The New Castle News announced today it will file a court protest against the unannounced seizure by authorities of a newsroom computer that police say was used to illegally record phone conversations with two local public officials about a proposed police training facility.
The News’ petition will ask that the city police department return the computer immediately, saying it is important to the daily production of the paper and could be subject to indiscriminate search of sensitive news files.
Sgt. Kevin Seelbaugh confiscated the computer the afternoon of July 25 after District Justice Melissa A. Amodie issued a search warrant to determine if News reporter Pat Litowitz had recorded conversations with Northwest Lawrence Regional Police Chief Jim Morris and Mahoning Township Supervisor Francis Exposito without informing them beforehand.
Morris asked Seelbaugh to seek the search warrant on the basis that a state privacy law requires both parties consent to a recorded phone conversation in Pennsylvania. Violation of the law is a third-degree felony punishable by up to seven years in prison.
Morris learned from his wife, Debbie Wachter Morris, who also is a reporter at The News, that Litowitz recorded a conversation with the chief and also with Exposito.
The phone conversations at issue concerned a story Litowitz was pursuing about a proposed police training facility in Mahoning Township. There was no contention by Chief Morris or Exposito that Litowitz had represented himself as anything other than a reporter for The News.
On July 17, Litowitz initiated a call to Morris, who was unavailable, telling him the subject of his inquiry. Morris later returned the call to Litowitz’s cell phone. Litowitz also talked with Exposito about the story.
Eventually, the story was written by News reporter Nancy Lowry, who also had gathered information about the police training facility. Litowitz played the recorded calls with Chief Morris and Exposito for Lowry so she could use the information in her story.
Lowry said she mentioned the recorded conversations to Wachter Morris, who then told her husband. That’s when Chief Morris contacted New Castle police and the computer was seized, along with several recording devices belonging to Litowitz, during an unannounced visit to the newsroom by Seelbaugh.
News publisher Max Thomson said he did not protest the search and seizure at the time because he considered the matter “largely an internal office misunderstanding that could be worked out. Those efforts have failed and the district attorney, for whatever reason, has decided to pursue the case.”
Chief Morris declined to say why he pursued the case against Litowitz and whether he considered their conversation to be off the record.
His wife said that he previously had asked her to inform him if she ever learned that he had been recorded without his knowledge. She said she and her husband had discussed the legality of taping phone conversations, and that she found a law regarding the practice about a year ago.
“When I became aware that it was not a legal thing to do, I brought it to my supervisor’s (News managing editor Tim Kolodziej) attention that someone in the newsroom was doing it,” Wachter Morris said.
“I gave him (Kolodziej) a copy of the law I got from the Internet and told him if someone in the newsroom was violating it, I felt it should stop, and that if anyone found out about it, we could be in trouble,” she said.
“When I brought the matter to Tim’s attention after he had read the law, he advised the person in front of me (Litowitz) not to do it any more unless he asked permission first.”
Wachter Morris added that she does not believe a conflict of interest existed between her job as a news reporter and the fact that she reported an internal newsroom issue to a law enforcement authority, in this case her police chief husband.
“I felt an obligation to both,” she said. “I felt if my husband was the victim of an alleged crime, and I was seeing it happen, I felt obligated to bring it to the attention of my employer and my husband as the victim.”
Litowitz said he recorded the conversations with Chief Morris and Exposito to assure the accuracy of the conversations and to get the details of the story correct. He said he didn’t consider that an illegal practice.
“When I introduce myself as a representative of the New Castle News, there is no expectation of privacy,” he said. “That has already been determined by the state courts.”
Litowitz added, “I tape interviews to ensure the highest accuracy of my articles. I want to make sure I am providing the readers with the best information possible. Recording also allows me to focus on the topic at hand and interact with the person I am interviewing. Written notes impede that process.”
He added that he does few interviews by phone, preferring to meet people in person. These interviews also are taped, he said.
Reporter Lowry said she did not consider the taped interviews to be ethically wrong.
“Everybody who talks to a reporter knows that the reporter isn’t talking just to be friendly,” she said. “They are talking to gain information. Jim (Morris) knew he was talking to a reporter about a story.”
Lowry added she did not use any of the recorded interviews in her story.
James Manolis, the newspaper’s attorney in the case, said there is some legal precedent that implies the state law requiring two-party consent to a recorded phone conversation is overly broad and doesn’t always apply to journalists.
“Part of our argument (to reclaim the computer) is going to be that this statute may not be constitutional in and of itself, and what Mr. Litowitz is alleged to have done may not even constitute a crime under Pennsylvania law,” Manolis said.
“And if it doesn’t, then the seizure of this computer and the retention of this computer is something that is not necessary or lawful.”
Publisher Thomson also doubted a crime was committed.
“Even if the phone conversation was taped, any public official speaking with a reporter has no reasonable expectation of privacy,” he said. “Beyond that, we are confident that case law holds this particular statute to be so overly broad that it is unenforceable.”
Furthermore, Thomson said, “the seizure of the computer represents a dangerous intrusion by police to some very profoundly held First Amendment issues. There is a large amount of information on the equipment seized that we don’t want police officials to be rummaging indiscriminately through.
“Obviously, the intent of the law is to protect the privacy of private citizens and not the phone conversations of public officials with news reporters,” Thomson said. He also said courts have ruled two-party consent laws to be invalid in cases involving journalists and public officials.
Thomson noted that Litowitz has worked on several important stories that have led to state investigations into the former county treasurer and the now-defunct agency, Affordable Housing of Lawrence County.
Thomson said the obvious intent of the two-party consent law “is to protect the privacy of private citizens and not the phone conversations of public officials with news reporters.”
District Attorney John Bongivengo disagreed with Manolis and Thomson that case law invalidates Pennsylvania’s privacy act when it comes to phone conversations between news reporters and public officials.
“There’s a limited expectation of privacy when talking to a reporter,” Bongivengo said. “In this situation ... the person he (Chief Morris) spoke to is not the actual person who wrote the story. There are other facts involved in this case and to me, whether there’s a reasonable expectation of privacy or not, is essentially a jury question.”
Manolis said there was no reason for the case to go as far as it has.
“It seems to me the primary reason that ... this investigation is being conducted by the commonwealth is because of a conflict between two reporters and the marital relationship between one of those reporters with a member of law enforcement.”
Thomson said the whole thing “amounts to a monumental waste of investigative and judicial time.”