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Crime HP The Almighty Buck The Courts Your Rights Online

Rich Pretexter, Poor Pretexter 121

Posted by kdawson
from the community-service dept.
theodp writes "David Kernell used pretexting to gain access to Sarah Palin's e-mail. And now Kernell faces the possibility of a 20-year prison sentence. HP used pretexting to gain access to its Board's phone records. And now HP faces the possibility of supplying phones to the very companies that were victimized in the HP pretexting scandal. So perhaps Kernell should try coughing up $14.5 million to see if that'll make his pretexting problems disappear. Seems to have worked for HP!"
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Rich Pretexter, Poor Pretexter

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  • Corporatocracy (Score:5, Informative)

    by michaelmalak (91262) <michael@michaelmalak.com> on Monday May 03, 2010 @08:01AM (#32071238) Homepage
    The word you're looking for is Corporatocracy [wikipedia.org].

    One important component you left out: the greater ability of corporations to influence government -- Disney, Halliburton, GlaxoSmithKline [commondreams.org], etc. Other, more "polite", keywords to Google: rent seeking [wikipedia.org] and Public Choice Theory [wikipedia.org].

  • by sed quid in infernos (1167989) on Monday May 03, 2010 @08:03AM (#32071260)

    If she pretexts to find out whether there's a leak on her board, she's now acting as a corporate officer, and thus the company is liable, not Carly, unless the prosecutor or plaintiff can convince a judge to pierce the corporate veil.

    This is just flat out wrong. There is no concept of "piercing the corporate" veil with respect to criminal prosecution. Veil-piercing is a product of civil law. Moreover, it is very common for corporate officers to face criminal prosecution for acts committed to further the corporate interest.

    To convict a person of a crime, one must generally prove an illegal act committed with the proper state of mind (called mens rea, and in financial crimes this generally means intent to commit the ac). In many corporate scenarios, the mental state does not exist in a single person - it is spread out across many people - and is therefore very hard to prove. In some cases, this spreading out of responsibility is such that no single person ever had the necessary mental state necessary to support a conviction. Corporate prosecution is a way to punish such acts without abrogating our general principle that we don't punish people who didn't commit a crime. It is in addition to prosecution of persons, not instead of, and thus means that more crimes can be punished under our corporate laws than could be if those laws did not exist.

    In sum, if a person commits a crime, the legal requirements for prosecution are the same whether committed to further a private or corporate interest.

    As a side matter, Fiorina was not at HP when the investigation happened. Link [usatoday.com]. More importantly, there was little or no evidence that the chair at the time new about the pretexting before it took place. They hired a private investigator who engaged in pretexting. Although this is legally enough to warrant civil liability, it is not sufficient to support criminal liability.

  • by Hyppy (74366) on Monday May 03, 2010 @08:06AM (#32071294)
    Google the legal doctrine of "respondeat superior". It will be enlightening.
  • Re:...f (Score:3, Informative)

    by Yvanhoe (564877) on Monday May 03, 2010 @08:19AM (#32071406) Journal
    That is because he erased incriminating files on his computer.
  • Re:Corporatocracy (Score:1, Informative)

    by Anonymous Coward on Monday May 03, 2010 @08:46AM (#32071662)
    Not in this case. Most of those edits are by registered Wikipedians, with interesting criticism on the talk page.
  • by Kral_Blbec (1201285) on Monday May 03, 2010 @08:50AM (#32071718)

    Pretexting
    Pretexting is the act of creating and using an invented scenario (the pretext) to engage a targeted victim in a manner that increases the chance the victim will divulge information or perform actions that would be unlikely in ordinary circumstances. It is more than a simple lie, as it most often involves some prior research or setup and the use of a priori information for impersonation (e.g., date of birth, Social Security Number, last bill amount) to establish legitimacy in the mind of the target.[3]
    This technique can be used to trick a business into disclosing customer information as well as by private investigators to obtain telephone records, utility records, banking records and other information directly from junior company service representatives. The information can then be used to establish even greater legitimacy under tougher questioning with a manager, e.g., to make account changes, get specific balances, etc. Pretexting has even been an observed law enforcement technique, under the auspices of which, a law officer may leverage the threat an alleged infraction to detain a suspect for questioning and close inspection of vehicle or premises.
    Pretexting can also be used to impersonate co-workers, police, bank, tax authorities, or insurance investigators — or any other individual who could have perceived authority or right-to-know in the mind of the targeted victim. The pretexter must simply prepare answers to questions that might be asked by the victim. In some cases all that is needed is a voice that sounds authoritative, an earnest tone, and an ability to think on one's feet.

  • by biryokumaru (822262) <biryokumaru@gmail.com> on Monday May 03, 2010 @09:32AM (#32072232)

    I'm not sure this is how pecking birds work but if it isn't there is probably a pecking bird geek in the crowd who will correct me.

    Well, as a matter of fact, they need to dip into water.

    Typically, older birds are filled with freon-11, or most modern ones with methylene chloride, in a liquid/vapor mix. They operate mainly by having the water soaking their heads evaporate. This changes the temperature of the refrigerant, causing it to change density (some turns from vapor to liquid) and alter the balance of the bird. Without a water supply to replenish the system, it would soon no longer be able to "peck" at the submit key.

    It's basically a heat engine, and you've removed the temperature differential.

  • by lancefox2323 (1543827) on Monday May 03, 2010 @09:44AM (#32072418)
    You have your facts wrong. HP knew what the PIs were going to do and authorized them to do it anyway. A senior member of HP's general counsel, and, in fact, their director of ethics, was told of what the PIs planned, did "about an hour's worth of online research" on the legality of pretexting, and signed off on the plan. http://schakowsky.house.gov/index.php?option=com_content&task=view&id=444&Itemid=17 [house.gov]
  • by MarbleMunkey (1495379) on Monday May 03, 2010 @09:50AM (#32072506)
    You managed to avoid the truly major difference in this case; The 20 year sentence is for felony obstruction of justice. The actual hacking of the e-mail account was only filed as a misdemeanor, and has a maximum sentence of 1 year.
  • by twmcneil (942300) on Monday May 03, 2010 @11:30AM (#32073800)
    This kid is the son of a Tennessee State Representative . I don't think he could be classified as "poor". Sounds like his daddy has simply left him to suffer the consequences of his actions alone and on his own. I suppose in some way you could call that good parenting. My cynical nature requires that I admonish his father with "Mike, you shoulda just called a few favors and sprung the kid."

    Can you imagine what would happen if every lame-ass action originating at 4chan resulted in 20 years?
  • by Khashishi (775369) on Monday May 03, 2010 @03:29PM (#32076606) Journal

    The settlement only covers the civil lawsuit.

    HP and the investigators hired who did the actual pretexting still face criminal charges.

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