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Private judges Amanda Bronstad’s article ” ‘Private judges’ alter legal landscape” [NLJ, April 10] cites to the “speed” of private judges, but that is an illusion. In a case I handled last year, the parties completed all trial testimony, made final arguments and submitted all proposals for the statement of decision to our private judge last October, but six months later, we still have no decision. In California, the state constitution requires that the paycheck be held for every judge who has had a matter submitted for decision more than 90 days, but a private judge is not covered. Meanwhile, my client waits impatiently for a decision, and although I wrote a complaint letter to the judge, there is nothing I can do to generate a decision for her in a timely fashion. William R. Warhurst Redwood City, Calif. Cellphone records The recent article on buying cellphone records over the Internet, “ Who surfs for cell records? Lawyers” [NLJ, Feb. 6], suggests that the legality of obtaining these records is in a “gray area” of the law. To the contrary, telephone records are protected by federal law. See 47 U.S.C. 222. The most common way these records are obtained for sale is by “pretexting”-posing as a customer in order to obtain that person’s sensitive personal information. There is nothing remotely gray about lying to common carriers to trick them into handing over consumers’ phone records and then selling those records to third parties. This practice violates federal and state law prohibiting deceptive trade practices, as well as a variety of criminal statutes. See, e.g., 15 U.S.C. 45(a); 18 U.S.C. 1343. In addition, it is hard to imagine how this practice would not run afoul of various ethics rules for attorneys. See, e.g., American Bar Association model rules 4.1 and 8.4. On several occasions, the Federal Trade Commission has brought cases alleging that pretexting is both deceptive and unfair in violation of Section 5 of the FTC Act. For example, in 1999, the FTC sued a company called Touch Tone Information Inc. According to the Commission’s complaint, Touch Tone’s employees or agents impersonated bank customers in order to obtain their private account information. The FTC alleged that it was deceptive to mislead the bank to obtain the information and unfair to sell it without the consumers’ consent. Later that year, Congress outlawed this practice by passing the Gramm-Leach-Bliley Act (GLB Act), making it both a civil and criminal violation to pretext financial information. Although the GLB Act does not specifically apply to phone records, pretexting remains an unfair and deceptive practice that violates the FTC Act and state law. It is important that attorneys who are in the market for consumers’ cellphone records not fool themselves into thinking that pretexting is legal. Joel Winston Washington The writer is associate director of the Division of Privacy and Identity Protection at the Federal Trade Commission. The CFC and charities Vivian Berger’s claim that not-for-profit groups “won” a challenge to post-Sept. 11, 2001, blacklisting requirements is based on a highly selective presentation of the facts. “ Big victory for charities” [NLJ, Jan. 16]. As Berger notes, in 2004, the Combined Federal Campaign (CFC), a charitable giving program for federal employees, required participating charities to certify that they would not knowingly hire or support individuals or entities cited on terrorist watch lists. But she neglects to explain that the 2006 CFC rules, which were revised in response to a lawsuit organized by the American Civil Liberties Union, still require charities to pledge compliance with federal blacklisting laws, which the ACLU, among many other advocacy groups, has agreed to do. In order to participate in the CFC, charities must certify that they are “in compliance with all statutes, Executive orders, and regulations restricting or prohibiting U.S. persons from engaging in transactions and dealings with countries, entities, or individuals subject to economic sanctions administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control.” They must acknowledge their awareness of “a list of countries subject to such sanctions, a list of Specially Designated Nationals and Blocked Persons subject to such sanctions, and overviews and guidelines for each such sanctions program.” They must also promise to notify the CFC immediately “of any change in circumstances pertaining to this certification at any time.” It’s true, as Berger stresses, that the CFC has dropped an express requirement that charities check the blacklists (although they are expressly encouraged to do so). But this concession does not relieve charities of the obligation to engage in blacklisting or the requirement that they affirmatively promise to engage in blacklisting to participate in the CFC. Post-9/11 blacklist requirements are imposed independently by federal law and were not challenged by the ACLU-led lawsuit against the CFC. Wendy Kaminer Boston

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