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The Hewlett-Packard Mobius StripThinking through the press' role in the weird "pretexting" scandal.

By Jack Shafer
Posted Wednesday, Sept. 13, 2006, at 6:59 PM ET

California Attorney General Bill Lockyer has surrounded the corporate offices of Hewlett-Packard with his legal SWAT team, all but hollering on his bullhorn for the company's guilty executives to come out with their hands up and surrender over the "pretexting" scandal.

If you haven't been following the story, the HP brass hired investigators to smoke out blabbermouths on the board of directors who were leaking confidential company information to the press. The investigators—allegedly—went after suspected leakers by falsely identifying themselves to the telephone company to obtain their phone records. They appear to have done the same thing to capture the phone records of nine reporters, too.

Very naughty and potentially criminal, but what hard-charging journalist has never misrepresented himself while sleuthing a big story?

I'm not positing a moral equivalence between cagey reporters and investigators who nab your phone records by pretending to be you. But many of the pretenses reporters adopt come very close to the deceptions said to be perpetrated by HP's hired guns.

Some journalists are candid about the poses they've adopted to get the story. In his autobiography, This Just In: What I Couldn't Tell You on TV, CBS veteran Bob Schieffer writes about his days as a young Fort Worth Star-Telegram police reporter and how he became an honorary detective while covering the beat. He writes:

After I had been on the beat for a while, the detectives let me ride with them to the scenes of crimes that had the promise of making a good story. … Even the uniformed police on the scene would sometimes assume I was a detective. Who could have known? An unmarked car arrives at the scene of a crime, and three men wearing snap-brim hats emerge from the car instead of two. The detectives might identify themselves; I remained silent and took notes.

Schieffer proceeds to tell of the time he beat homicide detectives to a murder scene. He follows a patrolman into the room where the killing took place as smoothly as a running back drafting the wake of a pulling guard. Schieffer tells a man in a white coat who mistakes him for a detective to "lock the door and don't let anyone in until the official photographer arrives," which the man apparently does. Schieffer scampers to the back room to witness up close the bloody evidence of a murder-suicide. Upon arriving, the real homicide detective is blocked at the door and can't pass until Schieffer gives permission.

It sounds like a story from journalism's pre-ethical days, but how much has changed in the four-plus decades since Schieffer was a cub? I know few reporters who would whip out their press passes should a similarly fortuitous case of mistaken identity befall them. I know of no reporter who doesn't ingratiate himself with sources and subjects in hopes that he will become so familiar that they treat him like the ignored fly on the wall.

Far from being antiquated, brazen misrepresentation of identity lives on in broadcast journalism. Undercover reporters at networks and local stations routinely mask themselves as consumers or bystanders to investigate charges of wrongdoing with their hidden cameras. The networks and stations don't wring their hands over the ethics and morality of this undercover work. Instead, they and their lawyers have institutionalized the approval processes for undercover projects, making sure to cover their asses before they sign off and let the cameras start taping.

Schieffer appears to have come very close to deliberately impersonating a police officer, which is a crime. But what crime did HP's investigators allegedly commit? As the New York Times reported last week, it's illegal under federal law to obtain customer records fraudulently over the Internet but added that "the protection of phone records falls into a legal gray area." The area is so gray that some companies have advertised the phone-records services on the Web. Marc Rotenberg, executive director of the Electronic Privacy Information Center, told the newspaper that using the fraud laws to prosecute might not go very far: "Unlike other kinds of fraud, it's not clear monetary damage."

I intend no premature defense of the HP's investigators when I write that duplicity is the most human of all impulses—we're all squids packing ink. People naturally deflect direct requests for personal or sensitive information. For example, say you suspect your spouse of cheating. You know better than to ask outright. Instead, you navigate the boundaries of the subject to gather additional morsels of deceit before demanding a confession. Or say you're a political reporter with a hunch about the mayor's campaign-finance report. You, too, ask soft questions before asking the tough ones, reaching inside the mayor's unsuspecting guard with your false pretenses. As the attorney general and the press unpack the Hewlett-Packard story, will they discover grossly criminal behavior on the part of HP's investigators, or an unprosecutable embarrassment?

Despite the saturation coverage given the story by the press, one paradoxical aspect of the story goes unreported, and it goes unreported because it's about the reporters.

If the Hewlett-Packard brass are right, and a board member did violate his oath of confidentiality by leaking sensitive material to the press, then the mystery of the leaker's (or leakers') identity is no mystery at all. The reporter who received the leak knows the leaker's name. But the reporter can't reveal this vital part of the story because in accepting the leak, he granted his source on the board confidentiality—yes, confidentiality to violate his oaths of confidentiality to the company.

It's the Valerie Plame case all over again.

Stepping off this Mobius strip, you notice that the press seems a thousands times more interested in the investigators who deceitfully obtained confidential phone records than they are about a board member who violated his confidential oath to feed the press.

Who does the press think it's deceiving this time?

******

I believe I've gotten to the bottom of Schieffer's identity crisis. On Page 21 of his book, discussing his early career, he writes, "The only thing I didn't like about KXOL was the wife of station manager Earle Fletcher. It wasn't that I didn't like her personally, but she couldn't pronounce Schieffer. So Fletcher decreed that I should be called Shafer. Go figure. At school, I was Schieffer. At work I was Shafer. Schieffer or Shafer, the two years until graduation passed quickly." Imagine this happening to you in an e-mail to . (E-mail may be quoted by name unless the writer stipulates otherwise. Permanent disclosure: Slate is owned by the Washington Post Co.)

Shafer's hand-built RSS feed.

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Remarks from the Fray:

While governments and corporations invariable leak left and right, once a bit of information is leaked to the press, the leaker's name is safely tucked away within the bowels of the MSM.

Reporters never report on another reporter's snitch. A leaker's name is safer with the reporter he provided information than with the lawyer the leaker hires to represent him. A judge can order the lawyer to revel his client's name, while a reporter is willing to go to jail as a badge of honor. The lawyer would lose his ability to work if the courts decided against him, while the reporter becomes a hero, lionized by his fellow reporters.

The reporter's fellow reporters will not report the leaker's name in some sort of journalistic conspiracy, even if the leaker's name is the most newsworthy aspect of the story. The publishers and editors of the all news organizations join in this conspiracy.

They wrap themselves in the Constitution, claiming their First Amendment rights. They claim they are fighting for us. They claim they are protecting the cause of whistle blowers. While most stories I read appear less whistle blowing than self-serving, opponent attacking, hidden agenda by the leaker.

You're right Jack; this story will be more about "pretexting" to obtain phone records than who leaked what information to reporters.

--scout29c

(To reply, click here.)

HP is not a mobius strip if you believe that journalists work in the public interest. Then you would say "HP's board leaked. Good for us, now we citizens and investors know more about this $100B entity that employs 100,000 people." Remember that no one disputes the truth of what was leaked by the HP director, so that information can be considered a public good.

And if the leak angered HP's board, we'd say "OK, I understand that you're angry, but please obey the law as you work to advance your (private) corporate agenda." In that scenario, there's no problem with the reporters withholding their sources, and there's no risk of privacy violations by HP. HP's recourse is against the leaker, not the leakee, and they must follow law and good public policy in identifying the leaker.

That's easy to distinguish from the Valerie Plame situation. There the leaks were not disclosures of the truth of something, they were disclosures of a protected piece of intelligence information (itself a violation of law and public policy), specifically to advance a smear campaign (which is not supported by law and public policy). By the definition of the Identities Act, the disclosed information was not a public benefit (the Act sees disclosure as criminal harm), and so therefore the reporter is not protected.

--certainly

(To reply, click here.)

There is a vast difference between saying nothing and letting others assume you are a detective (there is no law against being a civilian at a crime scene, just police POLICY - which is very different), and actively calling the phone company pretending to be an individual that you are not.

There is even a difference between pretending to be a cop and pretending to be the particular individual in question. After all, the Phone Co should itself be bound by its contract with the individual, to not divulge information to the police absent a warrant.

No, there is no equivalency here between what the constitutionally protected press does in ferreting out stories, and what a powerful corporation does when it decides to Ratfuck an employee.

--Degsme

(To reply, click here.)

(9/16)

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