Who May Be Spying on You ... and Why?

‘Gentlemen don’t read each other’s mail.’
—Secretary of State Henry L. Stimson, 1929

October 2006 By Denny Hatch

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From 1920 to 1933, Henry L. Stimson was secretary of state in the Hoover administration. In 1929, he closed down the State’s cryptanalytic office and his quote about gentlemen not reading each other’s mail became famous. Fortunately he changed his mind when he headed the War Department under Franklin D. Roosevelt. Had the United States not broken the Japanese code in the early years of World War II, tens of thousands of American lives would have been lost. The same is true for the Brits intercepting German radio traffic with the now-famous Enigma machines at Bletchley Park.

Down deep inside, I agree with Stimson; snooping on people gives me the creepy-crawlies.

Yet, in business and in war, it’s essential.

The Culture of Distrust
The news recently has been rife with stories of snooping by corporations, private individuals and the federal government:

* In her new memoir to be published this week, former Hewlett-Packard CEO Carly Fiorina describes her angst when private discussions with board members turned up in the media. “It is hard to convey how violated I felt,” she wrote. Subsequent to Fiorina’s firing in February 2005, leaks continued. Hewlett-Packard board Chairman Patricia Dunn allegedly contacted private detectives to find the leakers. Last week, Dunn and four others—including three outside investigators—were indicted attempting to obtain the phone records of Hewlett-Packard directors suspected of revealing confidential information to the press.

* New York State Republican candidate for attorney general, Jeanine Pirro, is being investigated for possibly hiring former New York City Police Commissioner Bernard Kerik to illegally tape conversations of her husband whom she suspected of having an affair. The brouhaha isn’t helpful to Pirro’s campaign to become New York state’s chief law enforcement officer.

* This past February, celebrity Hollywood attorney Terry Christensen was indicted for conspiring with private detective Anthony (the Pelican) Pellicano for wiretapping the conversations of billionaire MGM boss Kirk Kerkorian’s ex-wife.

* In “The Man Who Made the Twenties Roar,” a biography of the early 20th-century Andrew Mellon, which was published this week, David Cannadine describes how the enormously wealthy entrepreneur in his 40s married a woman in her early twenties. Their sensational divorce, gleefully covered in the tabloids for two years, included accounts of Mellon accusing his wife of infidelity and her countercharges that he hired private detectives and used listening devices to catch her, ultimately to no avail.

* On Dec. 16, 2005, The New York Times revealed that “months after the Sept. 11, 2001, attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States ... without the court-approved warrants ordinarily required for domestic spying, according to government officials.”

On Dec. 30, 2005, The Washington Post told of a vast new surveillance program, GST, authorized by President Bush shortly after the Sept. 11 attacks to “give the CIA enhanced ability to mine international financial records and eavesdrop on suspects anywhere in the world.” In addition, the phone records of millions of Americans are being monitored, and suspicious mail to and from overseas destinations is being opened by Homeland Security.

Government Surveillance
Recently on National Public Radio an expert on the Middle East estimated that 25 percent of the world’s Muslims—or approximately 300 million people—would like to see serious harm come to the United States and a high percentage would be willing to become martyrs in the cause.

The 1983 bombing of the Marine barracks in Beirut, the car bomb exploding in the World Trade Center garage in 1993, the 1998 bombings of American embassies in Africa, the assault on the USS Cole in 2000 and calamitous Sept. 11 tragedy all prove that these people mean business.

This is war. In World War II we lived through suspension of certain civil liberties for the duration. Put another way, if various government agencies were NOT monitoring phone records and conversations, financial transactions and questionable e-mail and snail mail, I would be worried.

Whether the Bush administration can legally ignore the 1978 Foreign Intelligence Surveillance Act (FISA) that requires court approved warrants to search the phone records of Americans is a debate for constitutional scholars and lawyers.

As of this writing, the United States hasn’t been attacked again, although the United Kingdom, Indonesia and Spain have been.

The amassing of these data by government raise at least two serious collateral concerns:

1. How secure are the data? In the Dec. 13, 2005, edition of this e-zine, “Lost Data Threatens Security,” I described how the FBI lost more than 500 laptops and had no idea whether they contained any classified data. “One of the most flagrant computer-losers seems to be the U.S. government,” wrote Philadelphia Inquirer’s Akweli Parker this past Sunday. “In response to a congressional inquiry, the Commerce Department revealed last month that it had lost 1,137 computers since 2001, most of them belonging to the Census Bureau.” I have serious doubts that government data protection systems are as tight as those of, say, TRW/Experiàn, which were described in detail in my Dec. 13 story.

2. What are the ancillary uses of the data? For example, if the CIA discovers vast amounts of money are being moved around the world by American corporations, will the IRS be alerted so that it can go on a fishing expedition? I don’t trust Big Brother.

Individuals Spying on Individuals
To secretly intercept private communications without a court-ordered warrant is illegal under § 2511 of the U.S. Code titled “Interception and disclosure of wire, oral, or electronic communications prohibited.”

The saga of Patricia Dunn’s four-count indictment is especially sad. A former director of Hewlett-Packard, she was elevated to chairman of the board following the firing of Fiorina and was very likely way over her head in terms of vision, experience and management skills. Dunn and four colleagues are accused of (1) conspiracy to commit crime; (2) fraudulent use of wire, radio or television transmissions; (3) taking copying and using computer data; and (4) using personal identifying information without authorization. According to The Wall Street Journal each charge carries a maximum penalty of three years in prison and a fine of up to $10,000. What makes Dunn’s situation poignant is that during the week of her indictment and arrest, she was scheduled to begin treatment for recurring ovarian cancer.

Like Dunn and her cohorts, Pellicano, Pirro, Kerik all may face legal problems in the future.

The Uncomfortable Dilemma: Should You Spy on Your Employees?
Some years ago, when the telemarketing industry was beginning to deal with what was—and wasn’t—legal, some telephone sales representatives complained that supervisors who listened in on their conversations were violating their privacy. This is no longer an issue today; signed agreements take care of that. For one thing, if a supervisor was to be prohibited from critiquing an employee’s performance, the company might just as well close its doors.

“In a recent survey of 840 U.S. companies by the American Management Association, 60% said they now use some type of software to monitor their employees’ incoming and outgoing e-mail, up from 47% in 2001,” wrote staff reporters for The Wall Street Journal on March 9, 2005. “Other workplace privacy experts place the current percentage even higher.”

My neighbor, who just took a job with a major brokerage company, is forbidden to use the computer on his desk for personal e-mail. We serve on a civic committee here in Philadelphia, and we cannot communicate during business hours. He can call me on the phone, but not use e-mail on his company computer.

At one publishing company I know well—which does not spend time spying on employees’ phone calls, Internet activity or e-mails—the following occurred:

* On a Saturday, the IT guy came in to update the software on all the office computers. On one computer he found an illegal program used for hacking. On another was a large cache of pornography. Both individuals, who had signed a corporate Internet and computer policy, were fired.

* A young Turk e-mailed to a blogger a blistering criticism of the ethics of a company in the business. The was posted and spread instantly around the Internet. The company in question was a large advertiser with the publisher. The kid was fired for violating his employment agreement.

The Time Wasters
According to a 2005 survey by AOL and compensation specialist Salary.com, the average American worker spends 2.09 hours per day surfing the Internet, conducting personal business on the phone, job hunting or chit-chatting in the in copier room or smoking on fire escape. This doesn’t include lunch. Missouri takes the prize as the highest goof-off state with workers blowing an average of 3.2 hours per day. Estimated total annual cost to U.S. business: $759 billion.

At the same time, in this past Sunday’s Chicago Tribune, in a story titled, “This time, it’s personal: The tricky business of private cell phone calls at work,” Patrick Kampert wrote that:

Studies show that Americans are spending more time on the job than ever. If you add in the electronic monitoring equipment of cell phones and BlackBerrys, which let employers reach out and touch workers long after 5 p.m., it’s only natural that employees need to transact some personal business during the time they are tethered to their desks.

I thank my lucky stars that I don’t run a company—or have people working for me—so I don’t have to deal with this knotty and unpleasant problem.

I’m not a lawyer or a HR expert, but following is my thinking.