On October 3, 2006, Stanford Law School hosted a case study session on Hewlett-Packard Company (HP)’s troubles relating to pretexting.
A pretexter obtains data on another person that he/she is not entitled to. It is an abuse of data because the pretexter fakes the identity of another in order to obtain personal information.
Is pretexting a crime? There are several criminal statutes that may apply. Under California Penal Code Section 502, there is argument for computer hacking. Under California Penal Code Section 530.5, there is argument for identity theft. However, these statutes do not completely fit the situation. For instance, for identity theft, the pretexter has not used the identity of another to engage in theft. There may be no direct material financial harm to the person whose identity has been faked, though there is argument that privacy has value.
In terms of ethics, the HP investigations were not motivated by personal greed or financial interest, but the best interests of the company. Psychologists on moral behavior have stated that when individuals are confronted by unethical acts, they often feel compelled to respond in kind.
In hindsight, one may innovate alternatives to how the HP investigations were handled. The HP investigators may be guilty of wire fraud, but the investigation was prompted by board members leaking board discussions to the media. Can it be fraud if the persons being investigated breached a duty of trust? Board members have fiduciary duties such as candor and care. Discussions in the board room should be confidential in order for there to be candid discussions. How frequent were the leaks and what were the board dynamics during the leaks? The board could have threatened to sue itself for the leaks. The subpoena power would have allowed the board to get all the information obtained from the pretexting legally. The director who was leaking to the media may have stopped. The board could have asked each member to give consents to the turning over of records or to agree not to speak to the press.
In HP’s case, there appears to be a lack of attention at several steps in the investigation process. The investigation was outsourced, and people relied on others for advice and follow up rather than conduct their own investigations and then seeing if procedures were in accordance with HP standards and codes of conduct.
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