You Have No Expectation Of Privacy In Your Butt Dials

from the be-forewarned dept

The Sixth Circuit court of appeals has now made it clear: you have no expectation of privacy in your butt dials. The full ruling makes for some fascinating reading. Apparently a guy named James Huff made what must be one of the most expensive butt dials in history. Huff, who was chairman of the Kenton County Airport Board (in Kenton, Kentucky) which oversees the Cincinnati/Northern Kentucky Airport (CVG), was in Europe on a business trip. At one point, he tried to call Carol Spaw, the executive assistant of the airport's CEO, Candace McGraw, to see if Spaw could schedule a dinner reservation for him and another board member. His call failed, but after another board member with Huff successfully reached Spaw, it appears that Huff's phone, in his pocket, called again and he was -- unknowingly -- successfully connected with Spaw.

At this point, though, Huff was already talking with the other board member, Larry Savage, about possibly replacing Spaw's boss, McGraw. Spaw proceeded to then continue to listen and transcribe notes of what was being said, including recording parts of the call, which lasted for approximately an hour and a half (yes, from Italy to Kentucky, so... the price of the call alone was probably quite a lot, not counting the eventual legal costs). As for why she did this:
Spaw claims that she believed that she heard James Huff and Savage engaged in a discussion to discriminate unlawfully against McGraw and felt that it was her responsibility to record the conversation and report it through appropriate channels.
Eventually Spaw typed up the notes she had taken, hired a company to enhance the audio of the recording she made and shared both with other board members. Huff was... not happy. He (and his wife) sued Spaw, claiming illegal wiretapping under 18 USC 2511. The lower court tossed out this claim, and the Huffs appealed.

Here, the court examines whether or not Huff had a reasonable expectation of privacy in his conversation, and notes that he knew there was such a risk and had, in fact, made such errant calls in the past. Thus, he had no reasonable expectation of privacy, since it was his own negligence that resulted in the butt dial:
At his deposition, James Huff admitted that he was aware of the risk of making inadvertent pocket-dial calls and had previously made such calls on his cellphone. A number of simple and well-known measures can prevent pocket-dials from occurring. These include locking the phone, setting up a passcode, and using one of many downloadable applications that prevent pocket-dials calls.... James 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.
The court rejects the claim, made by the Huffs, that such a ruling would mean no one had any expectation of privacy in their phone calls:
The Huffs warn that, if we do not recognize James Huff’s reasonable expectation of privacy in this case, we would deprive all cellphone-carrying Americans of their reasonable expectations of privacy in their conversations.... We disagree. Not recognizing James Huff’s expectation would do no more injury to cellphone users’ privacy interests than the injury that the plain-view doctrine inflicts upon homeowners with windows or webcams. A homeowner with an uncovered window or a broadcasting webcam lacks a reasonable expectation of privacy with respect only to viewers looking through the window that he neglected to cover or receiving signals from the webcam he left on. He would retain a reasonable expectation of privacy in his home with respect to other means of observation, for example thermal-imagery devices.... Similarly, James Huff retained an expectation of privacy from interception by non-pocket-dial means, such as by a hidden recording device or by someone covertly causing his cellphone to transmit his statements to an eavesdropper..... James Huff lacked a reasonable expectation of privacy in his statements only to the extent that a third-party gained access to those statements through a pocket-dial call that he placed. In sum, a person who knowingly operates a device that is capable of inadvertently exposing his conversations to third-party listeners and fails to take simple precautions to prevent such exposure does not have a reasonable expectation of privacy with respect to statements that are exposed to an outsider by the inadvertent operation of that device.
So, the failed lawsuit would then be the second part of why this was likely the most expensive butt dial in history.

Of course, it's not a total loss for the Huffs. As noted earlier, it wasn't just James Huff who sued, but also his wife, Bertha. Apparently part of the overheard conversation was between James and Bertha, and the court is much more receptive to Bertha's "reasonable expectation of privacy" claim. The lower court had said she didn't have a reasonable expectation of privacy, since she knew that her husband's phone might butt dial someone. The appeals court finds that to be a bit more ridiculous.
If Bertha waived her reasonable expectation of privacy from pocketdials 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 cellphone. The district court’s holding would logically result in the loss of a reasonable expectation of privacy in face-to-face conversations where one party is aware that a participant in the conversation may have a modern cellphone. As nearly every participant in a conversation is a potential cellphone carrier, such a conclusion would dramatically undermine the protection that Title III grants to oral communication.
And thus, the court sends it back down to the lower court to determine if Spaw's answering of the phone, listening to the call she received and taking such notes (and recording part of the call) constituted "intentional use of a device" to intercept Bertha Huff's oral communications. Most of that seems like a stretch -- though the fact that, at one point, she did have someone go get another phone with which to record the call at least raises some questions that make it not so cut and dried.

Either way, the moral of the story: don't butt dial. And, if you do: don't then discuss figuring out a way to fire the boss of the person you butt dialed.

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  • identicon
    Anonymous Coward, 24 Jul 2015 @ 10:01am

    Shouldn't the wife be suing the husband for illegally transmitting her voice or something? If someone calls me and I hear their spouse on the background how is it my fault?

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 24 Jul 2015 @ 10:16am

    Most Expensive Butt-Dial?

    I think the most expensive butt-dial had to be the one made rom bin Laden's compound. Ignore the CIA propaganda about jeep chases and subterfuge - basically they'd been tracking the courier's satellite phone. The guy always drove 60 miles or more from home to phone. (They knew who it was because he phone his family in Saudi Arabia).

    One day the phone went live, connected with the satellite, and transmitted its coordinates for a minute or less before it went dead - in a previously unknown location, nowhere near the usual call locations. That turned out to be Bin Laden's compound.

    Considering the cost of planning and executing the raid, plus the cost of one crashed serious stealth chopper, that had to be the most expensive butt-dial in history.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Jul 2015 @ 2:35pm

      Re: Most Expensive Butt-Dial?

      On the one hand, yes, it was very expensive for the US.

      On the other hand, it wasn't terribly expensive (that we know of) for the courier. Might have been, but his story isn't as widely published.

      On the gripping hand, it was terminally expensive for Bin Laden. You don't get more (personally) expensive than "fatal".

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 24 Jul 2015 @ 10:28am

    So the moral of the story is "do not stick your phone in your butt if you plan to engage in some conspiracy"?

    reply to this | link to this | view in chronology ]

  • icon
    tqk (profile), 24 Jul 2015 @ 11:03am

    Butthurt?

    ... and notes that he knew there was such a risk and had, in fact, made such errant calls in the past.

    Even after repeated warnings, even with the ability to autolock built in, even with the availability of third party apps designed to make it even easier, ... Crack open the champaign ma'am. He just handed you a winning lottery ticket on a solid gold, jewel encrusted platter.

    This guy's Darwin Award material.

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 24 Jul 2015 @ 11:06am

    Nobody ever butt-dialed a flip-phone.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 24 Jul 2015 @ 11:10am

    Yeah, I would assume that serious spies, terrorists and conspirators know not to butt-dial.

    This isn't a new phenomenon. Stories of unsupervised toddlers in the 70s 911ing the police while their parents were stoned are part of urban legend.

    Now if your phone's been hacked to occasionally dial the CIA so they can listen in on what you're doing, that sounds like a breach of privacy expectation.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 24 Jul 2015 @ 11:13am

      I should mention...

      ...the CIA hacked phone thing has been around since at least the 60s. Usually some guys from the phone company would come in in coveralls to fix that recent static problem, and install the dialing module.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Jul 2015 @ 11:51am

    Spaw did not make the call, so she shouldn't be the one to answer for recording the guy's wife. If you call me, I have a right to listen and take notes. If anyone should be responsible to Huff's wife it is Huff himself, since he is the one who initiated the call.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Jul 2015 @ 5:18pm

    Get you thinking about "butt dials"

    Imagine if you are working in a certain 3 letter agency and find out that your home is right this minute being burgled. Knowing that your actions are wrong, but the violation of your home overrules and you cause one of the cell phones in the home to contact the local police. Everyone laughs and says criminals are are dumb they butt dialed the police on themselves, but in reality someone just risked a lifetime in prisons if the capabilities of existing programs got out due to your pride being at stake.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 24 Jul 2015 @ 5:58pm

    Man someone should modernize and remake...

    ...Sorry, Wrong Number, 1948 (actually a 1943 radio play).

    A telephone operator error misconnects bedridden Leona Stevenson so that she overhears two men plotting a murder over the phone and has to convince the police it's the real deal.

    Heh. Buttdial makes a great name and premise.

    reply to this | link to this | view in chronology ]


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