Phone firm: It'll take week to see if lost 911 data can be recovered

Verizon said yesterday it would be at least a week before data recovery experts can tell if the Massachusetts State Police will be able to retrieve about 1 million missing 911 recordings.

The recordings of nearly a year's worth of cellular 911 calls and radio transmissions were lost after a Verizon subcontractor upgraded the emergency system at Massachusetts State Police headquarters last Tuesday. Both Verizon and the state's public safety office say they cannot estimate the chances of recovery.

``The best term to use is that the data is inaccessible," said Verizon spokesman John Bonomo . ``I don't want to say that it's erased. I don't want to say that it's present. Frankly, we just need to find out where it is."

The mistake took place while a Verizon subcontractor was performing a software upgrade on the archival system at the Framingham call center last week. An initial review showed it might have been an error by one of the subcontractor's technicians, according to the Executive Office of Public Safety. The vendors who worked on the projected, identified by Verizon as Plant CML Inc. and Needham-based Dictronics Inc., declined to comment. The vendor who provided the hardware according to Verizon, NICE Systems Ltd. of Israel, did not return calls.

But the lost 911 calls may not affect many police investigations because local departments keep their own recordings of calls routed through the State Police. Most calls into the affected center are forwarded, said Kelly Nantel, a spokeswoman for the Executive Office of Public Safety.

Both the Boston and Worcester police departments said they did not expect the missing recordings, some as recent as last week, to affect them.

``By the time the phone calls are forwarded to the Boston police, we do our own recording," said police spokeswoman Elaine Driscoll . ``The time between the state headquarters and us isn't significant." Verizon has an $80 million contract with the state to upgrade its 911 system, Nantel said.

Emergency calls sometimes provide critical evidence in criminal cases or civil claims because they provide a real-time window into an accident or crime, lawyers said. District attorneys from the Norfolk and Plymouth offices along with Nantel said they had not heard of any affected cases yet.

``At this point, we can't point to a case that is affected," said David Traub , spokesman for the Norfolk district attorney's office.

``We can't say the loss won't be felt in the future," he added, ``but most cases are proven without 911 calls, and this is something that is still very fresh."

Traub also noted that a 2004 US Supreme Court decision limited the circumstances in which so-called excited utterances -- statements made by people in response to shocking events -- can be admitted as evidence . As a result, Traub said, ``there used to be more dependence on 911 calls than there is now."

However, if the tapes are lost, the impact could extend beyond criminal cases because 911 calls are sometimes also used as evidence in civil claims, such as those involving auto accidents. In the case of a car crash, for instance, 911 calls can help determine the time of the accident or when a fire department or other emergency personnel were called.

``A lot of stuff we get through State Police 911 calls would be relative to things that happen on highways," Traub said, ``because a lot of those calls are made by people who are driving and don't have access to a land line."

Criminal defendants can file motions to dismiss a case or to suppress evidence if they believe there has been prosecutorial misconduct. But in the Verizon situation, there is no allegation that government misconduct played a role in the tapes being lost.

Several lawyers said yesterday that Verizon or its subcontractor could be the target of civil claims, such as breach-of-contract violations, if the recordings were permanently lost. But assessing damages in such cases would be difficult ``because the Commonwealth isn't in the business of seeking monetary recovery," said Boston lawyer Mark D. Smith, cochairman of the Boston Bar Association's criminal law section.

In addition, it is unclear who would bring such a civil claim, since government prosecutors focus on criminal, not civil, cases. District attorneys' offices, for example, are not authorized to file claims in civil court, with the exception of enforcing drug forfeiture claims, Smith said.

Or, as Traub put it: ``Our business is criminal prosecution," not filing civil claims.

Kim-Mai Cutler can be reached at kcutler@globe.com. SachaPfeiffer can be reached at pfeiffer@globe.com.