United States: The “Pocket Dial,” Wiretapping and a Reasonable Expectation of Privacy – Susan Brenner

31 07 2015

Pocket DialThe U.S. Court of Appeals for the 6th Circuit recently issued an interesting opinion in a civil suit:  Huff v. Spaw, 2015 WL 4430466 (2015) [pdf]. The court began its opinion by explaining that “[t]his case requires us to consider whether a person who listens to and subsequently electronically records a conversation from an inadvertent `pocket-dial’ call violates Title III of the Omnibus Crime Control and Safe Street Act of 1968, 18 U.S.C. § 2510 et seq. (`Title III’).”  

In a footnote, the court explains that

[t]he term `pocket-dial’ refers to the accidental placement of a phone call when a person’s cellphone `bump[s] against other objects in a purse, briefcase, or pocket.’ Fed. Communications Commission, Accidental 911 Calls from Wireless Phones Pose Risk to Public Safety, available at http:// http://www.fcc.gov/guides/accidental–911–calls–wireless–phones (last visited June 30, 2015).

The Court of Appeals then explained how, and why, the suit arose:

James Huff was Chairman of the Kenton County, Kentucky, Airport Board (Airport Board), which oversees the Cincinnati/Northern Kentucky International Airport (CVG). In October 2013, he traveled to Bologna, Italy with his wife, Bertha Huff, and with Airport Board Vice Chairman Larry Savage to attend a business conference. Carol Spaw worked at CVG as Senior Executive Assistant to the airport’s CEO, Candace McGraw, and as liaison to the Airport Board. Her work responsibilities included making travel arrangements for board members.

After a conference meeting on October 24, James Huff and Savage went on an outdoor balcony in their hotel to speak about CVG personnel matters, including the possibility of replacing Candace McGraw as CEO. While on the balcony, James Huff tried to call Spaw’s personal cellphone using his iPhone to ask her to make dinner reservations for him and Savage. The call did not connect because James misdialed Spaw’s number. After this unsuccessful attempt, James placed the iPhone in his suit’s breast pocket. Savage then successfully called Spaw’s office phone using his personal cellphone and had her make reservations. After this phone call, Savage and Spaw hung up their respective phones.

Soon thereafter, while James Huff spoke with Savage about CVG personnel matters, the iPhone in James’s suit pocket placed a pocket-dial call to Spaw’s office phone. Spaw answered and could hear James Huff and Savage talking, but she could not understand what they were saying. She said `hello’ several times but got no response. Spaw asked her colleague, Nancy Hill, to help decipher what James Huff and Savage were saying. Spaw then put the phone on speaker mode to enhance the volume and said `hello’ several more times. Within ninety seconds, Spaw and Hill determined that Huff and Savage were discussing McGraw’s employment situation and that the call was not intended for them. Spaw began to take handwritten notes of the conversation and instructed Hill to do the same. Spaw claims that 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 pocket-dial call lasted approximately 91 minutes, during which Spaw listened continuously.

It went on to explain that James Huff and Savage spoke on the hotel balcony about

CVG personnel matters for approximately the first 40 minutes of the pocket-dial call. The two board members then left the balcony to attend a meeting in a conference room. Spaw stayed on the line and asked Hill to obtain an iPhone from the CVG IT Department with which she could record the call. The meeting in the conference room ended approximately 70 minutes into the call. James Huff and Savage left the meeting room and walked back to their respective hotel rooms. Along the way, Spaw heard them talking about innocuous subjects such as their children’s activities, taking a nap, and evening plans. Approximately 75 minutes into the call, James Huff returned to his hotel room where his wife, Bertha Huff, awaited him. In addition to speaking about personal family matters, James and Bertha Huff discussed the contents of James’s earlier conversation with Savage. Spaw used an iPhone obtained from the CVG IT Department to record the final four minutes and 21 seconds of the conversation between the Huffs.

At one point, James Huff noticed that his personal iPhone had an open call with Spaw’s office phone. He mistakenly believed that it had been open for only one minute and twenty-nine seconds, when in reality it had been one hour and twenty-nine minutes. He testified that he immediately terminated the call, but cellphone records indicate that the call lasted one hour and thirty-one minutes. This suggests that he may have left the pocket-dial call open for an additional two minutes after realizing what had occurred.

After the call ended, Spaw converted handwritten notes that she and Hill made into a typewritten summary. She also transferred the iPhone recording to a thumb drive, which she gave to a third-party company to enhance the audio quality. She eventually shared the typewritten summary and the enhanced audio recording with other members of the Airport Board.

The Court of Appeals then outlined the litigation below that resulted in the appeal which was before that court:

On December 3, 2013, Bertha and James Huff filed a Verified Complaint alleging that, inter alia, Spaw violated Title III by intentionally intercepting their oral communications, in violation of 18 U.S. Code § 2511(1)(a); disclosing the contents of intercepted oral communications, in violation of 18 U.S. Code § 2511(1)(c); and using the contents of intercepted oral communications, in violation of 18 U.S. Code § 2511(1)(d). The [U.S. District Court] granted summary judgment to Spaw on January 24, 2014, holding that Title III does not protect the Huffs’ conversations because any expectation that their conversations would not be intercepted was not reasonable under the circumstances. Huff v. Spaw, 995 F.Supp.2d 724 (U.S. District Court for the Eastern District of Kentucky 2014) The Huffs now appeal.

You can, if you are interested, read news reports about the case in the stories you can find herehere and here.

The Court of Appeals began its analysis of the issues on appeal by explaining that

We review a district court’s grant of summary judgment de novoFrazier v. Honda of America Manufacturing, Inc., 431 F.3d 563 (U.S. Court of Appeals for the 6th Circuit 2005). Summary judgment is appropriate where `the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ Federal Rules of Civil Procedure 56(a). The question is `whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ Anderson v. Liberty Lobby, 477 U.S. 242 1986). When ruling on a summary-judgment motion, a court must draw all reasonable inferences from the evidence in favor of the nonmoving party. Matsushita Electric Industrial Co.v. Zenith Radio Corp., 475 U.S. 574 (1986).

Essentially, summary judgment gives courts a way to resolve cases that only present legal issues and therefore do not need to go to trial.

The court prefaced its analysis of whether it was appropriate enter summary judgment in this case by explaining that Title III

makes it unlawful to `intentionally intercept[ ] . . .  any wire, oral, or electronic communication.’ 18 U.S. Code § 2511(1)(a). The act defines `intercept’ to mean “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.’ 18 U.S. Code § 2510(4). Title III further prohibits intentional disclosure or use of `the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of wire, oral, or electronic communication in violation of [Title III].’ 18 U.S. Code § 2511(1)(c), (d). . . .

The court notes, later in the above paragraph, that Title III also creates a private cause of action for those “harmed” by violating its provisions, and that the Huffs are suing under that provision. Huff v. Spaw, supra.

The first issue the Court of Appeals addresses is whether the Huffs’ conversations were

protected under Title III, which covers only wire, oral, or electronic communication as those terms are defined by the statute. In re Askin, 47 F.3d 100 (U.S. Court of Appeals for the 4th Circuit 1995). Title III defines an oral communication for its purposes as `any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.’ 18 U.S. Code § 2510(2). The language makes clear that Congress did not enact Title III to protect every face-to-face conversation from interception.

We have held that a person engages in protected oral communication only if he exhibited `an expectation of privacy that is both subjectively and objectively reasonable.’ Dorris v. Absher, 179 F.3d 420 (U.S. Court of Appeals for the 6th Circuit 1999). This assessment parallels the reasonable-expectation-of-privacy test articulated by Justice Harlan in Katz v. U.S., 389 U.S. 347 (1967). . . . Other courts have also applied Katz’s reasonable-expectation test to assess whether a communication is protected under Title III. See Kee v. City of Rowlett, 247 F.3d 206 (U.S. Court of Appeals for the 5th Circuit2001); U.S. v. Turner, 209 F.3d 1198 (U.S. Court of Appeals for the 10th Circuit 2000); U.S. v. McKinnon, 985 F.2d 525 (U.S. Court of Appeals for the 11th Circuit 1993); U.S. v. McIntyre, 582 F.2d 1221 (U.S. Court of Appeals for the 9th Circuit 1978). . . .

It went on to explain that in

articulating his well-known test, Justice Harlan wrote that, in order to demonstrate a reasonable expectation of privacy,

`[t]here is a two-fold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation [must] be one that society is prepared to recognize as “reasonable.” Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.’

Katz v. U.S., supra (Harlan, J., concurring).

The court then pointed out that courts

generally refer to Katz’s reasonable-expectation test as having a subjective part and an objective part, but the division of labor between these two parts is ill-defined in the Title III context.  Some courts, including ours, limit the subjective part to the issue of whether a person held an internal belief in an expectation of privacy from interception. See Dorris v. Absher, 179 F.3d 420 (U.S. Court of Appeals for the 6th Circuit 1999) (`In the present case, the frank nature of the employees’ conversations makes it obvious that they had a subjective expectation of privacy. After all, no reasonable employee would harshly criticize the boss if the employee thought that the boss was listening.’) (emphasis added); see also U.S. v. McIntyre, supra (`There is no question that McGann had a subjective expectation of privacy . . . [because] he believed normal conversations in his office could not be overheard, even when the doors to his office were open’) (emphases added).

Other courts, including the 10th Circuit in Kee v. City of Rowlett, supra, ask whether plaintiffs `”exhibited a subjective expectation of privacy that [their communications] would remain free from governmental [or private] intrusion’ and whether they ‘took normal precautions to maintain privacy[.]”’ Kee v. City of Rowlett, supra (first alteration in original).  Like Kee, we also ask whether a person exhibited an expectation of privacy, e.g., by taking precaution, but we do so under the objective part of the reasonable-expectation test. The Dorris court, for example, held that the plaintiffs’ expectation of privacy was objectively reasonable because they `took great care to ensure that their conversations remained private.’ Dorris v. Absher, supra.

The question of whether that expectation was reasonable under the circumstances also falls under the objective part of the test. The Dorris court concluded that, because `the entire office in the present case consisted of a single room that could not be accessed without the employees’ knowledge[,] . . . the employees had a reasonable expectation of privacy in their workplace.’ Dorris v. Absher, supra.This approach effectively bifurcates the objective part of the reasonable-expectation test into two subparts. First, did the employees exhibit a (subjective) expectation of privacy by taking precautions? Second, was that expectation objectively reasonable?

The Court of Appeals goes on to explain that the question as to whether someone had

an internal belief in an expectation of privacy—the only aspect of the subjective part under Dorris—is irrelevant because it is subsumed by the exhibited-an-expectation inquiry. If a person lacked an internal belief in privacy, then he would not have exhibited an expectation of privacy and so would fail the reasonable-expectation test. If the person held an internal belief but did not exhibit that belief in an outward manner, he would also fail the reasonable-expectation test due to his inability to satisfy the first objective subpart.

Therefore the only relevant inquiries are the two objective subparts: (1) whether a person exhibited an expectation of privacy and (2) whether that expectation was reasonable. These were the same two relevant inquiries for the Kee court, except that court categorized the first inquiry under the subjective part of the reasonable-expectation test. These two inquires track Title III’s statutory text that first, a person `exhibit[ed] an expectation that such communication is not subject to interception’ and second, `under circumstance justifying such expectation.’ 18 U.S. Code § 2510(2). We therefore bifurcate Katz’s reasonable-expectation test—at least in the Title III context—into these two inquiries.

The court then explained what the Katz v. U.S. inquiries involve:

[T]he first part of the test requires more than an internal belief in privacy. Rather, one must exhibit an intention to keep statements private. A person fails to exhibit an expectation of privacy under the Katz test if he exposes those statements to the “plain view” of outsiders, Katz v. U.S., supra (Harlan, J., concurring), or if he fails to take to steps to prevent exposure to third parties, Kee v. City of Rowlett, supra (plaintiffs did not engage in oral communication under Title III because `they failed to present evidence demonstrating any affirmative steps taken to preserve their privacy,’ and `point to no reasonable safeguards or common-sense precautions taken to preserve their expectation of privacy’). The second part of the Katz test is satisfied if the expectation of privacy exhibited by the person is reasonable under the circumstances. Katz v. U.S., supra (Harlan, J., concurring). The operative question is whether society is prepared to recognize an exhibited expectation as legitimate. . . .It is essential to consider the two-part Katz test with respect to James Huff and Bertha Huff separately.

The court began analysis as to whether James Huff had a reasonable expectation of privacy in the intercepted conversations by explaining that the District Court Judge found

that James Huff `unquestionably did not expect that [his] face-to-face conversations would be intercepted’ for two reasons. Huff v. Spaw, supra. First, he would not have discussed sensitive, Airport-related matters with Savage and with Bertha Huff if he had known that others might be listening. . . .This establishes only that James Huff likely intended his statements to be private, not that he exhibited an expectation of privacy. Second, `[a] significant portion of the intercepted communications took place in two places: a private balcony and a hotel bedroom.’ Huff v. Spaw, supra. While a person generally exhibits an expectation of privacy when he seeks out a private location to speak, if he also exposes his statements to an outsider “no intention to keep them to himself has been exhibited.” Katz v. U.S., supra (Harlan J., concurring). 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. 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. U.S. v. Fisch, 474 F.2d 1071 (U.S. Court of Appeals for the 9th Circuit) (holding that defendants did not exhibit an expectation of privacy to statements that were `audible to the naked ear’ of police in an adjoining hotel room). . . .

The court also explained that at

his deposition, James Huff admitted that he was aware of the risk of making inadvertent pocket-dial calls and had previously made such calls on his cellphone. A number of simple and well-known measures can prevent pocket-dials from occurring. 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 thttp://www.xda-developers.com/android/prevent-unwanted-buttdialing-with-smart-pocket-guard/. . . . James Huff did not employ any of these James Huff failed to exhibit an expectation of privacy, we need not determine whether circumstances justified such an expectation to conclude that his statements do not qualify as oral communications and therefore cannot give rise to liability under Title III.

The Huffs warn that, if we do not recognize James Huff’s reasonable expectation of privacy in this case, we would deprive all cellphone-carrying Americans of their reasonable expectations of privacy in their conversations. . . . We disagree.

Not recognizing James Huff’s expectation would do no more injury to cellphone users’ privacy interests than the injury that the plain-view doctrine inflicts upon homeowners with windows or webcams. A homeowner with an uncovered window or a broadcasting webcam lacks a reasonable expectation of privacy with respect only to viewers looking through the window that he neglected to cover or receiving signals from the webcam he left on. He would retain a reasonable expectation of privacy in his home with respect to other means of observation, for example thermal-imagery devices.  Kyllo v. U.S., 533 U.S. 27 (2001).

Similarly, James Huff retained an expectation of privacy from interception by non-pocket-dial means, such as by a hidden recording device or by someone covertly causing his cellphone to transmit his statements to an eavesdropper. See McCann v. Iroquois Mem’l Hosp., 622 F.3d 745 (U.S. Court of Appeals for the 7th Circuit 2010) (defendant who secretly turns on a plaintiff’s dictaphone to record and acquire the plaintiff’s conversation would be liable under Title III). 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.

The court also analyzed whether Bertha Huff had a reasonable expectation of privacy in the statements she made in her hotel room.  I am not including that analysis here because it is relatively long. You can, if you are interested, read the full opinion here.

Finally, Spaw argued that

even if some of the conversation that she overheard constituted oral communication, she is not liable because her conduct does not qualify as `interception’ under Title III. . . . In Williams v. State, 507 P.2d 1339 (Oklahoma Court of Criminal Appeals 1973), a motel manager answered a phone call from a motel room and heard a `very loud disturbance in the room including cussing fighting and calling each other names.’ Williams v. State, supra.

The manager made a tape recording of the conversation, which was introduced as evidence at the defendant’s trial for the murder of the room’s occupant. . . . The defendant sought to exclude the recording as an unlawful interception under Title III, and the Williams court held that `the defendant has not shown the tape recording in question was the result of an intercept . . . [because] there was no tap on the line or interference with the normal telephone lines.’ Williams v. State, supra. Spaw argues that she `did not mechanically or physically manipulate the line, so no interception occurred.’

The Court of Appeals found that the Oklahoma court erred in assuming that “interference is a prerequisite for interception.”   It explained that while

third-party interference with the phone line was one way to intercept communications, the use of an unaltered phone line without the consent of either party would also qualify as interception. Laughlin v. U.S., 344 F.2d 187 (U.S. Court of Appeals for the D.C. Circuit 1965). . . . Therefore, non-interference with a phone line does not, by itself, prevent an instance of phone-based eavesdropping from qualifying as an interception if the eavesdropping occurred without the consent of at least one party to that conversation, as is the case with the Huffs.

The court also explained that the text Title III

undermines Spaw’s position because the statutory definition for interception contains no reference to an interference requirement. 18U.S. Code § 2510(4). The statute goes on to state that it is unlawful to intentionally intercept oral communications under a variety of conditions, including through the use of a `device [that] transmits communication by radio, or interferes with the transmission of such communication.’ U.S. Code § 2511(1)(b)(ii). The disjunctive use of `or”’ indicates that Title III contemplates using a radio device that does not interfere with radio transmissions to unlawfully intercept oral communications. 

Case law also contradicts Spaw’s interference requirement. In Boddie v. American Broadcasting Company Inc., 731 F.2d 333 (U.S. Court of Appeals for the 6th Circuit 1984), we held that covertly recording a face-to-face conversation could be the basis for unlawful interception under Title III, 731 F.2d at 339, and the Seventh Circuit reached the same conclusion in McCann v. Iroquois Memorial Hospital, 622 F.3d 745 (U.S. Court of Appeals for the 6th Circuit (2010). In neither case did the defendant `interfere’  with a line of communication.

It therefore held that James Huff’s statements

do not qualify as oral communications for Title III purposes because he exposed them to Spaw when he pocket-dialed her, but Bertha Huff’s statements do qualify because she cannot be held responsible for her husband’s pocket-dial. While Spaw intercepted Bertha Huff’s oral communications, the question remains as to whether she did so intentionally through use of a device. Accordingly, we AFFIRM the district court’s judgment as to James Huff, REVERSE the district court’s judgment as to Bertha Huff, and REMAND for further consideration consistent with this opinion.

So, if Bertha Huff decides to pursuit the suit, she will be able to.

This post originally appeared on the Cyb3rCrim3 blog and is reproduced with permission and thanks.


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