BANGOR, Maine — A Maine Supreme Court judge has called into question the practices of a cellphone service company that released more than 50,000 text messages to a Waterville attorney in a divorce case in which a protection from abuse order had been issued.
Justice Donald Alexander requested that counsel for the Maine Board of Overseers of the Bar, which handles complaints against attorneys, notify the Maine Attorney General’s Office and the U.S. Attorney’s Office about the practices of U.S. Cellular.
Efforts to reach J. Scott Davis, counsel for the board, were unsuccessful Wednesday. U.S. Cellular did not respond to an email message seeking comment.
Timothy Feeley, spokesman for the attorney general’s office, said Wednesday in an email that Alexander’s decision has been received and read. He said that it appeared to be the first time an attorney general has received information about wrongdoing in an action originating with the Board of Overseers.
“We have no knowledge of the facts beyond what is described in the written decision,” Feeley said. “We have no reason to disagree with the justice’s assessment of the law. We will confer with U.S. Cellular’s legal counsel and with the U.S. Attorney to assess the company’s practices and to make sure they are aware of the legal implications.”
U.S. Attorney Thomas E. Delahanty II declined Wednesday in an email to comment “on the practices described in the court’s decision or what action we may take, if any. However, in any instance where it it is brought to our attention that federal laws have been violated, we have the authority to refer the matter to an investigative agency that has jurisdiction and to take other appropriate action.”
Alexander last week ordered that Charles T. Ferris be suspended from practicing law for six months, effective March 3. Ferris represented the husband in the divorce case in 2010 and 2011. The couple each had separate cellphone accounts since 2009.
It was in his 36-page suspension order, made public Monday, the justice issued a strong rebuke of the cellphone service company’s practices in civil matters. The text messages included private communications between a health care provider and the client’s estranged wife and her messages to and from the man she married after the divorce was final.
“That U.S. Cellular would voluntarily provide to Ferris and [his client] copies of text messages containing sensitive and privileged material appears extraordinary in light of the ongoing debate about the propriety of government agencies, supported by court orders, reviewing cell phone call logs that do not even include the actual text of messages such as were freely provided in response to the subpoenas here,” Alexander wrote.
“Likewise, it appears strange that U.S. Cellular, or any electronic communication provider, would work directly with a person subject to a no contact provision in a protection from abuse order or a person who was subject to a criminal investigation, to facilitate that person’s access to the cell phone records and text messages of a court order protected person or a potential criminal case witness,” he said.
The judge said that U.S. Cellular violated the Stored Communications Act, a federal law. Alexander wrote the act “included no exception for authorizing text message content disclosure based on a civil discovery subpoena.”
Alexander criticized the cellphone service company for handing over the text messages to Ferris, and in at least one instance, his client, in a divorce action without questioning the need for the information or whether a protection from abuse order had been issued.
The judge cited federal law that says the content of text messages cannot be released except for law enforcement purposes without the consent of the sender or recipient. To obtain the content of text messages, law enforcement must, in most cases, get a search warrant and present it to the cellphone service provider.
“The Stored Communications Act includes no exception authorizing text message content disclosure based on a civil discovery subpoena,” but does not allow subscribers whose content is disclosed to do much more than change providers, Alexander wrote.
The judge said that the law does not allow subscribers to sue their providers for damages if message content is released illegally as he said it was to Ferris and his client.
“In effect, cell phone providers are prohibited from giving out protected information in response to a subpoena, but they are protected from any recourse if they violate the law,” the judge said.
Zachary Heiden, legal director of the American Civil Liberties Union of Maine, said that the facts outlined in Alexander’s decision should prompt changes in privacy laws.
“Most of us assume that our private emails and text messages about personal matters — family, work, medical care — are going to remain private,” he said. “That is too often not the case, and when our privacy is violated we often have nowhere to turn.
“We should all be shocked at how easy it was for someone to gain access to thousands of personal private messages,” Heiden continued. “And before the shock wears off, we should commit to pressuring our senators and representatives to do something about it.”