There is no expectation of privacy for pocket-dialed conversations, the Sixth Circuit holds

UnknownOn July 21, 2015, the Sixth Circuit Court of Appeals held that pocket-dialed conversations happening because the person operating the device fails to take simple precautions to prevent such exposure cannot be considered private.

In this case, Mr. Huff – Chairman of the Kenton County, Kentucky (CVG), Airport Board – inadvertently placed a pocket-dialed call to Ms. Spaw, Senior Executive Assistant to the airport’s CEO.

Mr. Huff was on a business trip with his wife and, while on their hotel balcony, they spoke about CVG personnel matters, including the possibility of replacing the CEO. Ms. Spaw stayed on the line for 91 minutes and listened to the conversations carried out. She later transcribed what she heard and used an iPhone to record a portion of the conversation. Mr. Huff and his wife brought suit against Ms. Spaw for intentionally intercepting their private conversations, in violation of Title III of the Omnibus Crime Control and Safe Street Act of 1968, 18 U.S.C. § 2510 et seq. (Title III).

The district court granted summary judgment for Spaw on the ground that, because Huff placed the pocket-dialed call, he lacked a reasonable expectation that his conversation would not be intercepted, which is a prerequisite for protection under Title III.

Mr. Huff appealed the decision. TheSixth Circuit was to consider whether a person who listens to and subsequently electronically records a conversation from an inadvertent “pocket-dialed” call violates Title III.

The Sixth Circuit affirmed in part, reversed in part, and remanded for further proceedings.

Because James Huff placed the pocket-dial call to Spaw, he exposed his statements to her and therefore failed to exhibit an expectation of privacy with respect to those statements… Exposure need not be deliberate and instead can be the inadvertent product of neglect.

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-dial call that he placed. In sum, 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”.

 Since Mr. Huff exposed his statements to Ms. Spaw when he pocket-dialed her, the conversation does not qualify as oral communication for Title III purposes. However, the Court reversed the district court’s judgment as to Huff’s wife. Her statements do qualify for Title III purposes because she cannot be held responsible for her husband’s pocket-dial. The question remains as to whether she did so intentionally through use of a device. Accordingly, the Court remanded for further consideration consistent with this opinion.

Huff v. Spaw, 2015 WL 4430466 (2015) is available at…                Open Pdf

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For more info, Francesca Giannoni-Crystal

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