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Dumpy Senate clears pretexting bill after show trial

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Silicon Justice The most lackadaisical US Congress in modern history actually got off its keister and passed some legislation before it waddled off last week.

No, it didn't fulfill its most important constitutional duty by passing a national budget. And no, it didn't threaten lawsuits like EFF v. ATT by retroactively approving the government's warrantless wiretapping program - although we can all agree that's a good thing.

Instead, during an uncharacteristic last-minute flurry of doing the people's business, the laziest modern Congress chose to tackle a different hot-button issue: pretexting. Not surprisingly, the effort was half-assed. It was really only the Senate that took any action, and not much action at that by passing a pretexting bill. The House passed an identical bill in April - before the HP scandal broke and before Congressional inquiries dragged sweating HP executives and lawyers under the hot lights.

After all the intense questions and finger-wagging of the inquiries, the Senate tacitly admitted that the hearings were merely expensive photo ops to make Congress look like it was actually doing something. Absolutely nothing of substance made its way from the hearings into the bill, since the text has been untouched since April.

If we felt like giving the Senate the benefit of the doubt, we would attribute their rubber-stamping of the House bill to a desire to avoid eleventh-hour bicameral negotiations over the bill's provisions. All past indicators, however, point to the fact that it was simply the easiest thing to do.

The bill imposes a statutory maximum prison term of 10 years and/or fines of $250,000 for individuals, or $500,000 for corporations, that fraudulently obtain telephone records or calling patterns. Now that it has cleared the Senate, it goes to President George "Vetoes Scare Me" Bush for approval.

Telephone records are the only type of information covered by the new bill. Other types of information - except for personal financial data, which is covered by a different federal statute - remain up for pretextual grabs under federal law.

The bill preempts similar legislation passed in California recently, and will actually offer consumers in that state a greater level of protection than they would have enjoyed under the new state law. The California bill had the MPAA'a fingerprints all over it, and was also restricted to telephone records in its scope. In California's bill, however, The MPAA successfully restricted penalties to a paltry year in the slammer and a maximum fine of $10,000. The federal version packs over ten times the punishment, giving it a little more strength as a deterrent.

So the 109th Congress actually gave consumers a parting gift on its way out. Sure, it was a re-gift with almost no thought put into it . . . but with this bunch, we've learned to take the good whenever we can get it. ®

Kevin Fayle is an attorney, web editor and writer in San Francisco. He keeps a close eye on IP and International Law issues.

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