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Court Hears Pocket-Dial Eavesdropping Case

CINCINNATI (CN) - A woman who allegedly pressed record on her co-worker's "pocket-dialed" call will likely defeat privacy claims, 6th Circuit judges said Tuesday.

Jim Huff, chair of the Kenton County, Ky., Airport Board, said the Oct. 24, 2013, call occurred while he was attending a conference in Italy relating to operations at the Cincinnati/Northern Kentucky International Airport.

Huff sued Carol Spaw, the Erlanger, Ky., woman who answered that call in December 2013, for alleged eavesdropping.

The federal complaint alleges that Huff's cellphone "accidentally" dialed the airport's administrative offices, and that Spaw, administrative assistant to the airport's CEO, answered.

During the alleged 91-minute call, Huff says he spoke with fellow board member and his wife, Bertha, at the conference and in his private hotel room.

Spaw meanwhile allegedly recorded the call, transcribed portions of it and disseminated said portions to an unnamed third party. Huff and his wife say that third party gave the recording and transcript to yet another person.

A federal judge in Covington ruled for Spaw, however, after determining that a cellphone owner does not have a reasonable expectation of privacy in light of the common knowledge that cellphones can make calls without the intent of the owner.

The 6th Circuit seemed inclined to affirm Tuesday, rejecting a call to give cellphone users the privacy privileges that doctors and their patients, or attorneys and their clients, enjoy.

The Huffs' attorney Aaron VanderLaan told the three-judge appellate panel that a person does not forfeit his privacy rights simply by carrying a cellphone.

Spaw was an "uninvited ear" in Huff's conversation which, at one point, discussed replacing certain members of the board, VanderLaan said.

Judge Danny Boggs quickly countered by noting that "Miss Spaw did not put her ear in the 'phone booth.'"

VanderLaan deemed it relevant, however, that Spaw said "hello" at least six times in the first minute of the pocket-dialed call and got no response.

She should have assumed the call was not intended for her and hung up, he said.

Judge Boggs said Huff nevertheless must prove "greater intentionality than just listening" on the part of Spaw to pursue damages.

The judge seemed unimpressed when VanderLaan urged the court to take into account the technology present on that Huff's smartphone.

"I have a pretty dumb phone that will do it," Boggs said.

Jon Allison, representing Spaw, maintained that when Huff placed the call - intentionally or not - he forfeited his rights to a reasonable expectation of privacy.

Judge Deborah Cook quickly interrupted with several concerns:

"What if [a pocket-dial] had never happened to you before? Where does the object[ivity] come in? Do we all have knowledge of pocket dials?"

Allison responded that most people are aware of pocket-dialing, and that Huff could easily have prevented the error by locking his phone, turning it off completely or putting it somewhere out of the way.

Insisting that Spaw had not technically "intercepted" the call, Allison said his client cannot be liable for listening in on the conversation.

Unless the listener intercepts the call with some "criminal or tortious intent," the caller has no reasonable expectation for complete privacy, the attorney added.

Judge Cook undermined this point by noting that Spaw's recording of the call could be construed as "preserving it for some potentially nefarious, or lawful, use."

VanderLaan used his limited rebuttal to seek remand to District Court with instructions that the Huffs had a reasonable expectation of privacy during the call.

In a revealing final remark, Judge Cook replied, "I think that might be too big of a step."

U.S. District Judge Gordon Jay Quist, sitting by designation from Grand Rapids, Mich., rounded out the panel.

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