Recording a Pocket-Dialed Call Is A-Okay, 6th Rules

Alternative Title: Expectation of Privacy Doesn't Apply to Pocket-Dials

An expectation of privacy doesn't apply to your accidental pocket-dials, the Sixth Circuit ruled on Tuesday. Someone who pocket-dials, butt-dials, purse-dials, or otherwise unintentionally calls another party doesn't have a reasonable expectation of privacy, the court ruled, and whoever is on the receiving end of the call is free to eavesdrop -- even to record your conversations.

The case came after an executive accidentally pocket-dialed a colleague's secretary. That secretary listened in, for over an hour and a half as plans for firing her boss were discussed. When she revealed them, the executive sued, claiming that her eavesdropping was an unlawful interception of private communications. Not so, the Sixth Circuit ruled.

Now That's a Nosy Secretary

James Huff worked as Chairman of the airport board which oversees Cincinnati International Airport. On a trip to Italy in 2013, Huff met with the board's Vice Chairman and began to discuss plans for removing the airport's CEO. (You can probably guess where this is going.)

During that conversation, Huff accidentally, unknowingly, called Carol Spaw, said CEO's Secretary. Spaw was, of course, interested in what she heard, so she kept listening -- and listening, and listening.

Spaw eavesdropped for 91 minutes. During that hour and a half, she recorded most of Huff's conversation, including his unrelated discussion with his wife. She sent that recording to a company to enhance the audio. She typed up a summary of Huff's conversation, told her boss about it, and shared the audio with the airport's board.

Huff sued, alleging that Spaw violated Title III of the Omnibus Crime Control and Safe Streets Act. That law prohibits intentionally intercepting another's oral communications.

If You Wanted Privacy, You Shouldn't Have Called

To be protected, those communications must be made under an expectation of privacy. If someone exposes statements "to the plain view of outsiders" or fails to take preventative steps to protect communication, then there is no expectation of privacy.

Since Huff called Spaw, he couldn't have intended his comments to be private, the court reasoned, as he exposed them to outsiders. That exposure doesn't have to be intentional -- a negligent pocket-dial will do.

Huff knew about accidental pocket-dials and had made them before, the Sixth noted. Despite this, he hadn't taken any simple protections to prevent them. He hadn't locked his phone, hadn't set up a passcode, hadn't installed any protective apps. Huff is like someone who leaves their curtains open and then complains about others looking in, the Sixth said. That his conversation was overheard wasn't a violation of his privacy, it was the result of his own neglect.

The court was not sympathetic to Huff's argument that ruling against him would compromise the privacy of millions of cell phone users. If the public wants to protect itself against overheard pocket-dials, the court explained, it won't be through privacy rights or wiretap laws. It will have to be through taking precautions to prevent the calls in the first place.

Related Resources:

• You Are Now Liable for Your Butt Dials (Bloomberg)
• That's Ruff: Dog Sniff not a Search, No Warrant Needed 6th Rules (FindLaw's U.S. Sixth Circuit Blog)
• Driver's Privacy Protection Act Seems Fairly Useless (FindLaw's U.S. Sixth Circuit Blog)
• 6th Cir. Creates Split in Private Searches on Computers (FindLaw's U.S. Sixth Circuit Blog)