Deceptive pre-texting is good?

Wired News: MPAA Kills Anti-Pretexting Bill

“The MPAA told some members the bill would interfere with piracy investigations,” an aide to former California state senator Debra Bowen said. The association “doesn’t want to hamstring investigators.”

The bill in question is California’s SB1666, a bill that took sharp aim at people using false identities and other deceptive means to gain access to the commercial records of others. For example, recently HP was involved in a high-profile scandal involving investigators hired by their board to investigate leaks, who used pre-texting to access private cell-phone records of “suspects” without any legal authorization to do so. The bill made no differentiation for the purpose of information gathering, though it makes ample room for the very real needs of law enforcement with Sec 2-3c.

“There’s a public reason and benefit for some of this information to be available to legitimate licensed investigators,” Sean Walsh, past president of the Califonia Association of Licensed Investigators and an investigator for 27 years said. “Should it be available to everyone out there? Probably not. There are people that have legitimate need for getting this information in terms of an investigation, enforcing a court order and helping to return a child. Those are all very legitimate reasons and by excluding that you do grave disservice to the average citizen and to large corporations.”

That seems to be the crux of the argument used by the MPAA, and other corporate bodies (such as HP board members when cornered about their involvement in the recent scandal), and on the face of it, its not a terrible argument. There are legitimate reasons for needing this information, and licensed, legitimate investigators should have some avenue available to access those records when necessary. But like any situation of wrong-doing and investigation, using deceptive means is NOT a valid option. Mis-representing and lying about your identity to gain someone’s banking information is, without ANY question, a serious identity theft fraud … there is no legitimate reason to treat cell-phone, telephone, credit card, or pizza restaurant order history any differently than banking information.

Thats the crux of it really … if it IS required in an investigation of wrong-doing, then there should be legal means available to get at the information. Like with traditional phone records, or bank records even, if investigators can present a legitimate reason to access, there are court orders and warrants available to access whatever information is required, but there is a key issue of oversight here that is NOT addressed by a solution that just allows pre-texting with no regulation. No investigative power, not least one that is serving the interests of a corporate power not directly answerable to society at large, should have the ability to access private records without some form of oversight, and thats the key issue here.

Ultimately, I doubt anyone will argue legitimate need to address situations of corporate espionage, or piracy, or other issues of criminal wrong-doing … there needs to be provisions in place to deal with those legitimate concerns in ways that have clear oversight of the activities involved. Any situation where investigators are free to simply use pre-texting in any situation they deem fit, with no oversight from anyone beyond those footing the bill, is fraught with the danger of abuse and corruption. Its not really surprising that the MPAA would be so short sighted … a lot of people today try to solidify their own power without thinking of the larger implications, and this is no different. When it is our own interests at stake, we want everything decided in our favour. But ultimately, that attitude leads to anarchy … without controls on when and how private information is available, and without rules about using fraud, deception, and lies as an investigative technique, we end up in a society where anyone can be investigated for anything with impunity. I think they used to call that a police state.

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