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No Right to Privacy During a Pocket Dial?

It’s happened to all of us. You get a call from someone and all you can hear on the other end is a rustling sound, or perhaps some voices that sound like they’re in a tunnel. Or maybe you’ve checked your recent calls and discovered that you called someone today, but you do not have any memory of making that call. These are signs that you’ve either pocket dialed someone, or have been pocket dialed by them.

Pocket dialing (more commonly known as “butt dialing”) is when, by some accident, your phone calls someone without you actually intending for it to do so. While there are certain ways to safeguard against this by using apps or lock codes, it is still a common occurrence for many mobile phone users.

When a pocket dial call is happening, the person whose phone has placed the call is completely unaware of what is happening. Sometimes, the person who has received the pocket dial call is content to listen on the call for a while, occasionally with embarrassing results. For example, there have been criminals who have pocket dialed 911 during the commission of a crime! Last week, the Sixth Circuit Court of Appeals was faced with a case involving pocket dialing, and the results could have far-reaching implications.

In Huff v. Spaw, the chairman of an airport board pocket dialed the assistant to the airport’s CEO. The pocket dial occurred while the chairman was discussing the possibility of firing the CEO of the airport. The chairman also discussed various personal matters with his wife. The CEO’s assistant listened to the entire 91-minute call, and even took notes and a recording of part of the conversation. After the call ended, the assistant converted her handwritten notes into a summary and shared the summary and the recording with the other members of the airport board.

Huff, the chairman, and his wife filed a federal complaint against the assistant under Title III of the Omnibus Crime Control and Safe Street Act of 1968 (Title III). The Huffs argued that Spaw had intentionally intercepted their oral communications, disclosed the contents of those communications, and used the contents of the intercepted communications. The federal district court granted summary judgment in favor of Spaw and held that Title III does not protect the Huffs’ conversations because any expectation that their conversations would not be intercepted was not reasonable under the circumstances. The Huffs appealed to the Sixth Circuit.

On appeal, Huff argued that he did indeed have a reasonable expectation that his communications would not be intercepted. The court stated that, because Huff placed a pocket dial call to Spaw, “he exposed his statements to her and therefore failed to exhibit an expectation of privacy with respect to those statements.” The court further stated that “exposure need not be deliberate and instead can be the inadvertent product of neglect.” Essentially, the court was relying on the principle that “a person does not exhibit a reasonable expectation of privacy when he knew or should have known that the operation of a device might grant others access to his statements or activities.”

During a deposition, Huff admitted that he was aware of the risk of making inadvertent pocket dial calls and had previously made such calls on his cellphone. The court also pointed out that there are various ways of protecting against pocket dials. The court stated that Huff was no different than “the person who exposes in-home activities by leaving drapes open or a webcam on and therefore has not exhibited an expectation of privacy.” Ultimately, the court concluded that Huff only had a reasonable 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.

Finally, the court concluded: “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.” You can read the full opinion here.

The question moving forward from this case appears to be: what precautions must one take to trigger a reasonable expectation of privacy with respect to statements exposed by a pocket dial? Putting a lock code on a mobile phone would likely be a good place to start, but is that sufficient? Do phone users need to get a special app to prevent pocket dials? As the saying goes, better safe than sorry, but one must wonder what will be enough to generate the all-important “reasonable” expectation of privacy.

The attorneys at Dalton & Tomich, PLC have experience with many different kinds of federal litigation. If you are being sued under a federal statute or you feel that you have a case to pursue, please do not hesitate to contact us. We would be pleased to speak with you.

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