Angry prosecutors target privacy loophole

Pa. law allows easy access to their e-mail and cell-phone records. They called for a tighter law.

By Joseph Tanfani / Inquirer Staff Writer

Posted on Thu, Jul. 17, 2008

Pennsylvania’s prosecutors, saying the public’s privacy rights are threatened, will ask state lawmakers to close a legal loophole that allows open access to cell-phone and e-mail records.

District attorneys were “shocked” to discover that state law allows lawyers to obtain cell-phone records on behalf of clients through a simple subpoena without court review, said Carbon County District Attorney Gary Dobias, president of the state District Attorneys Association.

The association, meeting in Erie, voted this week to lobby legislators for a change in the law.

The issue became public this week when The Inquirer reported that defense attorneys, searching for the source of grand-jury leaks, legally obtained the cell-phone records of two Dauphin County prosecutors and two state police detectives.

“That’s a privacy concern that not only affects district attorneys, but general citizens as well,” Dobias said. “These are records that should not be released.”

Police officers and prosecutors say disclosure of their calling records is dangerous. Criminals might use them to identity confidential informants, they say.

For the public, prosecutors say, the phone records could be abused in “infinite” ways: Victims of domestic violence could be targeted by their partners. Witnesses in criminal cases could be hunted down.

Even legislators might have their e-mail and phone calls searched by the opposition if the right kind of case were filed in any county courthouse, Montgomery County District Attorney Risa Vetri Ferman said.

“This should send a chill down any citizen’s spine,” she said. “People in Pennsylvania deserve to be protected from this kind of abuse.”

The issue surfaced during the legal battle between Dauphin County prosecutors and Louis A. DeNaples, a Scranton businessman and owner of the Mount Airy Resort casino in the Poconos.

A grand jury in Harrisburg indicted DeNaples and a friend, Roman Catholic priest Joseph Sica, on perjury charges. They are accused of lying about their associations with organized-crime figures during hearings on whether DeNaples deserved a casino license.

Their lawyers are pushing for an investigation of their own, seeking to determine who leaked secret information about the DeNaples probe from the grand jury.

Sprint-Nextel last month turned over calling records for two state police detectives assigned to an organized-crime unit and Dauphin County’s top two prosecutors, District Attorney Edward M. Marsico Jr. and top deputy Francis Chardo.

Scranton lawyer Sal Cognetti Jr., representing Sica, had given the company a subpoena for the records - without informing Marsico or the state police.

Prosecutors were livid, then surprised when they learned that Cognetti was under no legal obligation to tell anyone.

“It never came up before,” Ferman said. “It was a loophole that no one was aware of.”

The state’s wiretapping and surveillance law says any communications provider may disclose records of any customers to any person except members of law enforcement, who must secure a warrant for such information.

Federal rules also apply, according to experts in privacy law.

Phone companies are not supposed to provide a customer’s calling records to anyone else without a subpoena, a court order, or a customer’s permission.

In civil cases, attorneys seeking phone records must inform their adversaries in advance to give them a chance to contest the matter in court.

Not so in criminal cases in Pennsylvania; lawyers don’t have to inform the judge or the person whose records they’re seeking. Cognetti, Sica’s lawyer, took advantage of that quirk.

Dobias said he wasn’t sure exactly how the law should be changed. At the least, there should be notification of customers before records are turned over, he said.

Cognetti did not respond to a request for comment.

Sprint said it was under no obligation to tell customers when their records were turned over, according to lawyers in the case.

“That sounds insane,” said John Verdi of the Electronic Privacy Information Center, a Washington advocacy group.

“Notification is the bare minimum required to protect privacy,” he said. If a provider is turning over the information without telling customers, “that’s a fundamental breakdown in the relationship.”