After absorbing all the testimony from Thursday's HP hearings, I think it's fair to say that no one took full responsibility. According to the witnesses, it just happened, and nobody knows quite how, because to hear them tell it no one was paying attention except folks who weren't in charge. Dunn absolutely and firmly denied she was in charge. She didn't even know what pretexting was. If they were in charge, as Mark Hurd acknowledges the CEO ultimately is, then they were not paying attention.
So, it's nobody's fault, as far as the testifiers are concerned, despite some mild fingerpointing at each other. The buck stops nowhere.
It's maybe the folks who took the Fifth, then? Dunn seemed to think so. And Verizon has now sued the data brokers HP hired because they used "deceit" to get phone records. Imagine that. Deceit. In corporate America. Verizon's CEO is on HP's board. Too bad there's no law against hypocrisy. Cingular has sued one of the PIs also:
The Atlanta-based company said yesterday in federal court papers it wants Charles Kelly, his firm CAS Agency, and any of its agents to return all Cingular customer information they may have, give up any profits they made for getting the data and pay unspecified damages for their conduct.
The complaint, which follows a similar suit filed late Thursday by Verizon Wireless, also seeks an injunction against CAS, which is based in Carrollton, Ga.
Cingular is jointly owned by AT&T and Bell South, and it was Dawn Kawamoto's phone records at issue here. No doubt the PIs are asking themselves at this point, how did we get left holding the bag?
Cingular is suing saying that they used pretexting to get around the company's "safeguards". If there is one thing that is patently obvious by now, it's that the telephone companies don't have meaningful safequards. That's the real problem, and what happened will undoubtedly happen more and more unless they come up with better methods for determining who really is who. Using Social Security numbers, when you know that they are accessible to every PI in America and his cousin, is certainly not providing safeguards. Add runaway corporate board rooms and you have yourself a fine mess.
The lawyer for HP's recently resigned General Counsel Ann Baskin provided the House Committee some documents and a cover letter. The New York Times has the written material [PDF] her lawyer presented to the House Energy and Commerce Committee. Although she took the Fifth and refused to testify, the materials speak for her, and to my eyes they tell a somewhat different tale. Here's the complete transcript of the hearings from Thursday as well, so you can compare the two.
If you wish to know how easy it was to get the phone records, just read the Baskins materials. And for you lawyers out there, when you read about the legal research done to determine if pretexting was legal, because at least four people, including Baskins herself, wondered and she even asked, I think you'll be puzzling, is the way an answer was arrived at what you would have anticipated?
US Representative Joe Barton, after reading these and other materials, said this:
Records provided to this committee show that phone records were being pulled by H.P.'s internal investigation team for more than a year, with the approval and knowledge of both then-Chairman Dunn and General Counsel Baskins.
It's my understanding that the day-to-day operations were controlled by the company's lead ethics attorney, Kevin Hunsaker, so that the investigation could be protected by the attorney-client privilege.
Mr. Hunsaker would frequently report to Ms. Dunn, to Ms. Baskins, about the developments and the next steps in the investigation. Yet not until last Friday, September the 22nd, did H.P. force Patricia Dunn's resignation.
I also have to say that I'm troubled to find out that the board's outside counsel, Larry Sonsini, learned last April that the investigation included information from fraudulently obtained phone records.
Why didn't he immediately recommend putting the brakes on the investigation?
Did he ask any questions about the investigative methods employed by Ms. Dunn, Ms. Baskins or Mr. Hunsaker?
...And, again, pretexting is pretending to be somebody you're not to get something you probably shouldn't have to use in a way that's probably wrong.
By coincidence, just a week before Mr. Sonsini's e-mail, the Federal Bureau of Investigation testified before this same subcommittee about its position on the legality of procuring records through pretexting.
The FBI testified that there are compelling reasons to believe such operations violate federal law, including the Wire Act. In fact, over the next few days of hearings, we actually expect several individuals -- and several is actually; I should say numerous individuals -- to invoke their Fifth Amendment right against self- incrimination, which they are obviously entitled to do, and to decline to answer our questions about their involvement with pretexting for phone records.
It's funny to me that if you have to invoke your Fifth Amendment right, you're doing something that's legal. I'm still waiting for someone to describe a legitimate way, short of a subpoena issued by a judge or Congress, to obtain another person's phone records without their permission.
I'm happy to tell you that SFGate is reporting that some phone companies are now adopting stricter methods. And the pretexting bill that was on Gov. Arnold Schwarzenegger's desk was just signed. Also several Congresspersons in the article predict that the federal bill outlawing pretexting has a likelihood of being passed now. But what the article contributes is something I'd like to emphasize, testimony from the next day's hearing by reporter Christopher Byron of the New York Post, who became the target of pretexting and surveillance, he and his family, after he wrote an article critical of a Vancouver BC company named Imagis Technologies. His testimony addresses the why of it all, why it's wrong to do such things, and this is the part that no one at HP got right. They forgot that their targets were human beings and they lacked fellow feeling, empathy:
That was made clear by the experience of journalist Christopher Byron, who testified before Congress about his own battle with pretexters the day after the HP hearing.
The disastrous HP probe had involved the pretexting of nine journalists, to whom the Palo Alto company has apologized. Byron, who writes for the New York Post, said he went up against a more aggressive company.
"To discover that someone has spent weeks trying to obtain access to you and your family's most personal and private records and finally succeeded at it," he told the committee, "is like learning that a Peeping Tom has been spending weeks on end hovering at night outside your bedroom window, watching and videotaping everything that goes on inside."
That's what law is for. It's for those who have no heart or no conscience and who will do bad things if you leave it up to them. They'll do them if they think they'll be effective, no matter who gets hurt. They might even view the hurt as a plus. Humane, decent folks will likely do the right thing with or without a law, because they can feel for the other guy. They understand and empathize and won't do to others what they wouldn't like done to them. The Golden Rule, if you will. It is for the rest that societies need to establish laws, so it is clear to those without a working internal checks and balances ethics system where the acceptable line is.