsel at Teleglobe USA Inc.
Angela Giancarlo (at
left), who has been with McDowell for several months, is the legal advisor for wireless
and international issues. She was previously Associate Chief for Spectrum Policy in the
Public Safety and Critical Infrastructure Division of the FCC's
Wireless Telecommunications Bureau. Before that,
she worked in the Washington DC office of the law firm of
Hogan & Hartson.
Brigid Calamis was named Deputy Chief of Staff. Rafael Fernandez was named Staff
|More People and
9/6. Teri Rucker was named Democratic Communications Director for the
Senate Commerce Committee. She replaces
Andy Davis. She previously worked for
AT&T as director of public affairs. Before that, she wrote for National
Journal’s Technology Daily.
|About Tech Law Journal
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subscriptions are available for journalists,
federal elected officials, and employees of the Congress, courts, and
executive branch. The TLJ web site is
free access. However, copies of the TLJ Daily E-Mail Alert are not
published in the web site until one month after writing. See, subscription
P.O. Box 4851, Washington DC, 20008.
Copyright 1998 - 2006 David Carney, dba Tech Law Journal. All
|Washington Tech Calendar
New items are highlighted in red.
|Wednesday, September 6
The House will return from its August recess. It
will meet at 2:00 PM for legislative business. It will consider several
non-technology related items under suspension of the rules. Votes will be
postponed until 6:30 PM. See,
Republican Whip Notice.
10:00 AM. The
House Judiciary Committee's Subcommittee on
Courts, the Internet, and Intellectual Property will hold a hearing on
HR 3323, the
"Free Flow of Information Act of 2005". This bill would give reporters
the right to notice and a hearing before federal entities could compel them to provide
certain testimony, or seize certain records. It would also apply to certain records held
by communications service providers. See,
notice. Press contact: Jeff
Lungren or Terry Shawn at 202-225-2492. Location: Room 2141, Rayburn Building.
1:00 PM. The
House Judiciary Committee's
Subcommittee on Crime, Terrorism and Homeland Security will hold a hearing titled
"Legislative Proposals to Update the Foreign Intelligence Surveillance Act
(FISA)". It will address
HR 4976, the
"NSA Oversight Act",
HR 5223, the
"Surveillance Activities Commission Act of 2006 ",
HR 5371, the
"Lawful Intelligence and Surveillance of Terrorists in an Emergency by NSA
Act" (or "LISTEN Act"),
HR 5825, the
"Electronic Surveillance Modernization Act",
the "National Security Surveillance Act of 2006", and
the "Terrorist Surveillance Act of 2006". The witnesses will be Steve Bradbury
(acting Assistant Attorney General in charge of the Office of Legal Counsel),
Robert Deitz (General Counsel of the National Security Agency), Robert Alt
(Ashland University), and Jim Dempsey (Center for Democracy and Technology). See,
notice. Press contact:
Jeff Lungren or Terry Shawn at 202-225-2492. Location: Room 2141, Rayburn
|Thursday, September 7
The House will meet at 10:00 AM for legislative
business. It will consider
a bill to amend the Horse Protection Act. See,
Republican Whip Notice.
9:30 AM. The
Senate Homeland Security and Government Affairs Committee's Subcommittee
on Federal Financial Management, Government Information, and International
Security will hold a hearing titled "IT Projects at Risk: Is it too late to
save $12 Billion?". See,
notice. The witnesses will be Karen Evans (OMB) and David Powner (GAO).
Location: Room 342, Dirksen Building.
9:30 AM. The
Senate Judiciary Committee (SJC) may hold an executive business meeting.
The SJC frequently cancels or postpones meetings without notice. Location:
Room 226, Dirksen Building.
10:00 AM. The U.S. Court of Appeals
(FedCir) will hear oral argument in O2 Micro International v. Monolithic Power
Systems, App. Ct. No. 06-1064, an appeal from the U.S. District Court
(NDCal) in a patent infringement and trade secrets case involving power
management and security components for computers and handheld devices.
Location: Courtroom 203, 717 Madison Place, NW.
10:00 AM - 12:00 NOON. The Federal Communications
Commission's (FCC) Wireless
Telecommunications Bureau (WTB) will hold a training session of the new
filing interface for FCC Form 608 Application or Notification for Spectrum
Leasing Arrangement or Private Commons Arrangement. See, FCC
notice [PDF]. Location: FCC, Room TW-B445A, 445 12th Street, SW.
11:00 AM - 12:30 PM. The
American Enterprise Institute (AEI) will
host a panel discussion titled "National Security and Freedom of the Press".
The speakers will be Andrew McCarthy (Foundation for Defense of Democracies), Stuart Taylor
(National Journal), James Woolsey (former CIA Director), and Michael Leeden (AEI). See,
notice. Location: AEI, 12th floor, 1150 17th St., NW.
12:30 PM. Sen.
Joe Biden (D-DE) will speak at a luncheon hosted by the
National Press Club (NPC). Location: NPC,
529 14th St. NW, 13th Floor.
2:00 PM. The
Senate Judiciary Committee's (SJC) Subcommittee on Terrorism, Technology &
Homeland Security will hold a hearing titled "Keeping Terrorists Off The
Plane: Strategies For Pre-Screening International Passengers Before Takeoff".
Location: Room 226, Dirksen Building.
6:00 - 8:00 PM. The Federal Communications
Bar Association (FCBA) will host a reception for Federal Communications
Commission (FCC) Commissioners
Deborah Tate and
Robert McDowell. See,
registration form [PDF]. Prices vary. Location: Washington Hilton Hotel, 1919
Connecticut Ave., NW.
|Friday, September 8
Republican Whip Notice
states that "there are no votes expected in the House".
9:30 AM - 12:00 NOON. The Department of State's International
Telecommunication Advisory Committee (ITAC) will meet to
discuss the U.S. position on ITU budget shortfalls. See,
notice in the Federal Register, August 16, 2006, Vol. 71, No. 158, at Page
47286. Location: undisclosed.
12:15 PM. The
Federal Communications Bar Association's (FCBA) Legislative Committee will host a
brown bag lunch titled "Prospects for Communications Reform in the 109th
Congress". The speakers will be James Assey (Senior Minority Counsel, Senate
Commerce Committee), Johanna Shelton (Minority Counsel, House Commerce Committee), Lisa
Sutherland (Staff Director, Senate Commerce Committee), and Howard Waltzman (Chief Counsel,
House Commerce Committee). RSVP to Chris Moore at chris_moore at burns dot senate dot gov.
Location: Room HC-6, Capitol Building.
TIME? The U.S. Chamber of Commerce
will host an event titled "Talkers Magazine Forum on Intellectual Property
Rights". Talkers Magazine is
a trade publication that covers the talk media industries, including broadcast talk radio
and television, cable news and talk television, satellite radio talk, and podcasting. See,
For more information, contact Scott Eisner at ncfevents at uschamber dot com
or 202-463-5500. Location: U.S. Chamber, 1615 H Street, NW.
Deadline to submit reply comments to the
Federal Communications Commission (FCC) regarding the
initial regulatory flexibility analysis of the FCC's Second Further Notice of Proposed
Rule Making in its proceeding titled "In the Matter of Children's Television
Obligations of Digital Television Broadcasters" and numbered MM Docket No. 00-167. See,
notice in the Federal Register, August 25, 2006, Vol. 71, No. 165, at
Deadline to submit initial comments to the Federal
Communications Commission (FCC) regarding Neutral Tandem's petition for
interconnection with Verizon Wireless. See, FCC's Public Notice (DA 06-1603)
notice in the Federal Register, August 30, 2006, Vol. 71, No. 168, at
Pages 51617-51618. This proceeding is WC Docket No. 06-159.
|Saturday, September 9
9:00 AM - 12:00 NOON. The National
Archives and Records Administration's (NARA) Information Security Oversight Office's
(ISOO) Public Interest Declassification Board (PIDB) will hold a meeting to discuss
declassification program issues. See,
notice in the Federal Register, August 16, 2006, Vol. 71, No. 158, at Page
47258. Location: Washington Room, NARA, 700 Pennsylvania Ave., NW.
|Monday, September 11
2:00 PM. The
Senate Finance Committee will hold a hearing titled "NAFTA at Year
Location: Room 215, Dirksen Building.
|Tuesday, September 12
9:00 AM. The
President's Council of Advisors on Science
and Technology (PCAST) will hold a rare public meeting. The agenda includes a
discussion of "the PCAST review of the Federal Networking and Information Technology
Research and Development (NITRD) Program" and a "presentation on ethical and
societal issues related to emerging technology capabilities". See,
notice in the Federal Register, August 29, 2006, Vol. 71, No. 167, at Pages 51193-51194.
Location: George Washington University, Continental Ballroom, Marvin Center Building, 800
21st St., NW.
9:00 AM. The Department of Commerce's (DOC)
Bureau of Industry and Security's (BIS)
Regulations and Procedures Technical Advisory Committee will hold a public
meeting. The agenda includes discussion of encryption, the Wassenaar
Statement of Understanding on Military End-uses, and other topics. See,
notice in the Federal Register, August 30, 2006, Vol. 71, No. 168, at Page
51573. Location: Room 4830, Herbert Hoover Building, 14th Street between
Constitution and Pennsylvania Avenues, NW.
9:30 AM. The U.S. Court of
Appeals (DCCir) will hear oral argument in Nuvio Corp v. FCC, App. Ct.
No. 05-1248. Judges Ginsburg, Griffith and Kavanaugh will preside. Location: 333 Constitution
1:00 - 3:00 PM. The AEI
Brookings Joint Center for Regulatory Studies will host a discussion of the book titled
"Infotopia: How Many Minds Produce Knowledge" [Amazon], by
Cass Sunstein (University of
Chicago). The speakers will be Sunstein, Robert Hahn (
AEI Brookings Joint Center for Regulatory Studies),
Tyler Cowen (George Mason University), and
Robert Hanson (GMU). See,
American Enterprise Institute, 12th floor,
1150 17th St., NW.
6:00 - 9:15 PM. The DC Bar
Association will host a continuing legal education (CLE) seminar titled "How
to Litigate Patent Infringement Case". The speakers will include Patrick Coyne
and Jerry Ivey (both of Finnegan Henderson). The price to attend ranges from $80-$135.
For more information, call 202-626-3488. See,
Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.
|Wednesday, September 13
12:00 NOON - 2:00 PM. The
Federal Communications Bar Association's (FCBA)
Diversity Committee will host a brown bag lunch. This will serve as the Committee
organizational meeting. For more information, contact Russell Frisby at rfrisby at fw-law
dot com or 202-939-7900. Location: Fleischman & Walsh, 1919 Pennsylvania Ave., NW,
12:15 - 1:45 PM. The
Federal Communications Bar Association's (FCBA)
Engineering and Technical Practice Committee will host a brown bag lunch to
discuss upcoming activities. For more information contact Deborah Wiggins at
dwiggins at g2w2 dot com. Location: Goldberg Godles Wiener & Wright, 1229 19th
6:00 - 8:15 PM. The Federal
Communications Bar Association (FCBA) will host a continuing legal education (CLE)
seminar titled "Political Broadcasting 202". The speakers will include
Hans von Spakovsky (Commissioner of the Federal Election
Commission), Robert Baker (FCC's Media Bureau), Hope Cooper (FCC's Media Bureau), Ann
Bobeck (National Association of Broadcasters, invited), and
(Holland & Knight). The price to attend ranges from
$50-$125. See, registration
form [PDF]. Location: Lower Level Conference Room, Holland & Knight, 2099
Pennsylvania Ave., NW.