ABC7 Legal Analyst On Pretexting

Sept. 6 - KGO (KGO) -- State Attorney General Bill Lockyer says two criminal statutes may have been violated. One is traditionally used to address hackers who illegally obtain information via computer, the other deals with identity theft claims.

ABC7 legal analyst Dean Johnson points out several federal and state bills are pending in the legislature to criminalize pretexting. But Johnson believes there's already legal protection here in California.

"Under existing criminal law, HP and its investigators may well be facing felony charges for this."

Johnson points to Penal Code Section 583.5 which reads,

"Every person who transmits or causes to be transmitted by means of wire, radio or television communication any words, sounds, writings, signs, signals, or pictures for the purpose of furthering or executing a scheme or artifice to obtain, from a public utility, confidential, privileged, or proprietary information, trade secrets, trade lists, customer records, billing records, customer credit data, or accounting data by means of false or fraudulent pretenses, representations, personations, or promises is guilty of an offense punishable by imprisonment in the state prison, or by imprisonment in the county jail not exceeding one year."

Johnson says the section creates what is known in California as a "wobbler."

"A wobbler can be charged as a felony or misdemeanor at the prosecutor's discretion," says Johnson. "The maximum penalty if charged as a felony is 3 years in state prison."

Johnson calls the pretexting an egregious invasion of privacy by HP. "The question is whether this is criminal conduct," says Johnson, "and I think it is."

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