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September 6, 2006, Alert No. 1,443.
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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 filing".

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 story titled "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 story titled "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 HR 4709, 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 statement for a hearing on pretexting that "On March 8, 2006, the Committee on Energy and Commerce unanimously reported H.R. 4943, 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 H.R. 4127, 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 story 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 text [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 Dunn.

McDowell Names Permanent Staff

9/5. Federal 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 PauzéCristina 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 GiancarloAngela 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 Assistant.

More People and Appointments

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.

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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.

CANCELLED. 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", S 2453, the "National Security Surveillance Act of 2006", and S  2455, 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 Building.

Thursday, September 7

The House will meet at 10:00 AM for legislative business. It will consider HR 503, 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. See, notice. 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". See, notice. 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, notice and registration form [PDF]. Prices vary. Location: Washington Hilton Hotel, 1919 Connecticut Ave., NW.

Friday, September 8

The 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, notice. 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 Pages 50380-50382.

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) and 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 Twelve". See, notice. 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 Ave., NW.

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, notice. Location: 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, notice. 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, 6th Floor.

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 St., NW.

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 David O'Connor (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.