Pretext - the inevitable.

Misrepresentation

A false statement or lie that can render the contract void.

How To Get People To Like You: 7 Ways From An FBI Behavior Expert

Meeting new people can be awkward. What should you say? How can you make a good impression? How do you keep a conversation going? shows relationships are vital to happiness and networking is the key to getting jobs and building a fulfilling career. But what's the best way to build rapport and create trust? Plain and simple, who can explain how to get people to like you? Robin Dreeke can. Robin was head of the FBI's Behavioral Analysis Program and has studied interpersonal relations for over 27 years. He's an expert on how to make people like you. Robin is the author of the excellent book, It's Not All About "Me": The Top Ten Techniques for Building Quick Rapport with Anyone. I gave him a call to get some answers. (Note that Robin is not speaking for the FBI here, these are his expert insights.) You're going to learn: The #1 secret to clicking with people. How to put strangers at ease. The thing you do that turns people off the most. How to use body language like a pro. Some great verbal jiu-jitsu to use on people who try to manipulate you. And a lot more. Okay, let's learn something. 1) The Most Important Thing To Do With Anyone You Meet Robin's #1 piece of advice: "Seek someone else's thoughts and opinions without judging them." Ask questions. Listen. But don't judge. Nobody — including you — likes to feel judged. Here's Robin: The number one strategy I constantly keep in the forefront of my mind with everyone I talk to is non-judgmental validation. Seek someone else's thoughts and opinions without judging them. People do not want to be judged in any thought or opinion that they have or in any action that they take. It doesn't mean you agree with someone. Validation is taking the time to understand what their needs, wants, dreams and aspirations are. So what should you do when people start spouting crazy talk? Here's Robin: What I prefer to try to do is, as soon as I hear something that I don't necessarily agree with or understand, instead of judging it my first reaction is, "Oh, that's really fascinating. I never heard it in quite that way. Help me understand. How did you come up with that?" You're not judging, you're showing interest. And that lets people calmly continue talking about their favorite subject: themselves. Studies show people get more pleasure from talking about themselves than they do from food or money: Talking about ourselves—whether in a personal conversation or through social media sites like Facebook and Twitter—triggers the same sensation of pleasure in the brain as food or money... (To learn how FBI hostage negotiators build rapport and trust, click here.) So you've stopped being Judgy Judgerson and you're happily validating. Oh, if it were only that easy... What's the problem here? Your ego. 2) Suspend Your Ego To Get People To Like You Most of us are just dying to point out how other people are wrong. (Comment sections on the internet are fueled by this, aren't they?) And it kills rapport. Want to correct someone? Want to one-up them with your clever little story? Don't do it. Here's Robin: Ego suspension is putting your own needs, wants and opinions aside. Consciously ignore your desire to be correct and to correct someone else. It's not allowing yourself to get emotionally hijacked by a situation where you might not agree with someone's thoughts, opinions or actions. Contradicting people doesn't build relationships. Dale Carnegie said it many years ago — and modern neuroscience agrees. When people hear things that contradict their beliefs, the logical part of their mind shuts down and their brain prepares to fight. Via Compelling People: The Hidden Qualities That Make Us Influential: So what happened in people's brains when they saw information that contradicted their worldview in a charged political environment? As soon as they recognized the video clips as being in conflict with their worldview, the parts of the brain that handle reason and logic went dormant. And the parts of the brain that handle hostile attacks — the fight-or-flight response — lit up. (For more on keeping a conversation fun, click here.) So you've stopped trying to be clever. But how do you get a reputation as a great listener? 3) How To Be A Good Listener We've all heard that listening skills are vital but nobody explains the right way to do it. What's the secret? Stop thinking about what you're going to say next and focus on what they're saying right now. Be curious and ask to hear more about what interests you. Here's Robin: Listening isn't shutting up. Listening is having nothing to say. There's a difference there. If you just shut up, it means you're still thinking about what you wanted to say. You're just not saying it. The second that I think about my response, I'm half listening to what you're saying because I'm really waiting for the opportunity to tell you my story. What you do is this: as soon as you have that story or thought that you want to share, toss it. Consciously tell yourself, "I am not going to say it." All you should be doing is asking yourself, "What idea or thought that they mentioned do I find fascinating and want to explore?" Research shows just asking people to tell you more makes you more likable and gets them to want to help you. The basics of active listening are pretty straightforward: Listen to what they say. Don't interrupt, disagree or "evaluate." Nod your head, and make brief acknowledging comments like "yes" and "uh-huh." Without being awkward, repeat back the gist of what they just said, from their frame of reference. Inquire. Ask questions that show you've been paying attention and that move the discussion forward. (To learn the listening techniques of FBI hostage negotiators, click here.) I know, I know — some people are just boring. You're not that interested in what they're saying. So what questions do you ask then, smart guy? 4) The Best Question To Ask People Life can be tough for everyone: rich or poor, old or young. Everyone. We all face challenges and we like to talk about them. So that's what to ask about. Here's Robin: A great question I love is challenges. "What kind of challenges did you have at work this week? What kind of challenges do you have living in this part of the country? What kinds of challenges do you have raising teenagers?" Everyone has got challenges. It gets people to share what their priorities in life are at that point in time. Questions are incredibly powerful. What's one of the most potent ways to influence someone? Merely asking for advice. Via Adam Grant's excellent Give and Take: A Revolutionary Approach to Success: Studies demonstrate that across the manufacturing, financial services, insurance, and pharmaceuticals industries, seeking advice is among the most effective ways to influence peers, superiors, and subordinates. Advice seeking tends to be significantly more persuasive than the taker's preferred tactics of pressuring subordinates and ingratiating superiors. Advice seeking is also consistently more influential than the matcher's default approach of trading favors. Twisting your mustache thinking you can use this for nefarious purposes? Wrong, Snidely Whiplash. It only works when you're sincere. Via Give and Take: A Revolutionary Approach to Success: In her research on advice seeking, Liljenquist finds that success "depends on the target perceiving it as a sincere and authentic gesture." When she directly encouraged people to seek advice as an influence strategy, it fell flat. (For a list of the questions that can create a strong bond in minutes, click here.) But what if you have to approach someone cold? How do you get people who might not want to talk to you to willingly give you their attention? 5) How To Make Strangers Feel At Ease First thing: tell them you only have a minute because you're headed out the door. Here's Robin: When people think you're leaving soon, they relax. If you sit down next to someone at a bar and say, "Hey, can I buy you a drink?" their shields go way up. It's "Who are you, what do you want, and when are you leaving?" That "when are you leaving" is what you've got to answer in the first couple of seconds. Research shows just asking people if now is a good time makes them more likely to comply with requests: The results showed that compliance rates were higher when the requester inquired about respondents' availability and waited for a response than when he pursued his set speech without waiting and inquiring about respondents' availability. Nobody wants to feel trapped talking to some weirdo. People are more likely to help you than you think, but they need to feel safe and in control. (For more on how to make friends easily, click here.) Even if you get all of the above right you can still come off like a shady used car salesman. And that fear stops you from meeting new awesome people. Robin says one of the key reasons people come off as untrustworthy is because their words and their body language are misaligned. Let's fix that. 6) The Best Body Language For Building Rapport Your words should be positive, free of ego and judgment — and your body language ("non-verbals") needs to match. Here are the things Robin recommends: "The number one thing is you've gotta smile. You absolutely have to smile. A smile is a great way to engender trust." "Keep that chin angle down so it doesn't appear like you're looking down your nose at anyone. And if you can show a little bit of a head tilt, that's always wonderful." "You don't want to give a full frontal, full body display. That could be very offensive to someone. Give a little bit of an angle." "Keep your palms up as you're talking, as opposed to palms down. That says, "I'm hearing what you're saying. I'm open to what your ideas are." "So I always want to make sure that I'm showing good, open, comfortable non-verbals. I just try to use high eyebrow elevations. Basically, anything going up and elevating is very open and comforting. Anything that is compressing: lip compression, eyebrow compression, where you're squishing down, that's conveying stress." Research backs him up. From Dale Carnegie to peer-reviewed studies, everyone says smiles matter. (In fact, to increase their power, smile slower.) It makes us happier too. Neuroscience research shows smiling gives the brain as much pleasure as 2000 bars of chocolate — or $25,000. Via Smile: The Astonishing Powers of a Simple Act: Depending on whose smile you see, the researchers found that one smile can be as pleasurable and stimulating as up to 2,000 bars of chocolate! ...it took up to 16,000 pounds sterling in cash to generate the same level of brain stimulation as one smile! This is equivalent to about $25,000 per smile... (To learn how to decode body language and read people like a book, click here.) So now you come off as the pleasant person you are, not as a scheming taker. But what do you do when the other person is a scheming taker? 7) How To Deal With Someone You Don't Trust The name of this blog is not "Helpful Tools For Sociopaths." I'm not trying to teach you to manipulate others. But what should do you do when you feel someone is using these methods to try and manipulate you? Don't be hostile but be direct: ask them what they want. What are their goals in this interaction? Here's Robin: The first thing I try to do is clarify goals. I'll stop and say, "You're throwing a lot of good words at me. Obviously you're very skilled at what you're doing. But what I'm really curious about... What's your goal? What are you trying to achieve? I'm here with my goals, but obviously you have to achieve your goals. So if you can just tell me what your objectives are, we can start from there and see if we can mutually take care of them. If not, that's fine too." I watch for validation. If someone is trying to validate me and my thoughts and opinions, I am alert to it. I love doing that as well. So now I'm looking for intent. Are you there for me or are you there for you? If you are there strictly for your own gain and you're not talking in terms of my priorities ever, that's when I'm seeing someone is there to manipulate me. Want to build a connection with someone? Focus on trust, not tricks. That's how you earn respect. Trust is fragile. And mistrust is self-fulfilling. When you ask people what the most important character trait is, what do they say? Trustworthiness. Participants in 3 studies considered various characteristics for ideal members of interdependent groups (e.g., work teams, athletic teams) and relationships (e.g., family members, employees). Across different measures of trait importance and different groups and relationships, trustworthiness was considered extremely important for all interdependent others... (To learn how to detect lies, click here.) That's a lot more to digest than "Just be yourself" but far more effective. Let's round it up and make it something you can start using today. Sum Up Here are Robin's tips: The single most important thing is non-judgmental validation. Seek someone else's thoughts and opinions without judging them. Suspend your ego. Focus on them. Really listen, don't just wait to talk. Ask them questions; don't try to come up with stories to impress. Ask people about what's been challenging them. Establishing a time constraint early in the conversation can put strangers at ease. Smile, chin down, blade your body, palms up, open and upward non-verbals. If you think someone is trying to manipulate you, clarify goals. Don't be hostile or aggressive, but ask them to be straight about what they want.

Federal Laws Prohibiting Pretexting

TABLE OF CONTENTS I. CURRENT FEDERAL LAWS PROHIBITING PRETEXTING 3 Gramm-Leach Bliley Act of 1999, P.L. 106-102 Telephone Records and Privacy Protection Act of 2006, P.L. 109-476 Federal Trade Commission Act, Section 5 II. PRETEXTING BILLS IN THE 110th CONGRESS 8 Data Accountability and Trust Act, H.R. 958 Consumer Telephone Records Protection Act of 2007, H.R. 852 III. PAST CONGRESSIONAL HEARINGS REGARDING PRETEXTING 11 • House Committee on Energy and Commerce - "Phone Records For Sale: Why Aren't Phone Records Safe from Pretexting?" Hearings Related to Phone Records (2006-2007) (February 1, 2006) • Senate Committee on Commerce, Science, and Transportation - "Protecting Consumers' Phone Records" (February 8, 2006) • House Committee on Energy and Commerce - "Internet Data Brokers and Pretexting: Who Has Access to Your Private Records?" (June 21, 2006) • House Committee on Energy and Commerce - "Internet Data Brokers and Pretexting: Who Has Access to Your Private Records?" (June 22, 2006) • House Committee on Energy and Commerce - "Hewlett-Packard's Pretexting Scandal" (September 28, 2006) • House Committee on Energy and Commerce - "Internet Data Brokers and Pretexting: Who Has Access to Your Private Records?" (September 29, 2006) • House Committee on Banking and Financial Services - "Use of Hearings Related to Financial Information Deceptive Practices to Gain Access to Personal Financial Information" (July 28, 1998) IV. EXISTING AND PENDING STATE PRETEXTING LAWS 16 Section 638 of the California Penal Code (Senate Bill 202 of 2006) Pending California Legislation - Senate Bill 328 (Bill Number: SB 328) V. OVERVIEW AND ANALYSIS OF STATE & FEDERAL PRETEXTING CASE LAW & PROFESSIONAL ETHICS ISSUES RELATED TO THE USE OF PRETEXTING BY ATTORNEYS 18 Fishing With Dynamite: "How Lawyers Can Avoid Needless Problems From 'Pretextual Calling'" (Alabama State Bar Magazine) 2008 Understanding Investigative Pretexts (www.beaprivateeye.com) 2002 The Truth Behind Pretexting: In-house Investigations and Professional Responsibility Concerns (Robbins, Kaplan, Miller and Ciresi, LLP) 2007 Electronic Privacy Information Center (EPIC): "Letter to Ethics Board Concerning Attorneys' Use of Pretexting" 2006 VI. POSITIONS OF THE PRIVATE INVESTIGATIONS COMMUNITY AND REGULATORS ON PRETEXTING 23 National Council of Investigation & Security Services (NCISS) Federal Trade Commission (FTC) International Association of Security and Investigative Regulators (IASIR) State Licensing Requirements for Private Investigators VII. PRESS REPORTS OF PRETEXTING SCANDALS 24 I. CURRENT FEDERAL LAWS PROHIBITING PRETEXTING The Gramm-Leach-Bliley Act makes it illegal for anyone to: Gramm-Leach Bliley Act of 1999, Public Law 106-102 • Use false, fictitious or fraudulent statements or documents to get customer information from a financial institution or directly from a customer of a financial institution. • Use forged, counterfeit, lost, or stolen documents to get customer information from a financial institution or directly from a customer of a financial institution. • Ask another person to get someone else's customer information using false, fictitious or fraudulent statements or using false, fictitious or fraudulent documents or forged, counterfeit, lost, or stolen documents. Gramm-Leach-Bliley Act 15 USC, Subchapter II, Sec. 6821-6827 Fraudulent Access to Financial Information (a) Prohibition on obtaining customer information by false pretenses. (b) Prohibition on solicitation of a person to obtain customer information from financial institution under false pretenses. (c) Nonapplicability to law enforcement agencies. (d) Nonapplicability to financial institutions in certain cases. (e) Nonapplicability to insurance institutions for investigation of insurance fraud. (f) Nonapplicability to certain types of customer information of financial institutions. (g) Nonapplicability to collection of child support judgments. Sec. 6821 - Privacy protection for customer information (a) In general Sec. 6824. Relation to State laws This subchapter shall not be construed as superseding, altering, or affecting the statutes, regulations, orders, or interpretations in effect in any State, except to the extent that such statutes, regulations, orders, or interpretations are inconsistent with the provisions of this subchapter, and then only to the extent of the inconsistency. (b) Greater protection under State law For purposes of this section, a State statute, regulation, order, or interpretation is not inconsistent with the provisions of this subchapter if the protection such statute, regulation, order, or interpretation affords any person is greater than the protection provided under this subchapter as determined by the Federal Trade Commission, after consultation with the agency or authority with jurisdiction under section 6822 of this title of either the person that initiated the complaint or that is the subject of the complaint, on its own motion or upon the petition of any interested party. Telephone Records and Privacy Protection Act of 2006, P.L. 109-476 The Telephone Records and Privacy Protection Act of 2006 amends the federal criminal code to prohibit the obtaining, in interstate or foreign commerce, of confidential phone records information from a telecommunications carrier or IP-enabled voice service provider (covered entity) by: (1) making false or fraudulent statements to an employee of a covered entity or to a customer of a covered entity; (2) providing false or fraudulent documents to a covered entity; or (3) accessing customer accounts of a covered entity through the Internet or by fraudulent computer-related activities without prior authorization. Imposes a fine and/or imprisonment of up to 10 years. Sec. 1039. Fraud and related activity in connection with obtaining confidential phone records information of a covered entity (a) Criminal Violation- Whoever, in interstate or foreign commerce, knowingly and intentionally obtains, or attempts to obtain, confidential phone records information of a covered entity, by-- (1) making false or fraudulent statements or representations to an employee of a covered entity; (2) making such false or fraudulent statements or representations to a customer of a covered entity; (3) providing a document to a covered entity knowing that such document is false or fraudulent; or (4) accessing customer accounts of a covered entity via the Internet, or by means of conduct that violates section 1030 of this title, without prior authorization from the customer to whom such confidential phone records information relates The Federal Trade Commission Act (Section 5) bars "unfair or deceptive acts" in business practices, and according to the FTC, "generally prohibits pretexting for sensitive consumer information." Federal Trade Commission Act, Section 5 The following is an excerpt from Statement of the FTC at a July 1998 U.S. House Banking Committee Describing the use of the FTC Act to stop pretexting: Given the limitations of the IRSG Principles, the Commission will need to address the problem of pretexting by doing what it does best -- law enforcement. Indeed, although the Commission encourages industry self-regulation, the Commission is first and foremost a civil law enforcement agency, whose mandate is to combat unfair and deceptive practices. And the practice of obtaining confidential information for resale under false pretenses appears to be just that -- unfair and deceptive. FTC Authority to Combat the Act of Pretexting to Obtain Confidential Information In cases of unfairness or deception, the Commission can issue administrative complaints, conduct administrative adjudications, and issue cease and desist orders.(23) Further, in cases of fraud and other serious misconduct, Section 13(b) of the FTCA authorizes the Commission to seek injunctive and other equitable relief in federal court.(24) In a Section 13(b) action, a court may exercise the full breadth of its equitable authority, including the issuance of a permanent injunction and "any ancillary relief necessary to accomplish complete justice."(25) This authority includes the power to order consumer redress and to compel disgorgement of a defendant's ill- gotten gains. (26) The Commission has filed over 500 Section 13(b) cases in federal court. We believe the act of pretexting by information brokers likely violates the FTCA's prohibition of "unfair or deceptive acts or practices in or affecting commerce" and would warrant filing a Section 13(b) action in federal court to obtain equitable relief.(27) First, making misrepresentations to a financial institution to obtain confidential information for resale may be a deceptive act affecting commerce.(28) Second, representing to customers that information will be obtained legally, when in fact it can be obtained only through actions that likely violate the FTCA and certain other statutes(29) may also be a deceptive act affecting commerce.(30) In addition, obtaining and reselling a consumer's confidential financial information may be unfair acts, in violation of Section 5. To establish an unfairness theory, the Commission must show (1) that the practice of obtaining consumers' private financial information without permission or under false pretenses causes, or is likely to cause, substantial injury; (2) that the injury is not outweighed by countervailing benefits to consumers or competition; and, (3) that consumers could not have avoided the injury.(31) First, we believe that the invasion to consumers' privacy observed here may constitute substantial injury.(32) In some instances, the ability of a third party to use a consumer's financial information can cause substantial monetary harm. In assessing injury, a court may consider, among other things, whether the conduct violates public policy as established by "statute, common law, industry practice, or otherwise."(33) The value our society places on protecting the privacy of financial information is demonstrated by federal statutes that protect the confidentiality of individuals' financial information such as the Fair Credit Reporting Act,(34) the Right to Financial Privacy Act,(35) the Electronic Fund Transfer Act,(36) as well as numerous state statutes,(37) state court decisions holding that banks have an implied duty to maintain the confidentiality of financial information,(38) and the precautionary practices employed by the banking industry to protect their account holders' information.(39) Second, harmed consumers, because they typically have no way of knowing that an information broker was attempting to access their financial information, cannot avoid the injury. Finally, using false pretenses to obtain confidential bank account information appears to provide no countervailing benefit to consumers or competition. (40) In short, we believe the Commission likely would succeed in a law enforcement action against pretexters, either on a deception or unfairness theory. We also believe that we could obtain significant remedial relief, including a permanent injunction against the practices, disgorgement of ill-gotten gains, and/or consumer redress. Link to Full Prepared Statement Back to Table of Contents II. PRETEXTING LEGISLATION IN THE 110th CONGRESS Sponsor: Rep. Bobby L. Rush (D - IL) Date of Introduction: February 8, 2007 Data Accountability and Trust Act, H.R. 958 Status: Referred to House Subcommittee on Commerce, Trade and Consumer Protection Language Regarding Pretexting: SEC. 2. REQUIREMENTS FOR INFORMATION SECURITY (c) Special Requirements for Information Brokers- (5) PROHIBITION ON PRETEXTING BY INFORMATION BROKERS- (A) PROHIBITION ON OBTAINING PERSONAL INFORMATION BY FALSE PRETENSES- It shall be unlawful for an information broker to obtain or attempt to obtain, or cause to be disclosed or attempt to cause to be disclosed to any person, personal information or any other information relating to any person by-- (i) making a false, fictitious, or fraudulent statement or representation to any person; or (ii) providing any document or other information to any person that the information broker knows or should know to be forged, counterfeit, lost, stolen, or fraudulently obtained, or to contain a false, fictitious, or fraudulent statement or representation. (B) PROHIBITION ON SOLICITATION TO OBTAIN PERSONAL INFORMATION UNDER FALSE PRETENSES- It shall be unlawful for an information broker to request a person to obtain personal information or any other information relating to any other person, if the information broker knew or should have known that the person to whom such a request is made will obtain or attempt to obtain such information in the manner described in subsection (a). (d) Exemption for Telecommunications Carrier, Cable Operator, Information Service, or Interactive Computer Service- Nothing in this section shall apply to any electronic communication by a third party stored by a telecommunications carrier, cable operator, or information service, as those terms are defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153), or an interactive computer service, as such term is defined in section 230(f)(2) of such Act (47 U.S.C. 230(f)(2)). Sponsor: Rep. Jay Inslee (D - WA) Date of Introduction: February 6, 2007 Consumer Telephone Records Protection Act of 2007, H.R. 852 Status: Referred to House Subcommittee on Telecommunication and the Internet Language Regarding Pretexting: SEC. 2. FINDINGS. Congress finds that-- (1) customer telephone records may be accessed without authorization of the customer by-- (A) an employee of the telephone company selling the data; (B) `pretexting', whereby a data broker or other person pretends to be the owner of the phone and convinces the telephone company's employees to release the data to them; or (C) unauthorized access of accounts via the Internet; and (2) because telephone companies encourage customers to manage their accounts online, many set up the online capability in advance. Many customers never access their Internet accounts, however. If someone seeking the information activates the account before the customer, he or she can gain unfettered access to the telephone records and call logs of that customer. SEC. 3. UNFAIR AND DECEPTIVE ACTS AND PRACTICES IN CONNECTION WITH OBTAINING CONFIDENTIAL PHONE RECORDS INFORMATION OF A COVERED ENTITY. (a) Prohibition on Obtaining Confidential Phone Records Information Under False Pretenses- It shall be unlawful for any person in interstate or foreign commerce to knowingly and intentionally obtain, or attempt to obtain, confidential phone records information of a covered entity, by-- (1) making false or fraudulent statements or representations to an employee of a covered entity; (2) making such false or fraudulent statements or representations to a customer of a covered entity; (3) providing a document to a covered entity knowing that such document is false or fraudulent; or (4) accessing customer accounts of a covered entity via the Internet, or by means of conduct that violates section 1030 of this title, without prior authorization from the customer to whom such confidential phone records information relates. Back to Table of Contents III. PAST CONGRESSIONAL HEARINGS ON PRETEXTING Hearings Related to Phone Records (2006-2007) House Committee on Energy and Commerce - "Phone Records For Sale: Why Aren't Phone Records Safe from Pretexting?" February 1, 2006 Panel 1 Witnesses: Mr. Kevin J. Martin - Chairman; Federal Communications Commission Mr. Jon Leibowitz - Commissioner; Federal Trade Commission Panel 2 Ms. Lisa Madigan - Attorney General, State of Illinois Mr. Steve Largent - President and Chief Executive Officer; Cellular Telecommunications and Internet Association Mr. Edward Merlis - Senior Vice President, Law & Policy; United State Telecom Association Mr. Marc Rotenberg - Executive Director; Electronic Privacy Information Center Mr. Robert Douglas - Chief Executive Officer; PrivacyToday.com Link to the Statements and Testimonies Senate Committee on Commerce, Science, and Transportation - "Protecting Consumers' Phone Records" February 8, 2006 Panel 1 Witnesses: Mr. Charles E. Schumer - United States Senator, New York Panel 2 Ms. Kris Monteith - Chief of Enforcement Bureau; Federal Communications Commission Ms. Lydia Parnes - Director; Bureau of Consumer Protection, Federal Trade Commission Mr. Marc Rotenberg - President and Executive Director; Electronic Privacy Information Center Mr. Robert Douglas - Chief Executive Office; PrivacyToday.com Ms. Cindy Southworth - Director of Technology and Director of the Safety Net Project; National Network to End Domestic Violence Link to the Statements, Testimonies, and Transcript House Committee on Energy and Commerce - "Internet Data Brokers and Pretexting: Who Has Access to Your Private Records?" June 21, 2006 Panel 1 Witnesses: Mr. Adam Yuzuk - Atlantic Beach, NY Panel 2 Mr. James Rapp - Touch Tone Information Mr. David Gandal - Shpondow.com Panel 3 Mr. John Strange - Worldwide Investigations Ms. Laurie Misner - Global Information Group Mr. Jay Patel - Abika.com Mr. Tim Berndt - Relia Trace Locate Services Mr. Ed Herzog - Global Information Group Mr. James Welker - Universal Communications Co. Mr. Skipp Porteous - Sherlock Investigations Mr. Patrick Baird - PDJ Services Ms. Michele Yontef - TelcoSecrets.com Mr. Steven Schwartz - First Source Information Specialists Mr. Carlos Anderson - C.F. Anderson, PI Link to the Statements and Testimonies House Committee on Energy and Commerce - "Internet Data Brokers and Pretexting: Who Has Access to Your Private Records?" June 22, 2006 Panel 1 Witnesses: Mr. Peter Lyskowski - Assistant Attorney General; Missouri Attorney General's Office Ms. Julia Harris - Assistant Attorney General; Florida Attorney General's Office Panel 2 Mr. Paul Kilcoyne - Deputy Assistant Director of Investigations; U.S. Immigration and Customs Enforcement Ms. Elaine Lammert -Deputy General Counsel, Investigative Law Branch; Federal Bureau of Investigation Mr. James J. Bankston - Chief Inspector, Investigative Services Division; U.S. Marshals Service Ms. Ava Cooper Davis - Deputy Assistant Administrator, Office of Special Intelligence, Intelligence Division; U.S. Drug Enforcement Administration Mr. W. Larry Ford - Assistant Director, Office of Public and Governmental Affairs; Bureau of Alcohol, Tobacco, Firearms, and Explosives Panel 3 Mr. Raul Ubieta - Police Major, Miami-Dade Police Department; Economic Crimes Bureau Mr. David L. Carter - Assistant Chief of Police; Austin Police Department Link to the Statements and Testimonies House Committee on Energy and Commerce - "Hewlett-Packard's Pretexting Scandal" September 28, 2006 Panel 1 Witnesses: Mr. Darren Brost - Austin, TX Mr. Bryanh Wagner - Littleton, CO Mr. Charles Kelly - Villa Rica, GA Ms. Ann Baskins - Senior Vice President, General Counsel and Secretary; Hewlett-Packard Company Mr. Ronald R. DeLia - Managing Director; Security Outsourcing Solutions, Inc. Mr. Anthony Gentilucci - Manager, Global Security Investigations; Hewlett-Packard Company Mr. Joe Depante - Owner; Action Research Group Ms. Cassandra Selvage - Eye in the Sky Investigations, Inc. Mr. Kevin T. Hunsaker - Senior Counsel, Legal Department; Hewlett-Packard Company Ms. Valerie Preston - In Search Of, Inc. Panel 2 Mr. Fred Adler - IT Security Investigations; Hewlett-Packard Company Mr. Larry W Sonsini Esq. - Chairman; Wilson Sonsini Goodrich & Rosati Ms. Patricia Dunn - Former Chairman of the Board; Hewlett-Packard Company Panel 3 Mr. Mark Hurd - President, Chief Executive Officer, and Chairman of the Board; Hewlett-Packard Company Link to the Statements, Testimonies, and Transcripts House Committee on Energy and Commerce - "Internet Data Brokers and Pretexting: Who Has Access to Your Private Records?" September 29, 2006 Panel 1 Witnesses: Mr. Doug Atkin - Anglo-American Investigations Inc. Panel 2 Mr. Christopher Byron - Journalist; The New York Post Panel 3 Mr. Thomas Meiss - Associate General Counsel; Cingular Wireless Mr. Michael Holden - Litigation Counsel; Verizon Wireless Mr. Charles Wunsch - Vice President for Corporate Transactions and Business Law; Spring Nextel Ms. Lauren Venezia - Deputy General Counsel; T-Mobile USA Mr. Greg Schaffer - Chief Security Officer; Alltell Wireless Ms. Rochelle Boersma - Vice President for Customer Service; U.S. Cellular Panel 4 Mr. Joel Winston - Associate Director, Division of Privacy and Identity; Protection Bureau of Consumer Protection Ms. Kris Anne Monteith - Chief, Enforcement Bureau; Federal Communications Commission Link to the Statements, Testimonies, and Transcript Hearings Related to Financial Information House Committee on Banking and Financial Services - "Use of Deceptive Practices to Gain Access to Personal Financial Information" July 28, 1998 Panel 1 Witnesses: Al Schweitzer - Private Investigator and Security Consultant Robert Douglas - President, Douglas Investigations Panel 2 Julie L. Williams - Acting Comptroller of the Currency Mozelle W. Thompson - Commissioner; Federal Trade Commission Jeff Clements - Assistant Attorney General for the Commonwealth of Massachusetts Panel 3 Boris F. Melnikoff - Senior Vice President; Wachovia Corporation (appearing on behalf of the American Bankers Association) Eddy L. McClain - National Council of Investigation and Security Services Robert Glass - Vice President of National Information Services, LEXIS-NEXIS, appearing on behalf of the Individual Reference Services Group Evan Hendricks - Editor and Publisher, Privacy Times Russell Schrader - Senior Vice President and Assistant General Counsel, VISA Link to the Statements, Testimonies, and Transcripts Back to Table of Contents IV. EXISTING AND PENDING STATE PRETEXTING LAWS Section 638 of the California Penal Code (Senate Bill 202 of 2006) Status: Approved by Governor on September 29, 2006. Filed with Secretary of State September 29, 2006. Went into effect January 1, 2007. Summary: An act to add Section 638 to the Penal Code, relating to privacy. Language Regarding Pretexting SECTION 1. Section 638 is added to the Penal Code, to read: : 638. (a) Any person who purchases, sells, offers to purchase or sell, or conspires to purchase or sell any telephone calling pattern record or list, without the written consent of the subscriber, or any person who procures or obtains through fraud or deceit, or attempts to procure or obtain through fraud or deceit any telephone calling pattern record or list shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both a fine and imprisonment. If the person has previously been convicted of a violation of this section, he or she is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year, or by both a fine and imprisonment. Link to article discussing Senate Bill 202 Pending California Legislation - Senate Bill 328 of 2007 Introduced by: Corbett Date of Introduction: February 16, 2007 Status: Pending Summary: An act to amend Sections 1798.80 and 1798.84 of, and to add Section 1798.83.5 to, the Civil Code, relating to personal information. Language Regarding Pretexting: "This bill includes a telephone calling pattern record or list, as defined, in the definition of personal information" that a business is required to ensure personal privacy. The bill also prohibits any person, as defined, from, among other things, obtaining or attempting to obtain, or causing or attempting to cause the disclosure of, personal information about a customer or employee contained in the records of a business through specified methods, such as by making false, fictitious, or fraudulent statements or representations, with specified exceptions. The bill provides civil remedies for the violation thereof, and would make related and conforming changes in that regard." Link to Bill Analysis Link to California State Senate Documents Back to Table of Contents V. OVERVIEW AND ANALYSIS OF STATE & FEDERAL PRETEXTING CASE LAW & PROFESSIONAL ETHICS ISSUES RELATED TO THE USE OF PRETEXTING BY ATTORNEYS This comprehensive examination of pretexting provides an excellent overview of pretexting. The authors provide a brief review of the Hewlett-Packard scandal as well as a detailed explanation of what "pretexting" actually is. They explore several of the existing laws, including certain IP cases involving pretextual calling, and explain the legal issues of each statute/case individually. The authors also look at some of the limits of pretextual calling and present some guidelines for effectively utilizing pretexting within legal parameters. They conclude by stating, "When engaging in "pretexting," investigators and the lawyers who hire them should take care to operate within the law and to abide by the relevant rules of professional conduct. Miscalculations can be costly." Fishing With Dynamite - How Lawyers Can Avoid Needless Problems From "Pretextual Calling" (Alabama State Bar Magazine) 2008 Section and analysis from article: Understanding Investigative Pretexts 2002 CASE LAW: FTC v. Rapp, CA 99-WM-783 (D.Col.) The actions of James Rapp, a private investigator who owned a firm called Touch Tone Information, specializing in pretext investigations, resulted in an indictment and conviction for racketeering, with a 75-day jail sentence and four years of probation. The verdict was handed down in Colorado in January 2000. Bottom line: Do not use pretext to gain access to banking and financial customer data. While this may seem like a common sense issue, you cannot legally access someone else's financial records and bank information. This is among the most heavily protected areas of personal privacy. The recently passed Gramm-Leach-Bliley Financial Services Modernization Act specifically makes gaining unauthorized access to banking and financial customer data through pretext a criminal offense. There are investigators who like to grab all available information when conducting an investigation. This is wasteful, dangerous and unnecessary. While such information may prove useful during an investigation, you might also gain it through previously submitted financial statements, Dun & Bradstreet reports and similar data checks, as well as through conducting interviews. The flip side is the inadvertent creation of a claim for the insured for invasion of privacy - a claim that would likely prevail. Insurance Claim Information: Several states, 17 at last count, have adopted some version of the National Association of Insurance Commissioner's Insurance Information and Privacy Protection Model Act (NAIC 670-1), which states: No insurance institution, agent or insurance support organization shall use or authorize the use of pretext interviews to obtain information in connection with an insurance transaction; provided, however, a pretext interview may be undertaken to obtain information from a person or institution that does not have a generally or statutorily recognized privileged relationship with the person about whom the information relates for the purpose of investigating a claim where, based upon specific information available for review by the commissioner, there is a reasonable basis for suspecting criminal activity, fraud, material misrepresentation or material non-disclosure in connection with the claim. Food Lion, Inc. v. Capital Cities/ABC, Inc., 964 F.Supp. 956 (M.D. N.C. 1997) For those outside Minnesota, pretext remains a viable means for gaining information. This was evidenced in the 1997 Food Lion, Inc. v. Capital Cities/ABC, Inc., 964 F.Supp. 956 (M.D. N.C. 1997) case. Many remember the multi-million-dollar lower court verdict, which was reduced to just $2 by the 4th Circuit Court of Appeals. While not endorsing pretext, it did establish that the mere use of a ruse was not sufficient to create damages. Of particular note, the state of Minnesota specifically prohibits any type of pretext in Chapter 72A of the Minnesota Insurance Statute. Green v. State Farm Fire and Casualty, 667 F.2d 22 (9th Cir. 1982) The circumstances in this case far exceed the normal pretext. In this instance of suspected arson, the adjuster posed as a state policeman, threatened the insured with prosecution (in the role of adjuster) and implied to neighbors that the insured had set the fire. It is the view of this author that the $250,000 in punitive damages had more to do with the nature of the ruse and the adjuster's conduct than the mere use of the pretext. Redner v. Worker's Compensation Appeals Board, 485 P.2d 799 (Cal. 1971) In this case, the pretext again went far beyond an indirect interview. An investigator induced the claimant to drink to intoxication and then saddle and ride a horse, all the latter of which was videotaped by the investigator. Here, again, the overzealous tactics of the investigator are more in question than the pretext element itself. As evidence of many courts' permitting pretext as a viable investigative tool, I offer the following: Turner v. General Adjustment Bureau, 832 P2.d 62 (Utah App 1992) In this case, investigators were repeatedly invited into the claimant's home while posing as marketing representatives. They only made note of the claimant's comments about her activities and did not videotape her while inside her residence. Videotape was only obtained outside the claimant's residence. As such, the court ruled that the investigators' actions caused no damages because the time inside the house was brief and for a purpose permitted by the claimant." The Truth Behind Pretexting: In-house Investigations and Professional Responsibility Concerns, 2007 By Patrick Arentz (Robins, Kaplan, Miller and Ciresi, LLC) Excerpt: "What is Pretexting? Pretexting is a practice where an individual lies about her identity in order to obtain confidential or privileged information that she is not entitled to. There are a number of different ways pretexting occurs. Pretexters may use the telephone or computer. They may claim to be an institution like a bank or credit agency, or they may call a company claiming to be the consumer. Pretexting for financial data is a federal offense under the Gramm-Leach-Bliley Act.[1] At the time of the H-P scandal, the legality of pretexting for other forms of information, such as for phone records, was considered a legal gray area.[2] Under federal law, pretexting may fall within the proscriptions of wire[3] or computer fraud.[4] And just last May, for example, the Federal Trade Commission, in an attempt to stop pretexting, charged five internet companies with violating Section 5 of the FTC Act, which bars "unfair or deceptive acts" in business practices.[5] State law crimes involving fraud and identify theft-related statutes may also be used to prosecute pretexters. On January 12, 2007, the President signed into law the Telephone Records and Privacy Act of 2006.[6] This new law makes it a federal felony to fraudulently acquire telephone records.[7] Among other things, the Act makes it a crime to knowingly and intentionally obtain confidential phone records information of a "covered entity" in interstate or foreign commerce by making false or fraudulent statements or representations to an employee of a "covered entity."[8] The term "covered entity" is defined as all telecommunications carriers, including those providing IP-enabled voice service (voice-over-internet protocol services).[9] " Electronic Privacy Information Center (EPIC) - Letter to Ethics Board Concerning Attorneys' Use of Pretexting 2006 Excerpt: "In July 2005, EPIC began a campaign to end the practice of "pretexting."[1] Pretexting is the use of impersonation or fraud to trick another person into releasing personal information. Through pretexting, online data brokers and investigators offer to obtain private calling records, the identities of individuals who use dating services, and the identities of people who use P.O. Boxes. Many of these services are advertised online for any member of the public to buy data on others. EPIC identified dozens of websites that offered to obtain personal information through pretexting, and submitted a list of 40 such sites to the Federal Trade Commission for investigation. [2] We also petitioned the Federal Communications Commission to protect individuals' phone records from pretexting.[3] In the course of investigating pretexting, it has become increasingly clear that attorneys are major consumers of pretexting services... We believe that pretexting is incompatible with ABA Model Rules 1.2, 3.4, 4.1, 4.4, and 8.4. We provide documentation below of the mounting evidence showing that attorneys are purchasing the services of pretexters, and urge you to take action to prevent attorneys from using pretexting services." Back to Table of Contents VI. POSITIONS OF THE PRIVATE INVESTIGATIONS COMMUNITY AND REGULATORS ON PRETEXTING National Council of Investigation & Security Services (NCISS) o NCISS Position Statement on the Acquisition and Use of Telephone Records o The NCISS website has several articles concerning pretexting and its use in investigations: • Pretexting: A Case of Mistaken Identity • An Ethical Look at Pretexting by Kitty Hailey, CLI* o Federal Trade Commission FTC: Facts for Consumers "Pretexting: Your Personal Information Revealed" o The FTC on Pretexting: The PI Magazine Interview with Joel Winston; Jan/Feb 2005 International Association of Security and Investigative Regulators o In 2006, IASIR issued the following resolution: "Be it resolved that IASIR recognizes the common practice of pretext as an investigative tool in lawful investigations by both public law enforcement and licensed private investigators and security practitioners." The following is a comprehensive list of all fifty states' requirements and licensing agencies that are required for private investigators: State Licensing Agencies http://www.nciss.org/Links/State_Licensing_Agencies.htm. The list indicates there are ten states that do not require private investigators to be licensed statewide. Some cities in a few of these states require licenses to offer private investigation services, some only require business licenses, and the remainder do not regulate the private investigation business at all. Back to Table of Contents VII. PRESS REPORTS OF PRETEXTING SCANDALS Portfolio.com Diary of a Short-Seller (2008) Excerpt : "Einhorn was investigated by the S.E.C., and documents related to his Allied speech and positions were subpoenaed. (Then-New York attorney general Eliot Spitzer's office also looked into Einhorn's activities but took no action.) One of the S.E.C.'s lawyers eventually left and registered as an Allied lobbyist. Through pretexting—pretending to be someone else—an Allied investigator went on to snatch Einhorn's phone records, a case that generated much less attention than a similar breach at Hewlett-Packard that involved pretexting journalists. (Allied eventually admitted to having the records but denied authorizing pretexting.)" Toyota Sued For Cell Phone Pretexting (2008) Excerpt: "A former employee of Toyota's Georgetown, Kentucky plant has sued the auto maker, one of Kentucky's largest employers, for accessing his personal cell phone records by using a technique called pretexting during an internal investigation at the Georgetown plant in 2005. Although federal law requires that the owner of a cell phone must give permission before any third party accesses the owner's cell phone records, the employee, Charles W. Jones, Jr., has stated in court documents that he did not give Toyota permission to access his records." Belfair couple pleads guilty in nationwide identity-theft conspiracy (2008) Excerpt Emilio Torrella, 36, and his wife, Brandy, 27, of Belfair, admitted Tuesday to a scheme to illegally obtain confidential information on citizens for law firms, insurance companies and collection agencies. : "The Mason County couple who prosecutors say were key players in a "pretexting" conspiracy among private investigators from Texas to New York have pleaded guilty to conspiracy, wire fraud and aggravated identity theft in federal court. The Torrellas are owners of BNT Investigations, which federal prosecutors say was at the center of a nationwide investigation prosecutors dubbed "Operation Dialing for Dollars." The investigation targeted private investigators who lied to government agencies, including the Social Security Administration and Internal Revenue Service, to obtain confidential information on citizens." Liar, Liar, and Pretexting (2006) ExcerptFTC fined James and Regena Rapp $200,000 for pretexting: "Some of the cases brought by the government under consumer protection statutes have been downright nasty. In 1999 for example, the after James Rapp reportedly wrote a 1000 page book about how to obtain information, and reportedly obtained private information on people like Monica Lewisnky, the Ramsey family, and others - usually at the behest of private investigators. In another case in 2003, a man contacted an Internet based company called Docusearch.com to find out information about his former girlfriend. He purchased various services from the online company, including her address, social security number, employer information including employer's address. Docusearch hired an investigator, Michele Gambino to find this information, which she did by "pretexting" the ex-girlfriend. For a few hundred dollars, the ex boyfriend located his ex-girlfriend, found her, and killed her, before killing himself. Her estate sued Docusearch, and the court found that the pretexting was a deceptive trade practice. In another case, Massachusetts v. Source One, Source One advertised in a bunch of legal periodicals that it would conduct "asset searches" for a fee. Lots of lawyers used their services to find out whether people they were suing (or about to sue) had any assets worthy of attachment - after all, you don't want to sue unless you can collect, right? Problem was, as everybody knows (or should know) financial records are presumably secret. A host of government regulations, including the Gramm Leach Bliley Act (GLBA), and Office of the Comptroller of the Currency and other financial regulations prohibit financial institutions from disclosing this information except under certain circumstances - and helping out private investigators [isn't] one of those recognized exceptions (that is, without a subpoena)." FTC Permanently Halts 'Pretexting' Scheme (2008) Excerpt: The Federal Trade Commission has put a permanent halt to an operation that allegedly obtained consumers' confidential phone records without their knowledge or consent and sold them to third parties... This is the latest in a series of FTC cases targeting telephone pretexters - individuals who use false pretenses to obtain consumers' confidential information. Since 2006 the FTC has charged sixteen individuals and their corporations with violating federal law by pretexting to obtain phone records of third parties. All have now been barred from pretexting and all have been ordered to give up the money they made engaging in the illegal practice. In February 2007, the FTC asked a U.S. district court to order a permanent halt to the operations of a company that sold consumers' confidential phone records, including information on calls placed and received. The FTC also sued the individuals who had used false pretenses to obtain the records from phone companies and then supplied those records to the company for a fee. The agency alleged these practices were unfair and deceptive in violation of federal law, and could endanger consumers' safety. The agency also asked the court to order the defendants to give up their ill-gotten gains."

Pretexting

occurs when someone deceives by pretending to be someone else