Crazy but True: It’s Legal to Listen in on a Pocket Dial

July 28th, 2015. By LucyC

How many times have you answered your phone only to find out that someone has ‘pocket dialed’ you by accident. Suddenly you find yourself privy to a conversation that really is none of your business…but you listen because…heh—you’re human! And you’re wondering the whole time, “could I go to jail for this?” Ok, not really, but you clearly feel like you’re eavesdropping…

Well, the law’s a funny thing, at the risk of stating the obvious. Take the recent case of an executive, one James Huff, who accidentally called his assistant and for the next 90 minutes not only did she listen to the call, she took notes. When Huff found out he sued her but the law ruled in her favor…finding that Huff did know how to prevent this kind of thing from happening and therefore had no expectation of privacy. What? Seriously?

Ok, the backstory, short version—well, shortish—in October 2013, Huff traveled to Bologna, Italy for a work conference along with his wife Bertha, and a colleague. At the time, Huff was chairman of a local board that oversees the Cincinnati/Northern Kentucky International Airport (CVG). At some point on their trip the two men went out onto a hotel balcony to discuss work-related issues and personnel matters. Huff calls his executive assistant Carol Spaw, on her cellphone, to ask her to make dinner reservations. (Wouldn’t an email have been a better idea—on a number of fronts?) The call didn’t go through so Huff calls Spaw on her office phone. All good there. BUT—a few moments later Spaw’s cell phone goes off and low and behold it’s Huff’s phone, which redialed the number and got through. That call was 91 minutes, and Huff was not aware of it—at all.

Spaw listened to the entire conversation (not a busy day I’m guessing) Huff was having with his colleague. Oh—BTW—Spaw realized her boss had no idea he’d redialed her and the call had gone through. Her interest got piqued when she heard the two men discussing the possible replacement of Spaw’s boss. Oh great.

Spaw believed that the conversation illustrated the two men’s attempt to unlawfully discriminate against her boss, and she felt that it was her duty to take handwritten notes of the call. She instructed another colleague to do the same. Wow.

About 70 minutes later the balcony meeting between the two men ended and Huff, still blissfully unaware that his cell phone is broadcasting his every word and deed, goes back to his hotel room and has a conversation with his wife. (Thank god that’s all they had). Huff and his wife discussed the conversation Huff had just had with his colleague and some personal matters as well. Spaw—still on other end back in Kentucky, managed to record the last four minutes of the conversation on an iPhone that was brought to her. She then shared the notes and the recording with other board members. Oh holy sh*tty sh*t sh*t!

Now, I would have thought that Spaw had violated the law but apparently not. Cut to a couple of months down the road and the proverbial sh*t hits the fan back in Kentucky. The Huffs sued Spaw for unlawfully intentionally intercepting the call and disclosing those interceptions, an alleged breach of the 1968 wiretap law known as “Title III.”

Are you sitting down? Spaw won summary judgment in January 2014. Predictably, the Huffs appealed. The District Court in Kentucky found that the Huffs did not have a reasonable expectation of privacy in that circumstance.

The court found that Huff could not sue Spaw for violating a federal wiretap law, largely due to the fact that he was aware of steps that he could have taken to prevent a pocket dial, such as locking the phone, which he failed to do.

“James Huff did not employ any of these measures,” the court concluded. “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.” That seems a little far-fetched to me.

Interestingly, the Sixth Circuit overturned the portion of the suit pertaining specifically to Bertha Huff.

“Because Bertha Huff made statements in the privacy of her hotel room, was not responsible for exposing those statements to an outside audience, and was (until perhaps the final two minutes) unaware of the exposure, she exhibited an expectation of privacy,” the judges found.

The appellate court agreed with the portion of the lawsuit pertaining to James Huff (dismissing it), but it reversed the lower court’s decision and sent back Bertha Huff’s portion for review.

The experts are concerned about this ruling, specifically about the role technology will play in civil liberties violations going forward, and how much onus is placed on the individual to protect their rights to privacy.

Regardless, the bottom line is Huff could have taken less than a minute to lock his phone and the whole thing would never have happened. While technology is changing our lives, we haven’t changed with it and human nature is—well—predictable—most people would probably listen in.

As for the Huffs pursuing any further action, their attorney, Aaron VanderLaan, wrote:  “We have not made a final decision as to seek further review by an en banc panel of the Sixth Circuit, and we are not aware of whether Ms. Spaw will seek further review.”

Now, where’s that lock function on my phone…

This was posted on Tuesday, July 28th, 2015 at 6:28 pm and is filed under Crazy Sh*t Lawyers See . Feel free to respond, or trackback. Read our comments policy.