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Dinner reservations gone bad: No expectation of privacy in contents of butt-dialed cell phone call

July 30th, 2015  |  Joy Waltemath

It was October, it was Italy, on an outdoor balcony at the hotel where two U.S. executives, the chairman and vice chairman of a state airport board, were staying for a business conference, and it was time to think about dinner. Naturally, the chairman called the airport CEO’s executive assistant—back in Kentucky—to ask her to make them dinner reservations.

What’s wrong with the hotel concierge, people? Think of the problems that could have been avoided here.

Dinner reservations. His first attempt to call her personal cell phone with his did not go through, so the chairman put his cell phone back in his suit pocket. The vice chairman then successfully called her office phone from his cell phone and had her make reservations; they hung up. But unbeknownst to the chairman, his cell phone then pocket-dialed (or butt-dialed, to use the more familiar vernacular) the executive assistant’s office phone. She answered, but they did not hear her. She asked her colleague to listen as well, and within mere minutes, it was clear to the two women back in Kentucky that the board members were discussing the possibility of replacing the female CEO—the executive assistant’s boss.

Plan to discriminate? Guess what? She didn’t hang up. In fact, she listened for 91 minutes; she made extensive notes of the conversation; she even recorded part of it on another company-owned iPhone. Believing that the overheard conversation revealed a plan to unlawfully discriminate against the CEO, the executive assistant turned over her typewritten notes and an enhanced audio recording of a portion of the call to the airport board.

Reasonable expectation of privacy. When the chairman and his wife later sued, claiming the executive assistant had intentionally intercepted their oral communications in violation of Title III of the Omnibus Crime Control and Safe Street Act of 1968, the district court granted summary judgment for the executive assistant, reasoning that because he had placed the pocket-dialed call, the chairman and his wife lacked a reasonable expectation that their conversations would not be intercepted, which is a prerequisite for protection under Title III.

Intention vs. expectation. Essentially the Sixth Circuit agreed, in Huff v. Spaw, a July 2015 case, although for a different reason. The district court said the chairman would not have discussed sensitive, airport-related matters with either the vice chairman or his wife if he had known that others might be listening. But that established only that he intended his statements to be private, not that he exhibited an expectation of privacy, stressed the appeals court. Nor was the fact that he spoke on a private balcony (and later in his hotel bedroom) dispositive because he had “exposed his statements to an outsider.”

Inadvertent disclosure. And just how did he expose his statements? He placed the pocket-dialed call to the executive assistant, even though he did so inadvertently. Exposure need not be deliberate, explained the appeals court; it can be the inadvertent product of neglect, including via neglectful use of his cell phone.

Remember cordless phones? (Some of you do.) In the past, courts found plaintiffs had no reasonable expectation of privacy in their cordless-phone conversations because “cordless telephone communications are broadcast over the radio waves to all who wish to overhear,” and they knew or should have known of this risk because the owner’s manual provided an explicit warning.

This was the same thing. Here, the chairman admitted he was aware of the risk of making inadvertent pocket-dial calls; he had made them before. Plus, a number of simple and well-known measures can prevent pocket-dials from occurring, the court observed, including locking the phone, setting up a passcode, and using one of many downloadable applications that prevent pocket-dials calls. The chairman’s risk of pocket-dialed calls was “no different from the person who exposes in-home activities by leaving drapes open or a webcam on,” so the appeals concluded he had not exhibited an expectation of privacy.

Training opportunity? There are just so many ways this could go badly if all of us are expected to go around locking our phones before we put them aside or away—or kiss our expectations of privacy good-bye. It would be prudent, nonetheless, for corporate or employment counsel to advise their clients, especially those whose conversations wander frequently into confidential matters, that they must “take simple and well-known measures” to protect themselves from inadvertently butt-dialed calls.

Especially executives who cannot make their own dinner reservations.