Butt-Dial Someone? No Reasonable Expectation Of Privacy

Next time you put your phone in your pocket, make really, really sure that it's off.

It’s happened to almost everyone. You’re in your car, or on the train, listening to music, or maybe having a conversation with someone. And despite being able to lock your phone, somehow, someway, you butt-dial someone by accident. Everyone has probably been on the opposite side of this situation as well. You get a call from someone and when you answer, there is only silence, or the radio, or they’re talking to someone else. You yell hello a few times before hanging up the phone.

Or, if you’re the defendant in Huff v. Spaw (PDF), you listen to the entire 91-minute phone call. A brief synopsis from the opinion:

James Huff inadvertently placed a pocket-dial call to Carol Spaw while he was on a business trip in Italy. Spaw stayed on the line for 91 minutes and listened to face-to-face conversations that James Huff had with Larry Savage, James’s colleague, and with Bertha Huff, James’s wife. Spaw transcribed what she heard and used an iPhone to record a portion of the conversation between James and Bertha Huff (the Huffs). The Huffs brought suit against Spaw for intentionally intercepting their private conversations, in violation of Title III. The district court granted summary judgment for Spaw on the ground that, because James Huff placed the pocket-dial call, the Huffs lacked a reasonable expectation that their conversations would not be intercepted, which is a prerequisite for protection under Title III.

The reason for listening to the call is that Huff is the chairman of the Airport Board in Kenton, Kentucky, which oversees the Cincinnati/Northern Kentucky International Airport. Spaw is the secretary of the airport’s CEO, Candace McGraw. And much of the conversations Huff was having while Spaw was listening in involved replacing her boss, Candace McGraw. Oops.

Spaw took notes for most of the butt-dialed call, and recorded the last few minutes of it. She then typed it all out, and presented it to the Airport Board, believing that, from listening to the call, Huff intended to unlawfully discriminate against McGraw. Huff subsequently filed suit against Spaw, claiming that Spaw intentionally intercepted his private conversation, thereby violating Title III (18 U.S. Code § 2511).

On appeal, the Court found that there was no reasonable expectation of privacy when you butt-dial someone. The Court drew analogies to 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. People v. Wright, 242 N.E. 2d 180, 184 (Ill. 1968)), and file sharing programs (the defendant “failed to demonstrate an expectation of privacy that society is prepared to accept as reasonable” because “he opened up his download folder to the world.” United States v. Ganoe 538 F.3d 1117 (9th Cir. 2008)).

In depositions, Huff testified that he was aware of the risk of butt-dialing people and had not taken proper precautions when placing his phone in his pocket (locking the phone, setting a password, etc).  As Huff had not taken any of these precautions (i.e., he didn’t close the drapes), the court held against him, stating:

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a person who knowingly operates a device that is capable of inadvertently exposing his conversations to third-party listeners and fails to take simple precautions to prevent such exposure does not have a reasonable expectation of privacy with respect to statements that are exposed to an outsider by the inadvertent operation of that device. Huff at 12.

While that might not seem fair — everyone has probably butt-dialed someone by accident at some point — it’s the law of the land. So next time you put your phone in your pocket, make really, really sure that it’s off.

Anything You Butt-Dial Can And Will Be Used Against You [ATL Redline]


Keith Lee practices law at Hamer Law Group, LLC in Birmingham, Alabama. He writes about professional development, the law, the universe, and everything at Associate’s Mind. He is also the author of The Marble and The Sculptor: From Law School To Law Practice (affiliate link), published by the ABA. You can reach him at keith.lee@hamerlawgroup.com or on Twitter at @associatesmind.

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