|Clifford Fishman , professor, law, was quoted in a New York Times article about the legality of monitoring strategies Hewlett-Packard used to screen employees' interactions with reporters. Lucia Silecchia, professor, law, was quoted in a New York Times article about the Red Mass held to mark the beginning of the Supreme Court judicial year. For the first time, the court has a Catholic majority with five justices who are members of the Church. See Professor Fishman's comments below.|
From: The New York Times Date: Sept. 30, 2006 Author: Miguel Helft WASHINGTON, Sept. 29 - Hewlett-Packard's effort to plug news leaks included monitoring at least one employee's instant-messaging exchanges with a reporter, according to documents provided to Congressional investigators.
The documents also provide other new details of the operation, including the company's payments for the services of investigators, and they shed light on a feud that simmered for months between Patricia C. Dunn, the chairwoman, and Thomas J. Perkins, a board member who resigned in protest over the inquiry.
They are included in the voluminous files made available to lawmakers in preparation for the House subcommittee hearing held Thursday on the Hewlett-Packard case.
In a March 2 e-mail message, Kevin T. Hunsaker, the senior lawyer in charge of the investigation, asked Fred Adler, the company's information security investigator, to "do some monitoring on incoming and outgoing calls to Pui-Wing Tam," a reporter at The Wall Street Journal, "and keep a really close eye on her I.M. traffic with Moeller," Mr. Hunsaker wrote, presumably referring to Michael Moeller of Hewlett-Packard's media relations team.
An e-mail message sent by Mr. Adler some two weeks earlier appears to celebrate what was a new investigative tool for the team. "New monitoring system that captures AOL Instant Messaging is now up and running and deployed on Moeller's computer," Mr. Adler wrote to Mr. Hunsaker and others on the investigative team. "It instantly began to pay results."
The rest of the message shows the text of close to 70 instant-messaging exchanges between Ms. Tam and Mr. Moeller, mostly discussing the company's earnings in what appears a fairly routine exchange between a reporter and a company spokesman.
Experts say it is not clear whether the monitoring of an employee's instant messages would raise any new legal issues for Hewlett-Packard or those involved.
If the employee is using the company's service as an Internet service provider, "then the company can monitor lawfully anything that the person sends or receives," said Clifford S. Fishman, a professor of law at Catholic University of America in Washington. But if the employee is using a third-party communications system, "it is less clear whether the company can monitor that."
As far as the monitoring of calls referred to in the message, the form was not specified. Hewlett-Packard has acknowledged that its operation included inspection of company phone records as well as acquiring private phone records through subterfuge, in a practice known as pretexting. But it has said no wiretapping was involved.
"I was aware that the company was monitoring instant messaging," Mr. Moeller said on Friday night, adding that Ms. Dunn and Mark V. Hurd, the chief executive, had both already apologized to him for the operation's scrutiny of him. Mr. Moeller was previously identified as a target of the pretexting efforts, along with board members and journalists, including Ms. Tam.
A spokesman for The Wall Street Journal declined to comment.
The documents also give an account of a daylong tracking of the activities of Mr. Moeller during a technology conference in Los Angeles, including reports on overheard snippets of his conversations.
Other documents provided to Congressional investigators revealed that Hewlett-Packard was billed a total of $325,641.65 for various services related to the leak investigation's second phase from January to April. That included $83,597.42 for surveillance, which was described as "Multiple Surv. And Sting Activity Palo Alto, Piedmont, SF, LA, CA & Denver CO." A parenthetical note clarifies that the surveillance included "trash re-con of all areas."
Background investigations on several board members and their relatives, as well as reporters for The Wall Street Journal and the online service CNet, did not come cheap. The bill was $66,688. There were also background checks on employees of Hewlett-Packard's media relations department, costing $6,435.
And locating, identifying, charting and cataloguing records of interested parties - the part of the investigation that apparently included pretexting - cost $44,875.
Invoices from the Action Research Group, the Florida company that is reported to have arranged the pretexting, are also among the more than 100 documents obtained by Congressional investigators. Many of them run in the vicinity of $100, but a 2005 invoice for call records of Carleton S. Fiorina, around the time of her dismissal as chairwoman and chief executive, shows a price tag of $500.
The invoices conclude with the line "Thank you for using our services!!!", all in capital letters, followed by a black-and-white rendition of Hello Kitty, a popular Japanese cartoon character.
The documents also illuminate the bitter conflict that developed over months between Ms. Dunn and Mr. Perkins, whose attacks on Ms. Dunn have been well publicized. They include an outburst at the board meeting in May, when Mr. Perkins resigned. But the animosity, according to Ms. Dunn, who resigned as chairwoman last week, had been building up earlier.
"I did not share details of my interactions with Tom during the year prior to his resignation," Ms. Dunn wrote to other Hewlett-Packard board members in an Aug. 17 e-mail message. "Tom's behavior to me in our one-on-one interactions was often so over the top that the simple facts would have seemed like exaggeration. I won't indulge in a chronology of the intimidation, pressure, rudeness and criticism that Tom directed at me, but will simply say that I have never had remotely similar experiences with anyone."
The investigation subcommittee of the House Energy and Commerce Committee, which held Thursday's hearing, continued its examination of pretexting on Friday with a hearing at which representatives of six cellular carriers testified. The officials said they thought pretexting should be against the law, but did not specifically endorse a pending bill approved by the House committee.
The committee's chairman, Representative Joe Barton, Republican of Texas, said Friday that the long-stalled legislation might come up for a House vote soon.
Two of the carriers have also initiated legal action against detective agencies identified as having played a role in pretexting in the Hewlett-Packard case.
On Friday, Cingular Wireless filed a lawsuit against CAS Agency Inc. of Carrollton, Ga., and Charles Kelly, the company's registered agent. Cingular contends that CAS illegally obtained the telephone records of Dawn Kawamoto, a reporter for the online technology news service CNet, as part of the Hewlett-Packard operation.
The lawsuit, filed in United States District Court in Atlanta, also names 100 "John Doe" defendants and 100 unidentified companies that Cingular says conspired with CAS Agency.
The move came one day after Verizon Wireless filed a similar lawsuit against unidentified individuals for illegally obtaining phone records of its customers in the Hewlett-Packard effort.