Tuesday, August 18, 2015

Pocket-Dialing Offers No Expectation of Privacy (Stephen Stapleton)

By Steve Stapleton

The Sixth Circuit Court of Appeals has recently held that a person who makes “an inadvertent ‘pocket-dial’ call(*1)  does not have “a reasonable expectation of privacy when he knew or should have known that the operation of a device [which is capable of transmitting such calls] might grant others access to his statements or activities ….”  Huff v. Spaw, No. 14-5123 (6th Cir., July 21, 2015).  However, those in a face-to-face conversation with the pocket-dialer during the transmission of the call, may indeed have an expectation of privacy, despite knowing that the pocket-dialer may have a phone on which is capable of inadvertently transmitting the call.

James Huff was Chairman of the Kenton County, Kentucky, Airport Board which oversees the Cincinnati/Northern Kentucky International Airport (CVG).  Carol Spaw was the Senior Executive Assistant to the airport’s CEO.  Her responsibilities included making travel arrangements for board members.  In October 2013, Huff traveled to Italy with his wife and with another board member, Larry Savage, to attend a business conference.  After a conference meeting, Huff and Savage went to an outdoor hotel balcony to discuss CVG personnel matters, including the possibility of replacing the CEO.  While on the balcony, Huff attempted to call Spaw’s cell phone from his iPhone to request that she make dinner reservations for himself and Savage.  He failed to reach her because he had misdialed her number and thereafter placed the phone in his breast pocket.  Shortly thereafter, his iPhone placed a pocket-dial call to Spaw’s office phone.  Spaw answered the phone and realized that she could hear the conversation, a portion of which involved a bedroom conversation with his wife and a previous portion of which, Spaw claimed, involved a discussion to discriminate unlawfully against the CEO.  Spaw took handwritten notes and recorded a portion of the 91 minute call, thereafter sharing the notes, now typewritten, and the recording of the call with other members of the airport board.

Huff and his wife filed a verified complaint that Spaw had violated Title III of the Omnibus Crime Control and Safe Street Act of 1968 by intentionally intercepting, disclosing and using the contents of their oral communications in violation of 18 U.S.C. §2511(1)(a), (c) and (d).

After concluding that the extraterritoriality of the communication was not an impediment to jurisdiction, the appellate court affirmed the district court’s judgment as to Huff but reversed the lower court’s judgment as to his wife.  Finding that Huff had failed to take any number of “simple and well-known measures [which] can prevent pocket-dials from occurring,” including locking the phone, setting up a passcode or using one of many downloadable applications that prevent pocket-dials calls, the court equated Huff’s expectation of privacy for his inadvertent call to that of “[a] homeowner with an uncovered window or a broadcasting webcam,” stating that he lacked “a reasonable expectation of privacy … through a pocket dial call that he placed.”
As to his wife, however, the court reversed the judgment of and remanded the case back to the district court, finding that, while his wife knew her husband had a cellphone that was capable of transmitting conversations to third party listeners via pocket-dial calls, nevertheless retained an expectation of privacy in her face-to-face communications with her husband in the hotel room, despite such knowledge.

The takeaway here is that you needn’t pat down the person with whom you’re conversing to ensure their ubiquitous phone is not inadvertently broadcasting; however, if you fail to take the Sixth Circuit’s prescription and download the pertinent application, you might want to just turn your own phone off.  It might make for a quieter future.

*(1)  As the Court noted, “[t]he term ‘pocket-dial’ refers to the accidental placement of a phone call when a person’s cellphone ‘bump[s] against other objects in a purse, briefcase, or pocket.’ Fed. Commc’n Comm’n, Accidental 911 Calls from Wireless Phones Pose Risk to Public Safety, available at http://www.fcc.giv/accidental-911-calls-wireless-phones (last visited June 30, 2015).”

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