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<b>Online Exclusive:</b> Congress to Address Pretexting
In the last week before recessing for the campaign season, Congress will be busy with the privacy scandal du jour: pretexting.
The House Energy and Commerce Committee is scheduled to hold a hearing on Thursday, Sept. 28, at which executives from Hewlett-Packard ('HP') and its law firm, Wilson Sonsini Goodrich & Rosati, will explain their roles in the alleged decision to spy on HP Board members and independent journalists. HP has said that the spying began as a way to determine who on the board of directors was leaking confidential information ' information that potentially violated Sarbanes-Oxley corporate governance laws. 'What began as an investigation with the best intentions has ended up turning in a direction we could not have possibly anticipated,' said CEO Mark Hurd in a recent news conference.
Meanwhile, members of the Senate Commerce Committee and the Senate Judiciary Committee were preparing bills to ban pretexting that will likely be introduced the week of Sept. 24. The bills would not only ban the practice of pretending to be someone else in order to obtain phone records, but they would increase criminal and civil penalties for violators, according to people who have seen drafts.
The pretexting issue may have pushed legislation about the National Security Agency's warrantless searches until after the recess. Although the House and Senate have each made progress on various surveillance bills, it seems unlikely that the differences within each body can be worked out quickly ' not to mention getting bills actually passed and ready for a House-Senate conference.
In the Senate, three bills were reported out of the Judiciary Committee last week: S. 2453, sponsored by Committee Chairman Arlen Specter (R-PA); S. 3001, sponsored by Dianne Feinstein (D-CA); and S. 2455, sponsored by Mike DeWine (R-OH). The bills differ substantially on how much oversight the court created by the Foreign Intelligence Surveillance Act ('FISA') would have. Specter's bill, supported by President Bush, would expand presidential authority to decide when warrantless searches are appropriate. Feinstein's bill 'would reaffirm that FISA is the exclusive mechanism for conducting domestic intelligence surveillance, while making certain modifications in the Act,' according to a statement by the Center for Democracy and Technology, a privacy advocacy group.
Indicative of the concern over Specter's bill, despite the majority backing of it, is a comment by Sen. Patrick Leahy (D-VT) in the committee report: 'The [Specter] bill makes compliance with FISA entirely optional, and explicitly validates the President's claim that he has unfettered authority to wiretap Americans in the name of national security.'
However, on Sept. 25, Sens. Larry Craig (R-ID), John Sununu (R-NH), and Lisa Murkowski (R-AK) said that they were satisfied with new modifications to Specter's bill and would support it ' thus bringing it close to the threshold needed to pass. 'We believe that the changes we have secured will not only uphold these vital individual rights, but will also ensure that Congress retains its authority to regulate and provide oversight throughout the surveillance process,' the senators wrote in a statement. The changes include: deletion of language that some opponents of S. 2453 said gave the president too much authority on surveillance decisions; clarification of the FISA court's authority to review and approve electronic surveillance programs in their entirety and to ensure that an individual's Fourth Amendment rights are not violated; and language ensuring that warrantless electronic surveillance of an agent of a foreign power does not include U.S. persons.
On the House side, two committees, Judiciary and Intelligence, each passed HR 5825 during the week of Sept. 17. The two committees passed the bill with slight differences that are described as 'inconsequential' by one observer, and both bills would basically change the FISA law so that the president would have the authority to decide when to seek court approval prior to domestic surveillance.
In the last week before recessing for the campaign season, Congress will be busy with the privacy scandal du jour: pretexting.
The House Energy and Commerce Committee is scheduled to hold a hearing on Thursday, Sept. 28, at which executives from
Meanwhile, members of the Senate Commerce Committee and the Senate Judiciary Committee were preparing bills to ban pretexting that will likely be introduced the week of Sept. 24. The bills would not only ban the practice of pretending to be someone else in order to obtain phone records, but they would increase criminal and civil penalties for violators, according to people who have seen drafts.
The pretexting issue may have pushed legislation about the National Security Agency's warrantless searches until after the recess. Although the House and Senate have each made progress on various surveillance bills, it seems unlikely that the differences within each body can be worked out quickly ' not to mention getting bills actually passed and ready for a House-Senate conference.
In the Senate, three bills were reported out of the Judiciary Committee last week: S. 2453, sponsored by Committee Chairman Arlen Specter (R-PA); S. 3001, sponsored by Dianne Feinstein (D-CA); and S. 2455, sponsored by Mike DeWine (R-OH). The bills differ substantially on how much oversight the court created by the Foreign Intelligence Surveillance Act ('FISA') would have. Specter's bill, supported by President Bush, would expand presidential authority to decide when warrantless searches are appropriate. Feinstein's bill 'would reaffirm that FISA is the exclusive mechanism for conducting domestic intelligence surveillance, while making certain modifications in the Act,' according to a statement by the Center for Democracy and Technology, a privacy advocacy group.
Indicative of the concern over Specter's bill, despite the majority backing of it, is a comment by Sen. Patrick Leahy (D-VT) in the committee report: 'The [Specter] bill makes compliance with FISA entirely optional, and explicitly validates the President's claim that he has unfettered authority to wiretap Americans in the name of national security.'
However, on Sept. 25, Sens. Larry Craig (R-ID), John Sununu (R-NH), and Lisa Murkowski (R-AK) said that they were satisfied with new modifications to Specter's bill and would support it ' thus bringing it close to the threshold needed to pass. 'We believe that the changes we have secured will not only uphold these vital individual rights, but will also ensure that Congress retains its authority to regulate and provide oversight throughout the surveillance process,' the senators wrote in a statement. The changes include: deletion of language that some opponents of S. 2453 said gave the president too much authority on surveillance decisions; clarification of the FISA court's authority to review and approve electronic surveillance programs in their entirety and to ensure that an individual's Fourth Amendment rights are not violated; and language ensuring that warrantless electronic surveillance of an agent of a foreign power does not include U.S. persons.
On the House side, two committees, Judiciary and Intelligence, each passed HR 5825 during the week of Sept. 17. The two committees passed the bill with slight differences that are described as 'inconsequential' by one observer, and both bills would basically change the FISA law so that the president would have the authority to decide when to seek court approval prior to domestic surveillance.
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