HP's E-Mail Tracer Plan Pushes Ethical, Legal Envelope

More commonly used by spammers than corporate investigators, use of e-mail tracers, commonly known as Web bugs, is serious enough for federal investigators to seek court approval before employing one.
Hurd has said he knew about the plan to send false e-mails to a journalist, and he approved of it. However, he says he doesn't recall seeing or approving the use of tracer technology.

Trolling Some Murky Waters

While it's not clear why the ruse didn't work, it is clear that HP was treading in some ethical and legal gray areas.

"If this kind of thing happens without the user's's a sneaky thing," says Shipp. "Legally, it's a very gray area. Ethically, the reason you're doing it is to get information, and you haven't gotten the person's permission to do that. Nowadays people accept it's not a good thing to do."

Scott Christie, who formerly headed up the computer hacking and intellectual property section of the U.S. Attorney's Office in Newark, N.J., says using an e-mail tracer or Web bug is serious enough for government investigators to seek court approval before they head down that road.

"Arguably, you are conducting a remote search of the user's computer by virtue of causing an involuntary transfer of information back to you," says Christie, who now heads up the information technology practice group at McCarter & English, a New Jersey-based law firm. But Christie says some in the government argue that since actual e-mail content isn't being intercepted, a lesser court order would suffice. Regardless of whether it calls for a full-blown search warrant or a court order, Christie says the feds seek court approval before unleashing a Web bug.

"The Web bug does a search on the recipient's computer," says Christie. "Is it a search because it divulges the IP address? Some might argue yes. You are invading the computer to gather information about the user of the computer and the computer itself."

Investigators outside the government aren't bound by the Fourth Amendment, which calls for obtaining search warrants. But the fact that federal investigators seek court approval testifies to the seriousness of the tool, says Christie.

Using e-mail tracers isn't something he says he ever saw in a corporate setting.

"To hear that in a corporate context these were used without court oversight or approval is troubling" says Christie. "It's a rather aggressive technique."

But does it break any laws?

Christie says it comes close to being an unlawful intercept of electronic communications, which would be a violation of the wiretap act. It also skirts around breaching privacy laws. But he says he doesn't think there are any federal laws specifically targeting tracers or Web bugs.

California law, though, could be a whole other ball game.

The state of California, where much of the HP investigation took place, has tougher privacy and computer fraud laws than most other states, according to Christie. That would fall under the purview of the state Attorney General's Office, which is investigating the HP media leak scandal. Tom Dresslar, spokesman for California Attorney General Bill Lockyer, said in an interview last week that he couldn't say if they were looking into HP's use of e-mail tracers.

"It certainly is a shade of gray," says van Wyk. "If they sent something to a reporter and an attachment runs without the reporter's knowledge or permission, then I think the gray just got a hell of a lot darker."

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