Extent of Mendte's snooping made tabloid tidbits a federal case

The feds were wary. The proposed investigation had a tabloid taste.

It was early spring, and Paul Rosen, a lawyer for the disgraced former CBS3 anchor Alycia Lane, had just approached the FBI with sensational suspicions that someone at the station had hacked her e-mail.

The alleged victim, poised to sue CBS3, was hardly sympathetic and was alleging only a handful of computer intrusions, people close to the investigation said. To complicate matters, the FBI's prime suspect soon became Lane's former coanchor, Larry Mendte.

The federal officials involved faced a question that critics, including former prosecutors, were also sure to raise: In a post-9/11 era, should the FBI spend time and resources investigating what might be a private spat between highly paid, possibly spoiled, TV celebrities?

Yet as the investigation unfolded over 90 days, sources said, officials became convinced that the audacity, deviousness and scope of Mendte's alleged intrusions did warrant a felony charge of computer intrusion.

The charge, announced Monday, was brought after Mendte agreed to cooperate with prosecutors and waive his right to indictment by grand jury. He was charged in a criminal information, not an indictment, which means he is likely to plead guilty when he appears in federal court on Aug. 22. Mendte, 51, faces a zero- to six-month term under sentencing guidelines.

After federal officials conducted an initial investigation, reviewing Mendte's phone and Internet records without his knowledge, they gained enough probable cause to obtain a search warrant for the anchor's home and work computers.

FBI agents discovered that Mendte's alleged hacking was far more extensive than first suspected - at least 500 times in four months. Officials say he began reading Lane's e-mail in 2006, but cannot access evidence of it before this January. To prosecutors, the sheer volume showed that Mendte's actions were not isolated, but systematic.

Officials were also troubled by the manner in which Mendte allegedly obtained Lane's passwords. Sources say he secretly installed on her computer a keylogger device - an inch-long device that records every keystroke, revealing passwords.

Making matters worse, Mendte allegedly didn't just snoop. According to Monday's court filing, he repeatedly leaked the information he found to Dan Gross, a gossip columnist for the Philadelphia Daily News.

In addition, the content of the e-mails Mendte allegedly gave Gross appeared to particularly upset federal officials. It wasn't just gossip, but sensitive attorney-client information - discussions between Lane and her lawyers about civil and criminal cases, according to the court filing.

At Monday's news conference, acting U.S. Attorney Laurie Magid referred to that fact four times in the first four minutes of her remarks.

"This case went well beyond the mere reading of private information," Magid said. "This case is about much more than just taking a peek or two at a colleague's e-mail."

In making a decision to bring charges, prosecutors can also weigh the possible deterrent effect the charges may have on the public. This case, with its high-profile defendant and victim, appeared likely to receive high-profile publicity. "This kind of case is an opportunity for us to urge people to protect their password," Magid said.

During the news conference, officials also made an apparent nod to the public debate over whether they should have prosecuted the Mendte case.

"If we were talking about Mr. Mendte tapping into another person's telephone and listening to those protected and privileged conversations, the violation would be obvious," said Janice K. Fedarcyk, FBI special agent in charge.

"If we were talking about Mr. Mendte reaching into someone's mailbox and taking out an envelope that contained personal photographs and thumbing through all the images," she added, "no one would question his being charged with a crime."

Mendte's lawyer, Michael A. Schwartz of the Pepper Hamilton firm, has said that his client had cooperated with authorities. He declined to comment further.

Lane's lawyer, Rosen of the Spector, Gadon & Rosen law firm, declined to talk about his discussions with the FBI.

In interviews yesterday, several prominent Philadelphia defense lawyers disagreed over whether federal prosecutors should have brought the case against Mendte.

"Initially, it troubled me that this was a federal criminal case, but I didn't have an appreciation for the number of times he accessed her e-mail account," said Catherine M. Recker, a partner in the Philadelphia criminal-defense law firm Welsh & Recker. "The compulsive accessing and the sheer number of times makes this seem more . . . worthy of prosecution.

"I just don't think it's your everyday kind of case."

She said she agreed with the assessment offered by federal officials: "What he has done is really analogous to a phone tap."

But Richard L. Scheff, a former federal prosecutor now with the law firm of Montgomery, McCracken, Walker & Rhoads, said the matter should have been handled by local authorities.

He did not dispute that the conduct was wrong, but "with all the other things going on in the world from terrorism to drugs to serious fraud cases, it's hard to understand what the federal interest is."

He also doubted it would be a deterrent.

"The reality is that your computer is not your personal safe haven if you're doing it at the office," said Scheff. "I don't think this is going to have a deterrent effect at all. If people are going to snoop, they're going to snoop."

According to sources close to the case, former CBS anchor Larry Mendte used a hardware keylogger system to obtain Alycia Lane's e-mail passwords.

Keylogger systems secretly capture every keystroke made on a targeted computer. Keyloggers come in two forms: software, which is installed on a computer, and hardware, which is a battery-sized recording device that is secretly attached to the cord between the keyboard and a computer.

The precise type and brand of keylogger used in the Mendte case could not be determined, but sources said it was the hardware version.

"It's a very slick device," said Louis Cinquanto of Cornerstone Legal Consultants in Philadelphia, which advises defense lawyers in computer-related trials. "Most antipiracy software and virus scanners can't detect them."

Once installed, hardware keyloggers, which range in cost from about $30 to as much as $300, can record up to 2 million keystrokes, Cinquanto said.

"When you're ready, you unplug it and plug it into your computer," he said. "And then you are looking basically at an entire archive of what a person was typing. Some of them have menus that ask: What do you want to review? Chats? Passwords?"

The FBI uses keyloggers, too, perhaps most famously in New Jersey in a late-1990s case against Nicodemo S. Scarfo, son of imprisoned mob boss Nicodemo "Little Nicky" Scarfo.

- John Shiffman