Pocket-dialing: A cautionary tale

Funny, Bizarre, NakedLaw

The butt-dial: one of the more common, and occasionally embarrassing, faux pas of the cell phone age. Accidentally dialing someone is awkward enough, but now, thanks to a ruling by a Cincinnati federal appeals court, it could mean that any conversation you have during an unintentional phone call could be made public.

The butt-dial heard ‘round the world

That’s exactly what happened to James Huff, chairman of the board that oversees the Cincinnati/Northern Kentucky International Airport. While on a business trip in Italy, he accidentally called Carol Spaw, assistant to the airport’s CEO, from his cell phone. Spaw realized the phone call was not intentional, but she stayed on the line, taking notes and recording parts of the audio. During the 91-minute call, Huff spoke to his colleague Larry Savage and wife Bertha Huff about sensitive business matters. Spaw then sent the recording she’d made to other board members.

Whoops.

James Huff and Bertha Mae Huff sued Spaw for intercepting their private conversation. The district court ruled against them, saying they had no reasonable expectation of privacy given the circumstances. The Huffs appealed, and on July 21, the US Court of Appeals for the Sixth Circuit affirmed some aspects of the lower court’s ruling and reversed others.

Expectation of privacy for her, not for him

The Huffs’ attorneys argued that Spaw violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which addresses rules for wiretapping. But Title III only gives protection if there is reasonable expectation that a conversation will not be intercepted. It’s unreasonable to expect such privacy when accidentally calling someone, said Judge Danny Boggs, who wrote the opinion. Furthermore, there are many ways to avoid accidental pocket-dials (the court’s preferred term over “butt-dials”) and, said Boggs, “Huff did not employ any of these measures. He is no different from the person who exposes in-home activities by leaving drapes open or a webcam on and therefore has not exhibited an expectation of privacy.”

In short, James Huff couldn’t expect privacy and is not protected under Title III.

Bertha Huff, however, is a different story. The district court decided that, because she knew her husband had a cell phone and that cell phones are subject to pocket-dialing, she also could not have had any reasonable expectation of privacy. But the appellate court disagreed. “If Bertha waived her reasonable expectation of privacy from pocket-dials by speaking to a person who she knew to carry a pocket-dial-capable device, she would also waive her reasonable expectation of privacy from recordings and transmissions by speaking with anyone carrying a recording-capable or transmission-capable device, i.e., any modern cell phone . . . As nearly every participant in a conversation is a potential cell phone carrier, such a conclusion would dramatically undermine the protection that Title III grants to oral communication.”

The case was remanded back to the lower court to decide whether Spaw “intercepted” Bertha Huff’s oral communication.

Cell phones: How much privacy can you expect?

When it comes to navigating the legal landscape of privacy issues in an increasingly technological age, cell phone use represents particularly rough terrain. Here are some major cell phone privacy issues that have come to light in recent years:

Warrantless cell phone searches. Two cases that made it to the Supreme Court last year dealt with police searches of cell phones. Nearly 2 in 3 Americans own a smartphone, according to Pew Research, and courts have to contend with the fact that smartphones are not just communication devices but also cameras, video recorders, audio recorders, and more. The Supreme Court ruled that police must obtain a warrant before going through a suspect’s phone to look for evidence.

Kill switches. Last year, California became the second state to mandate “kill switches,” which allow users to remotely shut down their cell phone’s functionality in the event of loss or theft.

Recording conversations. If you want to record a cell phone conversation, check with your state’s laws about whether all parties—or just one—must consent to recording.