Someone whom you pocket-dial can listen to your call with impunity, a federal appeals court has ruled.
That’s because you know, or should know, that using a cellphone might result in your calling someone inadvertently, according to the U.S. Court of Appeals for the Sixth Circuit, which held recently that an assistant to the CEO of Cincinnati/Northern Kentucky International Airport who overheard comments about her boss by the airport’s chairman after he pocket-dialed the assistant is not liable for unlawfully intercepting a private conversation.
The assistant, Carol Spaw, listened continuously on Oct. 24, 2013 while James Huff, the chairman of the airport board, discussed Candace McGraw, the CEO, with Larry Savage, the airport’s vice-chairman, and later with Huff’s wife, Bertha. The men had stepped onto an outdoor balcony at their hotel in Bologna, Italy, where they discussed airport personnel matters, including the possibility of replacing McGraw as CEO.
Both Huff and his wife, with whom Huff continued discussing McGraw after returning to their room, later sued Spaw for intentionally intercepting their private conversations. A trial court ruled in favor of Spaw after concluding that because Huff placed the call, the Huffs lacked a reasonable expectation that their conversation would not be intercepted.
The appeals court agreed with respect to James but not with regard to Bertha. Writing for a three-judge panel, Judge Danny Boggs noted that “a number of simple and well-known measures can prevent pocket-dials form occurring.” But James Huff did not employ any of those measures, Boggs noted, adding, “He is no different from the person who exposes in-home activities by leaving drapes open or a webcam on and therefore has not exhibited an expectation of privacy.”
At issue was a series of steps that led to Spaw’s overhearing a conversation the participants thought to be private. After stepping onto the balcony, Huff tried to call Spaw using his iPhone to ask her to make a dinner reservation for him and Savage. When the call failed to connect, Savage called Spaw, who agreed to make reservations.
Thereafter, while Huff and Savage discussed personnel matters, the iPhone, which Huff had placed in the breast pocket of his jacket, called Spaw’s office phone, which she answered. After saying “hello” several times without a response, Spaw placed her phone on speaker mode and said “hello” a few more times. Within the first two minutes, Spaw realized that Huff and Savage were discussing McGraw, which prompted Spaw to take handwritten notes of the conversation and to instruct her colleague Nancy Hill, who also could hear the men talking, to do the same.
Spaw listened continuously to the call, which lasted 91 minutes. During that time, Huff finished his conversation with Savage and returned to his room, where he relayed to Bertha the substance of his conversation with Savage. Spaw, who used an iPhone to record part of the call, claimed that she felt obliged to do so after hearing the men discuss what Spaw described as an intention to discriminate against McGraw unlawfully.
The court noted that whether someone intercepts a phone call in violation of the law that authorized Spaw’s lawsuit turns on two questions: First, whether a person whose call is intercepted exhibits an expectation of privacy and, second, whether that expectation is reasonable.
“James Huff lacked a reasonable expectation of privacy in his statements only to the extent that a third-party gained access to those statements through a pocket-dialed call that he placed,” wrote Boggs (emphasis in original). “In sum, a person who knowingly operates a device that is capable of inadvertently exposing his conversations to third-party listeners and failed 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.”
Unlike her husband, however, Bertha Huff had an expectation that the contents of her conversation would remain private, at least until the final two minutes of the call, when her husband realized what had happened and told her his phone was on.
Though Bertha Huff knew her husband owned a cellphone and that cellphones can pocket-dial, “speaking to a person who may carry a device capable of intercepting one’s statements does not constitute a waiver of the expectation of privacy in those statements,” Boggs wrote.
Bertha Huff might have a claim against Spaw, provided Huff can show that Spaw’s actions constituted an intentional use of a device to intercept Huff’s communications, the court ruled.
The decision reminds us that anyone we pocket-dial can eavesdrop. “Having a private cause of action against someone who records your call after a pocket dial may be small consolation if the contents of the call are sufficiently embarrassing,” writes Jonathan Adler, a professor at Case Western University School of Law, in The Washington Post. “So this is a good reminder to lock your phone before putting it in your pocket.”