Wednesday, September 13, 2006

Pretexting, Subterfuge, and the Private Eye

-by Sean Chercover

You’ve probably read about the huge pretexting scandal that cost HP chairwoman Patricia Dunn her job yesterday. In a nutshell, Dunn was upset that a member of HP’s board had leaked to the press. She hired private investigators to find the source of the leak. The private eyes obtained the personal phone records of HP board members by calling the phone companies and impersonating the board members, pretending to be requesting their own records. They also impersonated various journalists in order to obtain their phone records.

Which is illegal.

When I was a P.I. back in the early 90s, I never heard the term “pretexting.” Back then, we liked to call things by their proper names, and we called it “lying.” When we wanted to sound fancy for our clients, we called it “subterfuge.” Or we talked of “employing a cover story.” And we understood that certain kinds of cover stories were off-limits.

Pretending to be the subject of the investigation was a gray area back then, but with the identity-theft laws that have since been passed, the law is now clear. In most states, a P.I. cannot legally pretend to be the subject of the investigation in order to obtain the subject’s personal information.

It is also illegal for a P.I. to impersonate a government official, or an official of an existing company. It is not, however, illegal to lie. So while I could not impersonate a cop when looking for information, I could, for example, pretend to be an employee of XYZ Insurance Company, as long as no such company exists.

But a recent California Senate bill (SB1666) proposed to erase such distinctions. SB1666 applied to both private investigators and to police, and it made no distinction between pretexting and subterfuge. In other words, it proposed to make lying illegal. Apparently, lawmakers in California decided that the First Amendment right to free speech does not include the right to lie, despite the fact that the Supreme Court has repeatedly ruled otherwise.

Interestingly, when the Illinois legislature passed a strong identity-theft law this summer, they reiterated the exception for private investigators, who may still employ subterfuge, “but may not portray him or herself as the individual whose personal identifying information he or she seeks.”

The California bill floundered and was withdrawn, (much to the relief of cops and P.I.s throughout the state) but lawmakers vowed to bring it back in the state legislature’s next session.

The thing is, by the time we reach the second grade, we’ve already been conned out of a peanut butter sandwich or two. Surely we don’t make it to adulthood without realizing that people sometimes lie. There are plenty of laws that prohibit such things as fraud and identity-theft, as there should be.

But how far do we want to take this? It seems to me that, in addition to being unconstitutional, any law that uses a broad brush to prohibit lying is unenforceable. Furthermore, such a law seems like an attempt to protect us from the responsibilities of adulthood.

Or am I mistaken?


ab said...

It seems to me you cannot pass a law against lying, without passing a law on what truth is.

Bryon Quertermous said...

I think stories like this go a long way to pointing to a continued future for the PI novel. Sure, in itself this may not be the makings of a fine crime novel, but I imagine if you get into the story of all the players involved there's a hole series worth of intruiging stories.

jay Yardley said...

If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State

Joseph Goebbels

kris vezner said...
This comment has been removed by a blog administrator.
kris vezner said...

Of course some types of lying have been crimes for a long time. Perjury has been a crime for centuries and I think we all pretty much accept that that's OK. Obstruction of justice by lying is a crime, just ask "Scooter" Libby. Making a wide variety of lies to regulatory agencies like the SEC or EPA is a crime, for example where that lie conceals something that would concern that agency. Falsely representing yourself as an employee of certain government agencies or even just falsely using the seal of certain government agencies is also a crime.

To be federal crimes, those lies generally must be "material" lies. This for example means that the lie injures a specific public interest, one that the legislature has tailored that criminal law to protect. Perhaps then the question should be, does lying to obtain someone's personal information injure a public interest such that that lie should be a crime?

Well the right to privacy is a public interest. Perhaps the law should respond to violations of your right to privacy by making it a crime to violate that right. Personally, I feel more secure knowing that the law protects my right to privacy from intentional invasion.

I'm sorry for all the private investigators out there who would have to get my personal information another way, but an identity thief could get your information that way too. Perhaps we should just plug that hole. And what a great way to nail an identity thief especially if the financial loss is small, just charge him with the lie he used to get your information in the first place. Charging the lie can have advantages over charging the underlying substantive crime, note charging decisions in the George Ryan, Martha Stewart and "Scooter" Libby cases.

I took a quick read through SB 1666. It doesn't prohibit general lying. It prohibits obtaining certain personal information "by fraudulent, deceptive or false means." So it protects a specific public interest, namely your and my right to privacy. I'd have to take someone's word for it that it affects cops doing their job, I note that SB 1666 has a broad exemption for basically any law enforcement official obtaining personal information "in connection with the performance of the official duties" of her law enforcement agency. Trucks could pass each other driving through that exemption.

Don't get me wrong, I work in law enforcement myself and the more tools you have to protect the public the better. But of course in law enforcement you have a broad suite of existing tools like grand jury subpeonas that get the job done all above-board like. Do you really need "lying to get personal information that you could have gotten through judicial process" as a tool? I say no, emphatically no.

Imagine the defense lawyer's cross-examination of you the obtaining officer. How will that reflect on the veracity of your other testimony? How will that make the jury feel about your case as a whole? Imagine the defense's closing argument, today's theme is lying and taking shortcuts.

I'm not sure how a law criminalizing a lie protects us from the responsibilities of adulthood. Prosecuting a criminal lie IMPOSES the responsibilities of adulthood on people who feel comfortable ignoring those responsibilities. And in a white collar case, when someone commits a criminal lie he is often lying to hide that he's avoiding additional adult responsibilities. Maybe he's not paying his full share of taxes. Maybe his company is putting more pollution than it should into the air you breathe, or the water you drink. Or maybe he's an identity thief, planning to steal from others and leave you on the hook.