Prosecutors Look to Close 'Chasm' in Wiretap Law
By Peter Hall and Amaris Elliott-Engel
Of the Law Weekly
peter.hall@incisivemedia.com
Designed to address what one prosecutor described as a gaping chasm in Pennsylvania's Wiretap Act -- used recently by a defense attorney to get the cell phone records of police and prosecutors -- a proposed amendment to the law has broad support from law enforcement, victims' advocates and civil liberties groups alike.
Under Pennsylvania's Wiretap Act, law enforcement must obtain warrants or court orders to receive telephone records. But in a little-known section of the law, the defense side of a criminal matter is able to directly subpoena the personal phone records of both private citizens and public officials from their telecommunications providers without obtaining court approval first.
The loophole came to light when The Philadelphia Inquirer reported that Sprint Nextel had provided prosecutors' and state police officers' cell phone records to a defense lawyer representing Joseph Sica, a Scranton-area priest embroiled in an investigation into alleged mob ties with Pennsylvania's fledgling casino industry.
Sica is charged with committing perjury during Pennsylvania Gaming Control Board hearings on the slot machine license application for the Mount Airy Casino Resort, which is owned by Sica's friend Louis DeNaples. Both have been charged with perjury for allegedly lying during the license hearings about their association with organized crime.
State Rep. Mike Vereb, R-Montgomery, announced legislation to reform the Wiretap Act at a news conference July 24 where Montgomery County District Attorney Risa Vetri Ferman said the gap in the bill's privacy protection is more than a mere loophole.
"I would suggest that it's like the Grand Canyon," she said.
Vereb's bill would require judicial review of any request to access communication records. Unless the records are requested as part of an ongoing criminal investigation, the legislation would also require the telecommunication provider to notify the subscriber of the request and would give the subscriber an opportunity to oppose the release.
"There is no legal reason a citizen should be able to access a fellow Pennsylvanian's telephone records," Vereb said in a telephone interview last week.
Vereb once worked as regional fraud prevention manager for Comcast when it had cellular service and helped draft a policy requiring a court order before Comcast would release call records.
Dauphin County First Assistant District Attorney Fran Chardo said the provision granting no-questions-asked access to telephone records likely has roots in the original 1978 version of the Wiretap Act. In the plain language of the act, there is no presumption of privacy for telephone records, Chardo said.
"The phone company knows about it. The person you call knows about it," he said.
As the law is written, a law-enforcement agency's request for an order to obtain telecommunication records must be based on reasonable and articulable grounds. For a non-law enforcement request, there is no threshold, he said.
In May, the state Supreme Court granted DeNaples and Sica hearings into alleged leaks from the grand jury proceedings and ordered Dauphin Common Pleas Court Judge Todd A. Hoover to appoint a special prosecutor to pursue the allegations and to report back to the Supreme Court.
DeNaples' attorney, Richard A. Sprague, and Cognetti had sought to directly subpoena the telephone records from law enforcement, but Hoover overruled that effort.
When Cognetti requested the information directly, Sprint Nextel turned over Chardo's phone records in addition to those of Dauphin County District Attorney Edward M. Marisco Jr. and two state police detectives. Notice to the law enforcement officials whose records were subpoenaed was not required under the law.
"I don't know how it came about that anyone can make a request for phone records without making a showing of need, but it's definitely an area from a privacy perspective that needs to be fixed," Chardo said.
In a statement released at Vereb's news conference, Sprint Nextel said: "We are reviewing our procedures to ensure that customer records sought through a subpoena or court order are afforded every available protection. As part of this review, and effective immediately, Sprint Nextel is modifying its procedure ... If Sprint Nextel receives a subpoena from a defense attorney in a criminal matter in Pennsylvania, we will return the records to the court of proper jurisdiction."
Ferman had urged law enforcement agencies in Montgomery County, which mostly use Sprint Nextel for their telephone service, to switch providers if the company didn't change its policy. Other telecommunication companies providing service locally already have policies in place against turning over records without a court order, Ferman said.
The Pennsylvania District Attorneys Association supports the bill, not only because the current Wiretap Act provision has the potential to jeopardize criminal investigations, but because it poses a threat to individual privacy and safety.
"We agree with the victims' rights groups that particularly in a domestic violence situation the release of this kind of information may jeopardize the safety of that victim," said Carbon County District Attorney Gary Dobias, who is president of the association.
Nicole Lindemyer, policy manager for the Pennsylvania Coalition Against Domestic Violence, said the open availability of telephone records and other personal information poses a major threat to victims of abuse. In a number of cases around the nation, stalkers and abusers have used publicly available information to track down and murder women.
"For domestic violence victims, this is about safety and lethality," Lindemyer said. "Those victims who are running from the guys who are going to the ends of the earth to find them ... are the most likely to be killed."
Lindemyer said the coalition is advocating the inclusion of language in Vereb's bill that would bar the release of records when disclosure would increase the likelihood of physical harm to the telecommunications subscriber.
Mary Catherine Roper, staff attorney for the American Civil Liberties Union of Pennsylvania, said individuals have a fundamental right to be notified when businesses or the government disclose personal information.
"Quite clearly most people would be shocked that any attorney in a case can send off a subpoena to the telephone company and the other side gets notice -- and they don't -- that their telephone records are being requested," Roper said.
"Just as a general proposition, if my personal information is going out there, I'm the first person you should tell about it; not the last one," she said.
Roper said she was unable to take a position on the criminal procedural aspects of the bill because she has not seen it.
Royce Morris, president of the Pennsylvania Association of Criminal Defense Lawyers, said there was nothing out of line about Cognetti's action.
"He's being a zealous advocate. A clever lawyer is going to be just that, clever, and obtain evidence that helps his client, whatever position that might be," Morris said. "At the time it was done, it was within the bounds of the law and a zealous advocate is going to do whatever he can within the bounds of the law."
Morris said the proposed amendment to the Wiretap Act is reasonable as long as it is balanced. Both prosecutors and defense counsel should be on equal footing, he said.
"A lot of time when we're gathering evidence to defend a client, we want to be sure that it's an ex parte order," Morris said. "As long as we're still allowed to go into court and get those records, I'm sure that it's something we're willing to take a look at."
Vereb said the bill, which had yet to be formally introduced early last week, has 103 cosponsors in the house. State Sen. John C. Rafferty, R-Montgomery, plans to introduce a companion bill in the Senate. Rafferty said he hopes to ensure swift passage during a truncated fall session by casting Vereb's legislation as an amendment to a bill to renew the Wiretap Act. Both houses of the General Assembly have promised not to return to session after the general election in November.
"It's an important enough matter that we would want to get it approved before the session ends," Rafferty said. •
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