Prosecutors have finally come up with an indictment in the first “pretexting” case brought under a federal law President Bush signed on January 12,2007, the “Telephone Records and Privacy Protection Act of 2006” (“Telco Privacy Act” or “Act”). The law passed through Congress in 2006 in the wake of the Hewlett-Packard spying scandal.
The indictment, brought against Vaden Anderson, 28, alleged he used pretexting to obtain confidential phone records from Sprint/Nextel by serving the phone company with a fake U.S. District Court civil subpoena.
Pretexting generally involves obtaining telephone records from a telephone carrier under false pretenses such as by posing as a phone company customer, in order to request a report of last month’s calling records. It gained notoriety during the 2006 Hewlett-Packard (“HP”) scandal, when investigators hired by HP impersonated HP directors and others to obtain their phone records.
In an article in The National Law Journal, republished on Law.com, David Hricik, a law professor, former chair of the American Bar Association Section of Intellectual Property Law’s professional responsibility committee, and noted ethics expert, said the HP case prompted attorneys to re-examine how they deal with the investigators they hire, some of whom might want to use pretexting to obtain otherwise difficult to discover records.
Hricik, however, said the legality of pretexting is still a gray area. Using trickery to catch a discriminatory landlord, for example, may serve a social good, but using it to obtain private cell phone records could constitute a crime.
Telco Privacy Act penalties include fines and imprisonment for up to 10 years and also provide for enhanced penalties, increasing the fines and imprisonment by up to five years in certain enumerated circumstances.