Barton Backs Pretexting Bill, Scolds Witnesses

“I've never had a hearing where no witnesses had an opening statement and everyone took the 5th,” Barton said, after a panel of witnesses was dismissed upon declining to answer queries by House Oversight Subcommittee Chmn. Whitfield (R-Ky.). Ranking Member DeGette (D-Colo.) joined Barton in decrying witnesses’ silence. “This is a waste of committee time and resources,” Barton said, adding that the committee was told only 2 witnesses would be mum. The committee will work with law enforcement agencies and other channels to “inform the public” about its findings on the HP scandal.

HP executives who did testify said they hadn’t known the scope of investigative tactics used to pursue the leaker of sensitive H-P board information. “Checking phone records was standard practice at HP and was drawn from public records,” Patricia Dunn, former HP chmn., told the committee. Several members questioned Dunn about how she could think private phone records would be publicly available.

“If I wanted your phone records, would you give me that?” Barton asked Dunn. She said: “In your position, I would give them to you.” Barton replied: “Well, praise the Lord. I wouldn’t give you mine.” Perusing others’ phone records isn’t legal, and that’s the problem with pretexting, Barton said. Pretexting ignores the difference between “right and wrong,” he said.

Barton said he asked House leaders “early this week that the bill [HR-4943] be put on the floor as soon as possible.” The Commerce Committee unanimously passed the measure in May;

it went on the House calendar but was pulled, Ranking Member Dingell (D-Mich.) said: “It has not been seen or heard from since. Who did it, and why?” Dingell criticized the Bush Administration for blocking the bill, saying he wrote to the Dept. of Homeland Security and law enforcement agencies asking how the law could be changed to address their concerns.

“I have been informed that the response is being held up by the Office of Management and Budget,” Dingell said: “Why can’t I get answers?” Hearings are important, Dingell said, but they're a “poor substitute if the committee’s bill remains in legislative limbo.” Rep. Inslee (D-Wash.) also called for congressional action: “I hope we deliver a message to the leadership of the House of Representatives to pass this bill on the suspension calendar and not wait until the lame duck session.”

HP Culpability

Some HP officials raised concerns about the leak hunt’s legality, documents released by the Commerce Committee showed. “I shouldn’t have asked,” said an e-mail written by HP Senior Counsel Kevin Hunsaker on Jan. 30 to H-P Global Security Mgr. Anthony Gentilucci. In an e-mail to Hunsaker, Gentilucci had described getting phone records through “social engineering.” He said he thought the program was “on the edge, but above board” because the company had used it in investigations into theft of company property.

“I have serious reservations about what we're doing,” HP co-investigator Vincent Nye wrote Gentilucci in an e-mail Feb. 7. Getting phone records is “very unethical at the least and probably illegal,” the message said. He urged the company to end the program and not use its findings.

But Dunn told the committee she wasn’t aware until mid- 2006 that HP was doing anything illegal, nor had she heard of the word “pretexting.” Dunn said she started the inquiry into the leak but didn’t hire the investigators. “I turned to resources HP normally used to do this type of work,” she said, adding that she was told material being collected was taken from public sources. “I was fully convinced that HP would never engage in anything illegal,” Dunn said, saying she believed privacy concerns had to be balanced against the need to get to the bottom of leaks of confidential information. Dunn, who accepted no blame for the inquiry, urged Congress to pass privacy legislation so companies like H-P have clear legal guidance. Dunn resigned from the board under pressure, as H-P Gen. Counsel Ann Baskin did Thurs. morning.

H-P CEO Mark Hurd told the committee leaks weren’t a CEO priority, despite Dunn’s focus on the investigation. He told Congress he’s never seen “anything like this,” meaning the board-sponsored pretexting scandal. Hurd takes responsibility for not “catching” this problem, he said. He blamed it on a failure of checks and balances, and said he plans to “get to the bottom of this.” -- Anne Veigle .HEADLINE Ramsay Says Preemption Compromise Possible, After Lame Duck Session of Congress Ends

NARUC Gen. Counsel Brad Ramsay said he sees little chance of compromise with wireless carriers on state wireless preemption while the Senate version of broad telecom reform containing preemption language is still alive. Ramsay predicted CTIA may be willing to discuss a compromise with NARUC, but not until after a likely lame duck session of the Congress ends.

Ramsay squared off Thurs. against CTIA Regulatory Affairs Vp Chris McCabe during an FCBA lunch on wireless preemption. “Strategically and tactically these guys are not going to abandon the high ground and they think they've got it,” Ramsay said of carriers: “We were very much engaged on this issue before they got the language in the bill.” Some NARUC members remain upset at CTIA based on the preemption fight, Ramsay said: “Whether it was a result of miscommunications, or deliberate acts, however it happened, some of my members were not happy with the way that got into the bill.”

McCabe said CTIA will continue to work with the states. “It’s not personal,” he said: “We didn’t put this through surreptitiously in the dark of night. This was something we worked 6 months to get into the bill.” McCabe added that wireless carriers have a good track record. “We have 219.5 million customers and growing,” he said. “I would say that the industry is doing a good job. There are complaints… I do not believe that the states or any of the other regulatory bodies will do a better job of addressing concerns than the industry will itself.”

NARUC and CTIA have been battling since June, when language appeared in the Senate telecom bill that would largely end state regulation of wireless carriers, now governed by the 1993 Omnibus Budget Reconciliation Act. That act gave FCC power over rates and entry for wireless, but left states the authority to oversee terms and conditions of contracts (CD June 20 p1).

On the likelihood of legislation, Ramsay conceded Commerce Committee Chmn. Stevens (R-Alaska) could still defy odds and get a bill through the Senate this year. “The big unknown factor is we're dealing with Sen. Stevens,” he said, noting Stevens’ notorious fondness for the Incredible Hulk: “It’s always a mistake to underestimate him when he’s wearing that Hulk tie. NARUC for the next month is going to be going to preparing for telecom Jihad. If he comes into the office wearing that tie, yeah, there'll be a fight.”

Ramsay said, with the caveat of the Stevens “wildcard,” he doubts supporters of the telecom bill would be able to win a cloture vote in the Senate. “Personally, when I sit down and count… I can’t get anywhere near 60,” he said. “The prevailing sound from Capitol Hill is that he [Stevens] has got 55 votes. I can’t even get to 55 votes.”

McCabe refused to handicap chances for the legislation. “The reality is we will continue to work with Chmn. Stevens and hope for its passage,” he said. CTIA outreach to the states continues despite the fight with NARUC over preemption language. “The relationships will obviously continue,” he said. “Just try to track the travel schedule of Dane Snowden, who handles our state issues and the volume of trips he’s made in the last 6 months.”

“I think having the wireless preemption doesn’t help to move the telecommunications bill forward,” said Debra Berlyn, lobbying for AARP, who has been active in the fight against the preemption language.