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.