6th Circuit Rules on|Privacy of ‘Pocket-Dials’

     (CN) – A person who “pocket-dials” a third party during a conversation does not have a reasonable expectation of privacy, the Sixth Circuit ruled.
     A panel determined that widespread knowledge of accidental calling and the availability of preventative measures mean that an individual on the receiving end of such a call does not violate privacy laws by recording the conversation.
     James Huff, former chairman of the Kenton County, Ky. Airport Board – which oversees the Cincinnati/Northern Kentucky International Airport – sued an executive assistant after she recorded a conversation about board matters.
     Huff was in Italy in October 2013 with board vice chairman Larry Savage when the two had a private conversation on a hotel balcony.
     While the two discussed the possibility of replacing then-CEO Candace McGraw, Huff tried to call executive assistant Carol Spaw but dialed the wrong number. Huff put his phone back in his pocket, at which point he inadvertently dialed Spaw’s correct number.
     According to court documents, “Spaw answered and could hear James Huff and Savage talking, but she could not understand what they were saying. She said ‘hello’ several times but got no response.”
     Once she realized the conversation was intended to be private, Spaw said 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,” the ruling states.
     Spaw allegedly took notes and recorded a portion of the 91-minute conversation on her iPhone, some of which included a personal conversation between Huff and his wife, Bertha.
     The audio and written summary of the conversation were shared with members of the Airport Board and the Huffs sued in December 2013.
     An Eastern Kentucky district court found that the Huffs lacked a reasonable expectation of privacy because Huff placed the call himself, albeit unknowingly.
     Judge Danny Boggs agreed with the lower court on Tuesday, writing that “exposure need not be deliberate and instead can be the inadvertent product of neglect. Under the plain-view doctrine, if a homeowner neglects to cover a window with drapes, he would lose his reasonable expectation of privacy with respect to a viewer looking into the window from outside of his property…the doctrine applies to auditory as well as visual information.”
     “[A] person exposes his activities and statements, thereby failing to exhibit an expectation of privacy, if he inadvertently shares his activities and statements through neglectful use of a common telecommunication device,” Boggs continued.
     The three-judge panel also cited Huff’s own testimony, during which he admitted not only knowing about the possibility of pocket-dialing, but that he had done it in the past.
     Boggs listed numerous preventative measures available to prevent such calls, including “locking the phone, setting up a passcode, and using one of many downloadable applications that prevent pocket-dials calls,” but noted that “James Huff did not employ any of these measures.”
     The Huffs argued that by affirming the lower court’s decision, the Sixth Circuit would deprive all Americans carrying cell phones of their reasonable expectations of privacy, according to court records, but Boggs disagreed.
     “Not recognizing James Huff’s expectation would do no more injury to cellphone [sic] users’ privacy interests than the injury that the plain-view doctrine inflicts upon homeowners with windows or webcams,” the judge wrote. “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 [sic] to transmit his statements to an eavesdropper.”
     The panel reversed the portion of the district court’s decision regarding Bertha Huff, however, determining that she did have a reasonable expectation of privacy during the conversation with her husband.
     “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 [sic],” Boggs wrote. “As nearly every participant in a conversation is a potential cellphone [sic] carrier, such a conclusion would dramatically undermine the protection that Title III grants to oral communication.
     “It would also mean that, had Spaw and James Huff conspired for James to deliberately turn on his phone and transmit his conversation with Bertha Huff for Spaw to hear and share with others, neither James nor Spaw would have violated Title III because no ‘oral communication’ was intercepted. But the law does not support this conclusion,” the judge wrote.
     Finally, the Sixth Circuit rejected Spaw’s argument that she is not liable for the interception of the conversation because she did not interfere the phone line.
     Boggs concluded that “non-interference with a phone line does not, by itself, prevent an instance of phone-based eavesdropping from qualifying as an interception if the eavesdropping occurred without the consent of at least one party to that conversation, as is the case with the Huffs.”

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