President Bush Signs HR 4709 -Telephone Records and Privacy Act of 2006

(Posted on behalf of NCISS and written by Bruce Hulme)

President Bush signed H.R. 4709, the “Telephone Records and Privacy Act of 2006” on Friday, June 12th. This Bill passed the House last April and the Senate on the last of the 109th Congress in December.

In addition – Bryan Wagner, a Colorado “private investigator” formerly in the employ of Action Research Group, was the first “player” in the Hewlett-Packard scandal pled guilty to federal charges. He is expected to testify against others that have or will be charged in connection with obtaining telephone records and computer information. Charges are also pending in the California court.

H.R. 4709 bans pretexting of telephone companies and their customers for “Confidential Phone Records Information.” Chapter 47 of title 18, United States Code, is amended by inserting “Sec. 1039. Fraud and related activity in connection with obtaining confidential phone records on a covered entity.” Key elements in this criminal violation are interstate or foreign commerce, making false statements to a covered entity, its employees, the customer or knowingly providing a false or fraudulent document to the entity or accessing customer accounts via the Internet, or by means of conduct that violate section 1030 of this title, without prior authorization from the customer.

There is a prohibition on the sale and transfer of Confidential Phone Records without prior authorization from the customer. A prohibition also exists in knowingly and intentionally purchasing or receiving (or attempting to do so) such information without prior authorization from the customer or if one has reason to know that such information was fraudulently obtained.

While recognizing that there have been exigent circumstances where accessing telephone toll records by investigators assisted in saving lives, locating abducted persons and recovering stolen property, NCISS still supported H.R. 4709 on the basis that the mood in Congress was to put forth legislation that would have expanded making pretexting illegal in areas other than just obtaining telephone records. The unintended consequences would have outlawed undercover operations in by the private sector; and that is just one example. Our analysis, even prior to the unfavorable publicity generated by the H-P matter, was that if HR 4709 failed to pass in the 109th Congress, in 2007 it would return with additional privacy protections and make the use of pretexting for any reason in a non-law enforcement setting illegal. Such measures could still be introduced in other legislation as the 110th Congress gets underway in 2007.

This week Senator Feinstein introduced two bills that NCISS will be watching very closely, S 238 the Social Security Number Misuse Protection Act and S 239 the Notification of Risk to Personal Data Act of 2007.

Every bill that NCISS took a position against in the Senate and House during the past two- year session of the 109th Congress, failed to be enacted into law. However, we expect our work will be considerably more difficult the next two years with both the Senate and House being controlled by the Democrats.

It is important that NCISS increase its membership and lobbying “war chest.” Any inquiries regarding applications for membership or contributing to the NCISS Legislative Committee Fund may be directed to the contact address below.

Bruce Hulme, NCISS Legislative Director

NCISS
7501 Sparrows Point Blvd.
Baltimore, MD 21219
Tel: 1-800-445-8408
email: nciss@verizon.net
or go to: www.nciss.org

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