Court: You Have No Right To Privacy When You Butt Dial Someone

Today in issues we never thought a court would weigh in on: if you accidentally pocket dial someone, pulling the move we all know as “butt dialing,” don’t expect anything you say during the call you don’t know you’re making to stay private.

The U.S. Court of Appeals for the Sixth Circuit in Kentucky ruled yesterday [PDF] that a person who butt dials another party during a conversation doesn’t have a reasonable expectation of privacy.

This, because everyone knows about such accidental calls and there are a lot of ways to prevent such a thing from happening. That means anyone who happens to be listening in on the call that came in on their phone isn’t violating privacy laws by recording that conversation, the three-judge panel determined.

Why did this issue end up in court? Some quick background, via Courthouse News: James Huff, the former chairman of the Kenton County, Ky. Airport Board — which oversees the Cincinnati/Northern Kentucky International Airport — had sued an executive assistant after she recorded a conversation about board matters.

While at a hotel in Bologna, Italy, he’d tried to call the executive assistant but had the wrong number. He put the phone into his suit pocket, and then accidentally called the right number. Unaware that she was on the line, he had a private conversation with the board’s vice chairman, Larry Savage, about possibly replacing then-CEO Candace McGraw.

Court documents say the assistant answered and could hear the two talking, but couldn’t make out exactly what they were saying. She said “hello” a few times, but no one heard her. At some point she realized what was going on, and said she “believed that she heard James Huff and Savage engaged in a discussion to discriminate unlawfully against McGraw and felt that it was her responsibility to record the conversation and report it through appropriate channels,” the ruling states.

She took notes and recorded a portion of the 91-minute conversation on her iPhone, which continued as Huff later spoke to his wife in their hotel room.

The assistant then took the audio and summary of the conversation to other members of the Airport Board. Huff and his wife sued the assistant in December 2013, charging that she had violated a federal wiretap act that makes it illegal to intercept electronic or oral communications intentionally.

A district court ruled in the assistant’s favor, finding that the Huffs lacked a reasonable expectation of privacy because Huff had placed the call himself. The Huffs then appealed.

In Tuesday’s decision, Judge Danny Boggs noted that butt dialing is akin to keeping your curtains wide open in your home — there’s no rule that says people can’t look inside.

“…[E]xposure need not be deliberate and instead can be the inadvertent product of neglect,” he wrote in the ruling. “Under 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…the doctrine applies to auditory as well as visual information.”

To rub salt in Huff’s wound, the judges cited his own testimony wherein he admitted that not only was he familiar with the idea of the butt dial, he’d done it in the past.

Boggs added that Huff could’ve locked his phone with a passcode or used “one of many downloadable applications that prevent pocket-dial calls,” and yet, he didn’t.

The panel reversed the part of the district court’s decision regarding the wife, finding that she did have a reasonable expectation of privacy while talking to her husband.

“The district court’s holding would logically result in the loss of a reasonable expectation of privacy in face-to-face conversations where one party is aware that a participant in the conversation may have a modern cellphone [sic],” Boggs wrote. “As nearly every participant in a conversation is a potential cellphone [sic] carrier, such a conclusion would dramatically undermine the protection that Title III grants to oral communication.”

Otherwise, the assistant and Huff could’ve conspired to have the phone on and send the conversation with his wife to the assistant. Neither one would’ve violated Title III wiretap act, because no “oral communication” was intercepted.

“But the law does not support this conclusion,” the judge wrote.

It’s worth noting that the phrase “butt dial” isn’t anywhere in the three-judge panel’s decision, except where it cites an article about how to prevent butt dials as an example of what Huff could’ve done:

“These include locking the phone, setting up a passcode, and using one of many downloadable applications that prevent pocket-dials calls, see, e.g., Will Verduzco, “Prevent Unwanted Butt Dialing with Smart Pocket Guard,” xdadevelopers, Apr. 15, 2014, available at http://www.xdadevelopers.com/android/prevent-unwanted-butt-dialing-with-smart-pocket-guard/ (reviewing a smartphone application designed to prevent pocket-dial calls from occurring) (last visited July 8, 2015)

6th Cir. Rules on Privacy of ‘Pocket-Dials’ [CourthouseNews]