Pretexting, Subterfuge, and the Private Eye

-by Sean Chercover

You’ve probably read about the huge pretexting scandal that cost HP chairwoman Patricia Dunn her job yesterday. In a nutshell, Dunn was upset that a member of HP’s board had leaked to the press. She hired private investigators to find the source of the leak. The private eyes obtained the personal phone records of HP board members by calling the phone companies and impersonating the board members, pretending to be requesting their own records. They also impersonated various journalists in order to obtain their phone records.

Which is illegal.

When I was a P.I. back in the early 90s, I never heard the term “pretexting.” Back then, we liked to call things by their proper names, and we called it “lying.” When we wanted to sound fancy for our clients, we called it “subterfuge.” Or we talked of “employing a cover story.” And we understood that certain kinds of cover stories were off-limits.

Pretending to be the subject of the investigation was a gray area back then, but with the identity-theft laws that have since been passed, the law is now clear. In most states, a P.I. cannot legally pretend to be the subject of the investigation in order to obtain the subject’s personal information.

It is also illegal for a P.I. to impersonate a government official, or an official of an existing company. It is not, however, illegal to lie. So while I could not impersonate a cop when looking for information, I could, for example, pretend to be an employee of XYZ Insurance Company, as long as no such company exists.

But a recent California Senate bill (SB1666) proposed to erase such distinctions. SB1666 applied to both private investigators and to police, and it made no distinction between pretexting and subterfuge. In other words, it proposed to make lying illegal. Apparently, lawmakers in California decided that the First Amendment right to free speech does not include the right to lie, despite the fact that the Supreme Court has repeatedly ruled otherwise.

Interestingly, when the Illinois legislature passed a strong identity-theft law this summer, they reiterated the exception for private investigators, who may still employ subterfuge, “but may not portray him or herself as the individual whose personal identifying information he or she seeks.”

The California bill floundered and was withdrawn, (much to the relief of cops and P.I.s throughout the state) but lawmakers vowed to bring it back in the state legislature’s next session.

The thing is, by the time we reach the second grade, we’ve already been conned out of a peanut butter sandwich or two. Surely we don’t make it to adulthood without realizing that people sometimes lie. There are plenty of laws that prohibit such things as fraud and identity-theft, as there should be.

But how far do we want to take this? It seems to me that, in addition to being unconstitutional, any law that uses a broad brush to prohibit lying is unenforceable. Furthermore, such a law seems like an attempt to protect us from the responsibilities of adulthood.

Or am I mistaken?