August 10, 2015

Watch Your Pocket: You May Have Dialed Away Your Privacy

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by Douglas Brent, Attorney at Stoll Keenon Ogden PLLC
Annie Malka, Summer Associate at Stoll Keenon Ogden PLLC

Inadvertently dialed mobile phone calls are a source of amusement among friends, but a recent decision from Sixth Circuit Court of Appeals explains how “pocket dials” can erase legal protections that safeguard private conversations.

In Huff v. Spaw, the Court considered whether listening to and recording a conversation from an accidental pocket dial violates Title III of the Omnibus Crime Control and Safe Street Act of 1968. Known as the Wiretap Act, Title III provides injured parties a right of action against violators who have intercepted oral communication.  This federal law targeting secret recordings predates widespread use of mobile wireless devices that can betray confidences, sometimes accidentally.

A Notorious Call
James Huff, chairman of the Kenton County, Kentucky Airport Board, placed what became an unforgettable pocket dial when he mistakenly called Carol Spaw from his iPhone. Although his iPhone was in his suit pocket, it picked up his face-to-face conversation with another board member about replacing the Airport’s CEO. While she quickly determined that Huff’s call was unintentional, Spaw recorded the conversation. Huff discovered the call-in-progress roughly 91 minutes later, after returning to his hotel room with his wife Bertha Huff, and ended the call.

Huff eventually learned of the recording, and sued Spaw for intercepting the conversation. To evaluate the statutory claim, the Court considered whether the Huffs had reasonable expectations of privacy.

No Expectation of Privacy for Pocket Dialers
The Court said inadvertently disclosing a phone conversation can deprive a negligent party of their privacy interest, saying Huff failed “to exhibit an expectation of privacy.”  Evidence showed past instances of Huff’s pocket dialing, yet he had not enabled a lock on his phone or downloaded a safeguarding app to prevent future pocket dials. The Court concluded that between James Huff and Spaw, there was no unlawful interception.

The Court agreed that Bertha Huff’s expectation of privacy during the hotel room conversation with James was reasonable. Hotels are treated as homes for privacy purposes, where there is a reasonable expectation of conversing in private. The Court rejected contentions that Bertha did not have a reasonable expectation of privacy by conversing with Jim, who she knew carried a device capable of pocket dialing.

Be Proactive
If your mobile phone is prone to pocket dialing, take necessary precautions to reduce potential exposure to a 3rd party and protect your privacy.  As it relates to legal protection, your innocent error may weigh more heavily than the motivations of someone who takes advantage of your mistake.