Most people have experienced a “pocket dial” – be it as the sender or receiver – and some have found themselves in embarrassing situations as a consequence. But should people reasonably expect that conversations overhead during a “pocket dial” call are private and protected? Should the recipient feel obligated to end the call? The Sixth Circuit says no.
Yesterday, the Sixth Circuit decided whether a reasonable expectation of privacy exists with respect to “pocket dialed” communications. Carol Spaw, assistant to the CEO of Cincinnati/Northern Kentucky International Airport, received a call from James Huff, chairman of the airport board. It didn’t take long for Spaw to figure out that she had received a pocket dial, and that the conversation in the background was not intended for her ears. Spaw stayed on the line for an hour and a half – taking notes and recording the audio as Huff discussed private business matters with another board member, and later with his wife. Spaw sent the recording to a third party company to enhance the quality, and shared the recording with other board members. Huff and his wife sued Spaw for intentionally intercepting their private conversation in violation of Title III of the Omnibus Crime Control and Safe Street Act of 1968. The district court granted summary judgement in favor of Spaw, finding no “reasonable expectation” that the conversation would not be heard. On appeal, the Sixth Circuit affirmed in part, reversed in part, and remanded.
Title III only protects communication when the expectation of privacy is subjectively and objectively reasonable. The Sixth Circuit agreed with the district court that James Huff did not have a reasonable expectation that his conversation was private. Although Mr. Huff did not deliberatelydial the call, he knew that “pocket dials” were possible, and did not take any precautions to prevent them. The court analogized Huff’s situation to a homeowner who neglects to cover his windows with drapes; under the plain view doctrine, the homeowner has no expectation of privacy in his home when the windows are uncovered. Huff could have easily utilized protective settings on his phone to prevent pocket dials.
The Sixth Circuit reversed with respect to Bertha Huff’s claim. Bertha Huff was communicating with her husband in the privacy of a hotel room. She had a reasonable expectation of privacy in that context, and she was not responsible for her husband’s pocket dial. The Sixth Circuit feared that affirming the district court’s decision with respect to Bertha’s claim would undermine what we currently consider a reasonable expectation of privacy in face-to-face conversations. The court remanded the case back to the district court to decide whether Spaw’s actions made her liable for “intentionally” intercepting oral communications.
The Sixth Circuit’s decision leaves us with this: if you receive a pocket-dialed call, feel free to listen, record, and share (but be wary of the privacy interest of the other participants in the conversation); if you are a pocket dialer, lock your phone.
© Copyright 2015 Squire Patton Boggs (US) LLP
