Imagine yourself in this situation – you’re having what you think is a private conversation about your plans to terminate an employee. Unbeknownst to you, you have pocket dialed a co-worker of the soon-to-be terminated employee. That employee listens to your conversation – for 91 minutes – puts it on speaker phone, and records part of it. Not a happy feeling when you figure out what happened, is it?
This nightmare situation actually happened – in Huff v. Spaw – and to make matters worse for the pocket-dialer, the 6th Circuit recently held that the pocket-dialer had no expectation of privacy in his pocket-dialed call. Here’s what happened.
James Huff was on a business trip to Italy with his wife, Bertha Huff, and a colleague, Larry Savage. James Huff and Savage were having what they thought was a private conversation about plans to replace the CEO of an organization of which they were both board members. During the conversation, Huff pocket dialed the CEO’s executive assistant, Carol Spaw. Spaw heard Huff and Savage talking but couldn’t understand what they were saying, so she put the call on speaker phone and turned up the volume.
Within 90 seconds Spaw figured out that the call was about the CEO and wasn’t intended for her, but instead of hanging up, she started taking notes, got an iPhone to record part of the call, and stayed on the line for 91 minutes.
About 75 minutes into the call, Huff returned to his hotel room and started talking with his wife, Bertha. Spaw kept listening. Eventually, Huff finally realized that this phone was on and hung up.
James and Bertha Huff sued Spaw for violation of Title III of the Electronic Communications Privacy Act – known as the Wiretap Act. The district court granted summary judgment to Spaw, holding that the Wiretap Act did not protect the Huffs’ conversations because they did not have a reasonable expectation that their conversations would not be recorded.
On appeal, the 6th Circuit affirmed the holding – at least as it relates to James Huff’s claim – but reversed on Bertha Huff’s claim finding that she did have a reasonable expectation of privacy because she was unaware that her husband had exposed their conversation to interception.
In analyzing James Huff’s claim, the court found that pocket dialing is analogous to “leaving the drapes open” at home, or leaving a webcam running – activities that courts have previously found destroy an individual’s reasonable expectation of privacy.
According to the court, “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 [such as locking the phone or using a passcode] 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.”
A sober reminder to us all.
Do you agree with the court’s decision? What about the fact that Spaw didn’t hang up when she realized the call was not intended for her?