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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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  • In the HP case, I don't think they publicized or gave away that information to potentially harmful persons. Palin could legitimately fear identity theft while the HP case that was more invasive seemed to have a very small group of people accessing the private information. Basically, was there potential identity theft in either case? Kernell's jury was hung on that, if I remember. The other thing is that the HP employees didn't seem to want to press charges (aside from one, if I recall correctly). So the pretexting victims need to step up and remember, the telephone companies weren't the biggest victims, it was the actual phone account holders that had their records accessed via pretexting. I'm no legal expert on the issue but I think if the people whose records had been accessed stepped up to sue then the result would have been different. I imagine Palin will exercise all options in prosecuting Kernell and since she's not in anyway trying to salvage a relationship with Kernell he'll get the book thrown at him whether he's sorry or not.

    Also, I read about this in ValleyWag [gawker.com] and didn't see it linked to in the summary. Not sure if theodp works there or if it was just coincidence but if this comparison was gleaned from there, some small credit should be given.
  • by alen (225700) on Monday May 03, 2010 @08:33AM (#32071056)

    there will never be proof that HP or it's officers told someone to break the law. they told the PI's to get the info and it was up to them how to do it

  • No surprise really (Score:5, Insightful)

    by dkleinsc (563838) on Monday May 03, 2010 @08:37AM (#32071074) Homepage

    Under American law, corporations have almost all privileges of citizenship without most of the responsibilities of citizenship. And people acting on behalf of a corporation have lots of legal protections that us regular schlemiels lack. They benefit extensively from the protection of the US military (both in and outside of US territory), and of course have ready access to all the more local services such as police, the fire department, municipal water supply, and so on. Thanks to the current Supreme Court, they also have full rights of political speech.

    However, about the only responsibility of citizenship that they have to any degree whatsoever is that they are required to pay taxes, and many of them manage to dodge even doing that. Interestingly, if the interests of their shareholders conflict with the interests of the US, they are legally supposed to go with the shareholder's interest. So, for instance, if it is profitable to find a legal loophole that allows some subsidiary to sell uranium to Iran, a corporation capable of doing so is generally obligated to do just that.

    The craziness of this: if Carly Fiorina pretexts to find out whether her husband is cheating on her, she's likely to be in a similar boat to David Kernell. 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. Same person, same act, but in the second version there's an extra layer of legal protection.

  • by Anonymous Coward on Monday May 03, 2010 @08:44AM (#32071122)

    Pretexting is just a made up word to make it look like they did something clever.

  • by Anonymous Coward on Monday May 03, 2010 @08:51AM (#32071164)

    Ok, but in the Palin case, the former governor was using this email address to skirt public disclosure requirements. Palin is trying to play the victim here. She is the worst type of politician, and if our system was fair (which is impossible due to people like Palin), then she would be prosecuted as well.

    As far as I'm concerned, Kernell did the public a service in helping to expose a corrupt politician.

  • by elrous0 (869638) * on Monday May 03, 2010 @09:11AM (#32071324)
    We used to call these "criminal impostors" back in the day. If a thief, masquerading to be a cop, pulled you over and then stole your wallet, would you call it "pretexting"?
  • by DaveV1.0 (203135) on Monday May 03, 2010 @09:31AM (#32071504) Journal

    Kernell does not face 2o years for pretexting. Kernell faces 1 year for unauthorized computer access and 20 years for felony obstruction of justice. To the best of my knowledge Kernell has not been sued by anyone over his unauthorized access.

    HP settled a civil suit brought by Verizon for US$ 14 million. HP and the investigators hired who did the actual pretexting still face criminal charges. Those charge may result in jail time. There is little chance of a 20 year sentence as there is no felony obstruction charge in the HP case. Each count of unauthorized access carries a penalty which can run either concurrent or consecutive.

    Verizon currently sells an HP netbook. HP may buy Palm, but there is no guarantee that Verizon will continue to carry Palm/HP phones. But, that US$ 14 million settlement may result in Verizon continuing to carry HP devices, especially if said devices are popular.

  • by countertrolling (1585477) on Monday May 03, 2010 @09:32AM (#32071516) Journal

    Hey! I'd sacrifice my reputation for 12 million dollars given have a chance..

  • by countertrolling (1585477) on Monday May 03, 2010 @09:35AM (#32071548) Journal

    ...Kernell did the public a service in helping to expose a corrupt politician.

    We don't write law to serve the public.. In fact, some are written to protect the corrupt politician.. seeing as that we let corrupt politicians write the law

  • imagine (Score:3, Insightful)

    by Voline (207517) on Monday May 03, 2010 @09:57AM (#32071796)

    what would have happened to you if you'd gone around distributing thousands of CDs to people that, when placed in a computer, installed a rootkit?

    Now, what happened to Sony?

  • Re:...f (Score:3, Insightful)

    by cthulu_mt (1124113) on Monday May 03, 2010 @09:57AM (#32071808)
    And now you understand how the system works. Give yourself a pat on the back and get back to the salt mines.
  • Um... no. (Score:5, Insightful)

    by jwietelmann (1220240) on Monday May 03, 2010 @10:04AM (#32071892)
    You might be able to make the civil disobedience argument if he had, say, broken into the email account, downloaded everything, and sent it to a site like Wikileaks. Instead, he put the password on 4chan, and in the process he didn't really expose anything and delegitimized anything that might have been found.

    Painting this kid as some sort of noble hacker/whistleblower is pure fantasy.

    (At the same time, I do feel empathy for him, as we all know what law enforcement would do if someone broke into one of our personal webmail accounts: Absolutely nothing.)
  • by Anonymous Coward on Monday May 03, 2010 @10:07AM (#32071928)
    That isn't how the legal system works. The court doesn't say "you've done X damage, pay for it with money or time". Would you propose we go back to debtors prisons?

    If Bill Gates stabs someone and a jury convicts him of murder, could he "buy off" his life sentence?

    Your understanding of justice in the US (and the rest of the world as far as I know) is fundamentally wrong.
  • Re:Um... no. (Score:5, Insightful)

    by mea37 (1201159) on Monday May 03, 2010 @10:34AM (#32072262)

    I'm not saying you are or aren't in the group I'm about to argue with, because it's a bit unclear from your comment; but...

    I've noticed that a lot of people throw around the "civil disobedience argument" as though they think it should be a legal defense. It isn't. It was never intended to be. The very concept of civil disobedience is that you accept the consequences of your actions, even if they be unfair consequences imposed by a corrupt regime. That's the nature of the play. If you don't like that part of it, then civil disobedience may not be for you.

    So, yeah... he might have gotten a more sympathetic judge and/or jury if he'd done as you suggest, but he still would've gotten a criminal record and some sort of sentence out of the deal. Bottom line is having the best of intentions still doesn't make it ok to go outside the system. What crimes Palin did or didn't commit would be a separate matter, but don't expect evidence revealed in this manner to be what brings her down.

  • Re:...f (Score:3, Insightful)

    by DaveV1.0 (203135) on Monday May 03, 2010 @10:49AM (#32072490) Journal

    Obstruction occurs AFTER the initial crime and takes place during the investigation. It can be as simple as lying about the whereabouts of a person (I know someone arrested on misdemeanor obstruction for just this reason). Wearing a mask during the original crime doesn't count as obstruction because it does not occur during the investigation, but it could fall under other laws banning the wearing of masks in public.

    Kernell is charged with two crimes; one crime is unauthorized access of a computer system and he is charged with a separate crime for destroying evidence during the investigation of the first crime.

  • by snerdy (444659) on Monday May 03, 2010 @10:58AM (#32072642)

    That's a pretty good point. On the other hand, it's also true that public perception of this type of activity changed dramatically in the year that passed between those two events and the response by authorities had shifted considerably. 1989 was a pretty unique year.

    For this reason, it's somewhat difficult to compare the two situations on the same grounds. It is unlikely that economic disparity is not the only influential factor.

  • by jmac_the_man (1612215) on Monday May 03, 2010 @06:09PM (#32078114)
    Except Kernell DIDN'T FIND ANYTHING INCRIMINATING IN THE E-MAIL. This was her personal e-mail account. Kernell went looking for the state business there and DIDN'T FIND ANY. But God forbid that fact ever showed up.

Whatever is not nailed down is mine. Whatever I can pry up is not nailed down. -- Collis P. Huntingdon, railroad tycoon

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