Is There A Defense Of Pretexting?

from the defending-the-indefensible dept

Remember the HP pretexting scandal? While charges had already been filed against company insiders, up until yesterday, the actual firm that did the pretexting had yet to have charges brought upon it. Now the feds have thrown the book at private investigator Bryan Wagner for gaining access to a reporter's phone records using the controversial method. In addition to the direct legal action, there have been several calls by politicians to strengthen and clarify laws that would ban pretexting. Similar proposals have been made in Canada, prompting a Canadian private investigator to write a blog post defending the practice (via The Daily Caveat). The PI's argument is that there are plenty of legitimate uses of the practice, particularly in more grave situations, such as investigating a kidnapping or collecting from a deadbeat. He argues, more broadly, that deception is a key part of all law enforcement, both public and private, and that pretexting is just a one form of deception. Of course, it's easy to argue by making an appeal to emotion, as he does by bringing up kidnapping. Then again, it seems like much of the outrage surrounding the HP case came from revulsion over spying on a reporter, as opposed to the specific tactic that was used. Obviously, the law needs to protect people from having their privacy pried into and abused, but it's easy to imagine politicians going too far in their zeal to be seen as champions of a popular issue.


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  1.  
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    Billy Mahana, Jan 11th, 2007 @ 9:23am

    Politicians try

    to act like they are helping.
    As has been stated in I don't even want to count how many other Techdirt articles, again politicians will probably jump on it to act like they are doing something, rather than actually consider the consequences of their actions.

    But hey, isn't America famous for that to a large extent anyways?
    *grumbles*

     

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  2.  
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    Greg, Jan 11th, 2007 @ 10:09am

    Uhhh, no. Just no.

    If the cops (you know, the actual law) want your phone records, they can get them. Via warrant or subpoena or whatever. They don't go around faking your identity to find out who you called, because they don't have to. It's the same result, but the process is actually legal, with paper trials and judicial oversight.

    PIs have none of that, so they resort to this "pretexting" crap. Once they start breaking the law in the course of investigating a corporate leak that isn't even a crime, they're crossing the line to vigilante justice, and I'm not OK with that. I hope they nail the guy to wall, if just to send the message to corporate America that this is not OK to do.

     

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  3.  
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    misanthropic humanist, Jan 11th, 2007 @ 10:21am

    this uncharming man

    "He argues, more broadly, that deception is a key part of all law enforcement, both public and private.."

    Deception is only necessary where the investigator lacks the charm, authority or power to correctly obtain access or information.

    Notice how the author skews the object from public law enforcement (who do have the authority and power) to private investigations (which do not).

    I cannot speak for the USA but criminal offences of fraud at English Law include obtaining property by deception, obtaining services by deception and obtaining a pecuniary advantage by deception. If information is to be regarded as property then this clearly applies.

    In practice just about everything in modern life involves some element of deception whether it be a craftily worded contract or subtly misleading advertising.

    I mention charm. This is a lost art. I'm sure everyone remembers the scene in "All the Presidents men" where Woodward and Bernstein (Hoffman and Redford) play a whole bunch of ruses that approach deception but are never actually lying. The elegance of their investigation is all about what they *do not* say rather than anything false that they venture.

     

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  4.  
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    thecaptain, Jan 11th, 2007 @ 10:38am

    Uh no.

    He argues, more broadly, that deception is a key part of all law enforcement, both public and private, and that pretexting is just a one form of deception

    Ummm..while it MAY be argued that deception is a key part of law enforcement, a PI hired by a CEO (or whatever...let's say a private party) is NOT considered LAW ENFORCEMENT. Furthermore, just because one can argue it is an accepted part of law enforcement, this doesn't make it right or legal for a private party to participate in the practice.

     

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  5.  
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    MDT, Jan 11th, 2007 @ 10:46am

    Pretexting Kerfluffle

    The issue, to me, is not outlawing pretexting per say, but rather that there are holes in the legal protections for certain personal data. To take a recent hot-button example, it has not historically been illegal to pretext for phone records, although certain state laws now forbid the practice and the FTC and Congress have recently put their Federal feet down on the subject. My attitude as a corporate investigator has always been that any information I obtain or work product I produce for a client needs to be handled in a legal and above board manner, with as little as possible potential for blowback. We seldom if ever used anything but the most gentle of pretexts at any of the investigative or research firms I've worked with and we certainly never used such techniques to access personal information such as phone or financial records. Legal and corporate clients can be very demanding, but telling clients "No" when it is in their best interest is just as important as doing great and reliable work on their behalf. This is like steroids in baseball - pretextual tactics can certainly pay off in the short term, but they don't make the player or the game any better. And sometime,s they bring a whole heap of unwanted attention and trouble. Thanks to Techdirt for linking over!

     

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  6.  
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    Anonymous Coward, Jan 11th, 2007 @ 10:54am

    So, anything the government can do, an individual has a right to do as well?

    Cool! I'm going to start taxing. My first tax will be on morons. Kevin D. Bousquet, I tax thee one million dollars! Pay up, or my private police force will use pretexting to drain your bank account.

     

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  7.  
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    Kevin, Jan 11th, 2007 @ 12:36pm

    Pretext Privacy & Private Investigators

    Thank you Joe for making mention of my artilce in your blog.

    I appreciate and respect all the comments both positive and/or negative.

     

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  8.  
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    Dosquatch, Jan 11th, 2007 @ 1:06pm

    He argues, more broadly, that deception is a key part of all law enforcement,

    The problem is that none of HP's board of directors, their attorneys, nor any private investigators they may have hired qualify as "law enforcement".

     

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  9.  
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    Corpa - Kevin, Jan 11th, 2007 @ 5:15pm

    Pretext Privacy & Private Investigators

    The main issue I am trying to push is that there are certain offences in crime fighting that are left exclusively in the hands of the Private Sector to combat.

    There are just some things Police don't do. They don't follow people on insurance fraud cases, they don't investigate the underground economy. They don't serve documents.

    So that means there is a percentage of crime out there that is investigated by the private sector and pretext can't be used.

    I am all for the police handling everything if it was possible. It's just an important method. I am just against no pretext at all. It should be regulated with exceptions.

    Just like my example of Dog The Bounty Hunter. He is a private sector company using what will be illegal pretext to catch his bad guys.

    I have to bug out of this blog now as I have a few others to respond to. You are welcome to post comments bad or good at the blog I won't delete them. I will delete name calling however.

    Thanks everyone...

     

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  10.  
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    Enrico Suarve, Jan 12th, 2007 @ 1:37am

    Rush job lawmaking

    I'm at least partly with Kevin - the idea that only a recognised law enforcement agency can use deception to gain information is great, as long as you are willing to defer all such situations to them, pay for the increased man power required and they are willing and able to take them up

    Otherwise there is a huge hole

    Yeah pretexting can be bad, but to outlaw it altogether due to one case and a lot of media attention is going a bit far - the speed this bill has been drawn up would hint towards reactionary lawmaking, "Its to protect the kids" type syndrome, and this never makes for the most well thought out laws

    Charms great if you have enough of it to get all the information required fast enough, but sometimes a barefaced lie is required to get to the truth quickly - a necessary evil.

    To compare, guns are quite often used to hurt people, commit crimes, used by law enforcement and the general public - yet every time someone mentions banning them as criminals make use of them there is an outcry. I'm not particularly fond of firearms but at least be consistent, pretexting is a tool which can hurt people criminally (not usually as badly as a bullet in the face) but can also be used against criminals

    I think this law would severely hamper a lot of crime detection that takes place outside the sphere of law enforcement and needs at least a major rethink, its needs to focus less on method and more on intent

     

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  11.  
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    Ben Dover, Jan 12th, 2007 @ 7:52am

    "I think this law would severely hamper a lot of crime detection that takes place outside the sphere of law enforcement and needs at least a major rethink, its needs to focus less on method and more on intent"

    Crime detection outside the sphere of law enforcement? You mean vigilante justice? Yeah, I think that's exactly what the proposed legislation is trying to prevent.

    The bottom line is, if it's illegal for you to steal something from someone, pretending you're an authority figure to demand it from them should be illegal too. Impersonating someone for the purposes of illegally obtaining confidential materials should absolutely be illegal. Do all forms of pretexting (ie, lying) fall into that? Probably not. But those that do should be illegal.

     

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  12.  
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    Enrico Suarve, Jan 12th, 2007 @ 8:04am

    Re:

    No - just because you're not a cop does not make you a vigilante, like the linked post states PIs and Bounty Hunters make use of this a lot, also an awful lot of very good media exposes are done using exactly this method

    I don't beleive this issue is at all as cut and dry as "cop good - others bad" (apart from the fact that the law from what I have been able to find does not make any distinction for officers of the law anyway)

    All I'm saying is it needs a lot more thought than taking one famous case where it was used for bad and saying "it's all bad then"

     

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  13.  
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    dsfsd, Jul 16th, 2011 @ 9:00am

    Pretexting

    This is what happens when you instill nosiness in the public, all this "surveillence" bull is helping people steal the intellectual property of the general public for the gain of the rich. Hmmm wonder how "voyeurism" got started... That is theft of your private person... Not to mention the pornography industry....

     

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