As detailed in Cynthia Allen’s blog a week ago, Hewlett-Packard has found itself in a sticky situation. After articles published in the Wall Street Journal, The New York Times and CNet Networks included insider information about HP’s management restructuring and its future business plans (including cooperation with a new chip supplier), the company allegedly began tapping both its board members and journalists to track down the leak.
Some of the spying techniques are said to have included pretexting (posing as the individual whose records one is seeking) and using software that traces the forwarding of email messages. These questionable methods have now launched an investigation about their legality. Whether or not Hewlett-Packard will face charges, its reputation has certainly received a blow—especially in the press that, unfortunately for the company, is in a powerful role of providing information to the general public.
As our class has previously concluded, the boundaries of ethical and legal do not always cross paths. While a question of ethics can draw attention to an issue, it is not always enough to hold the wrongdoers legally responsible. Like most legal battles, the HP scandal is one muddled by conflicting interpretations. In deciding to use surveillance, were the responsible HP executives risking legal consequences or simply a soiled reputation?
In the public arena, Hewlett-Packard seems to already have been burned.
“Privacy experts were dismayed that HP resorted, at best, to unethical tactics more commonly associated with shady private investigators…†reported James S. Granelli and Joseph Menn of the Los Angeles Times on September 7th.
They continue:
“The attorney general said a decision on possible charges was weeks or months away. Regardless of the outcome, he said, HP's methods were "obviously colossally stupid."
Because the legality of Hewlett-Packard’s actions is yet to be decided, its inevitable defense in this ethical battle has been one that claims its actions to have been legally approved. After all, ethics are open to question, while law is determined by written rules. At least technically.
“HP said that at the time of its investigation, its lawyers advised that pretexting "was not generally unlawful." The lawyers wouldn't say, though, that the contractor's actions "complied in all respects with applicable law," Granelli and Menn reported.
As the Clinton sex scandal famously showed, semantics can make all the difference. Just like the definition of “sexual relations†is open to interpretation, the meaning of “generally unlawful†could become a question of much debate and draw the line between psychological and financial consequences for HP.
To further complicate matters, the surveillance appears to have been originally initiated by HP’s own global investigations unit (before outside agencies became involved), implying that, regardless of ethical questions, the leak could have been investigated in a lawful manner. Ironically, it was HP’s director of ethics who originally was put in charge. It appears that the inspection of one ethical crime, a leak from a confidential board meeting, led to a much greater mess.
Damon Darlin of The New York Times reported today:
“In an e-mail message to Mr. Sonsini [HP’s outside lawyer] on June 19, Mr. Perkins [a Hewlett-Packard board member who resigned due to the handling of the investigation] asked about the legality of obtaining private phone records without a subpoena. Mr. Sonsini responded that Ms. Baskins [HP’s general counsel] had “looked into the legality of every step of the inquiry and was satisfied that it was conducted properly.â€
After reading media coverage on the issue, no-one is likely to applaud the ethics of Hewlett-Packard. Interestingly, it is matters of written law that are still open to interpretation.
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