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The sale of cell phone records over the Internet – a hot topic that recently spurred litigation, legislation and a federal investigation – has more than a few lawyers nervous. Attorneys are among the top customers of the controversial Web sites, according to private investigators, privacy advocates and Web site operators who sell the phone records. “Let’s put it this way, the legal profession is keeping it alive,” said Rob Douglas, a former private eye turned security consultant who has helped the Federal Trade Commission investigate and prosecute online operators that sell phone records. “I’ve investigated them with the federal government and in private lawsuits . . . and in every single case, the overwhelming majority of users of these companies are attorneys,” Douglas said. These attorneys include divorce lawyers, who want to know who feuding spouses are talking to; business lawyers, who want to know who their clients’ competitors are talking to; and employment lawyers, who want to know if employees are selling any trade secrets. The online data industry has come under intense scrutiny in recent months, triggering private lawsuits and federal and state investigations. In the last two weeks, four wireless carriers – Cingular, Verizon, Sprint Nextel and T-Mobile – have filed lawsuits against Web site operators for allegedly using trickery to obtain customers’ phone records. State attorneys general in Illinois and Missouri filed similar lawsuits against rogue Internet operators in January, while Texas said it was investigating such Web sites. The FTC is investigating 40 Web sites that were named defendants in a complaint filed by the Electronic Privacy Information Center, a Washington nonprofit privacy advocacy group. And on Capitol Hill, three lawmakers in recent weeks introduced bills to outlaw the sale of phone lists. The U.S. House Energy and Commerce Committee held a hearing last week to determine how widespread the problem of cell phone data theft is, and whether or not the cell phone industry is doing enough to protect customers’ records from data burglars. Given all the controversy surrounding the sale of cell phone records, attorneys were reluctant to comment on the subject. Of the more than a dozen divorce, business and criminal defense attorneys contacted for this story, none said they used the tactic. Most wouldn’t even talk about the subject. One lawyer said, “Good luck finding anyone to admit to it.” Attorney Paul Murphy, a business litigator with Murphy Rosen & Cohen in Santa Monica, Calif., said he has sometimes used people-finder Web sites for as little as $10 a search to help locate potential witnesses involved in business disputes. But he never tried to get cell phone records, he said, adding that he was unaware that such Web sites even existed until about a month ago. “The interesting thing now is that other lawyers are being made aware of this,” Murphy said, noting that some attorneys might now be tempted to try it. “It can be a very valuable tool to try to get information to see who is calling people . . . but it does concern me that this could violate people’s privacy.” Jay Patel, manager of www.abika.com, one of the 40 Web sites named in the FTC complaint, defended the sale of cell phone records over the Internet, calling it a legitimate business tool for the legal profession and law enforcement. “Many of the searches are used by lawyers, private investigators, bail bond agents, law enforcement and even some government agencies use the searches. Many people who have been victim[s] of fraud use the searches,” Patel said. “There have been many cases where searches have helped people prove they’re innocent or save themselves from harm.” Patel, however, recently stopped selling cell phone records, saying “after the media coverage there was such a huge demand for these searches that anybody and everybody started requesting it. This made it hard to vet the ones with a legitimate need or not . . . To tell you the truth, many people started practically begging for it.” Another Web site named in the FTC complaint, www.locatecell.com, also recently stopped providing cell phone searches, but only on customers of Cingular Wireless, T-Mobile and Verizon, which, along with the states of Illinois and Missouri, are suing the site’s owners over the sale of phone records. A lawyer representing the operators of locatecell.com, Philip L. Schwartz of the Law Offices of P.L. Schwartz in Boca Raton, Fla., did not return calls seeking comment. Meanwhile, several lawyers and privacy experts argue that the law is gray in the area of cell phone privacy, noting that there is no statute on the books that criminalizes getting or selling phone records. “Are cell phone records private? We probably all assumed that they were, but the answer is probably to the contrary. We probably have some privacy interest but it’s not protected by common law or statute,” said Harold J. Krent, dean of the Chicago-Kent College of Law. Krent noted that given the vagueness of the law, attorneys who obtain cell phone records via the Internet are not doing anything illegal or unethical. Washington attorney Frank Morris, with Epstein Becker & Green, who advises companies on privacy matters, noted that the “problem right now is that there are no rules.” Morris said he has never tried to get cell phone records via the Internet, but has heard of other lawyers doing it. “There does seem to be a lot of smoke around it.” This article originally appeared in the National Law Journal , a publication of ALM.

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