No Privacy Expectation When Your Phone Pocket-Dials
(July 22, 2015) You have no reasonable expectation of privacy for conversations overheard when you make a pocket-dialed or butt-dialed call.
As a result, the Sixth Circuit partially affirmed the dismissal of a civil case involving the unlawful interception of oral communications under the Omnibus Crime Control and Safe Street Act of 1968.
The chairman of the Kenton County Kentucky Airport Board, which oversees the Cincinnati/Northern Kentucky International Airport, attended a conference in Italy. He tried calling his office back in the United States but the call did not go through, so he put his iPhone in his suit pocket. Then he went out on a balcony to talk to another board member about replacing the airport’s CEO during which time the “iPhone in James’s pocket placed a pocket-dial call” to the defendant’s office. Upon hearing the conversation, the defendant began taking notes and had her assistant help take notes during the 90-minute call. She then reported the contents of the call and gave the notes to other members of the airport board. Near the end of the call, the chairman left the balcony, went to his hotel room, and talked with his wife. Both the chairman and his wife filed suit.
Both the trial court and the appellate court found that the chairman had no expectation of privacy in the call because he took no steps to prevent the phone from pocket-dialing such as using an app designed for that purpose, locking the phone, or setting up a passcode.
“He is no different from the person who exposes in-home activities by leaving drapes open or a webcam on and therefore he has not exhibited an expectation of privacy,” the opinion states. “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.”
The trial court found that his wife also lacked any expectation of privacy because she knew he carried a device that could pocket-dial. The appellate court disagreed and remanded her privacy claim “because 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.”
Finally, the appellate court said that, even though the conversation took place in Italy, the interception was in the United States, so jurisdiction in the United States was proper.
Huff v. Spaw, Sixth Cir. No. 14-5123, issued July 21, 2015.