Author: Matthew Byrnes, Associate Member, University of Cincinnati Law Review
Although many people have suffered from the potentially humiliating consequences of a so-called “butt-dial” or “pocket-dial,” it is likely that few, if any, have ever sought civil damages against the recipient. That is, until Jim Huff, chairman of the Kenton County Airport Board and his wife, Bertha, filed suit against Carol Spaw, a secretary at the airport, for receiving, recording and disclosing conversations she overheard when Mr. Huff placed a pocket-dial to her desk phone. U.S. District Court Judge David L. Bunning dismissed the lawsuit on the grounds that the Huffs lacked an objectively reasonable expectation of privacy and the Huffs have filed an appeal.[i] The case is likely one of first impression with ramifications that extend well beyond the civil context. For example, many individuals have been arrested after placing pocket-dials to 911 while discussing or in the commission of criminal acts.[ii] If an objectively reasonable expectation of privacy were to be found, this evidence would have to be suppressed under Title III’s exclusionary rule.[iii] But despite the novelty of the issue and circumstances, the history of Title III and its application in both civil and criminal contexts support dismissal of pocket-dial based claims.
Title III’s Balancing Act
According to the Huffs, Ms. Spaw unlawfully intercepted, recorded, and disclosed the pocket-dial conversations in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III). The primary purpose of Title III is to provide more effective means for combating crime in the United States while seeking to protect the privacy of certain types of communications.[iv] That goal is achieved by allowing law enforcement to use electronic surveillance, but only when Title III warrant requirements are met.[v] Additionally, Title III makes it unlawful for any person to “intentionally intercept…any wire, oral, or electronic communication,” and provides a private right of action for those claiming to have been injured by such an unlawful interception.[vi] However, an oral communication is only protected when the participants can show (1) a subjective expectation that their conversation will not be intercepted and (2) that expectation is objectively reasonable.[vii] Importantly, the District Court in Huff held that the Huffs were engaging in an “oral communication” as opposed to a “wire communication.”[viii]
The Huffs’ Expectation of Privacy
Based upon the private nature of the topics discussed and the areas in which the conversations took place, the court found it was clear that the Huffs had a subjective expectation that electronic devices would not intercept their conversations. The discussions occurred in areas including hotel room and on a private balcony.[ix] The topics ranged anywhere from “innocuous subjects such as gospel music” to “private Airport personnel matters, including possibly replacing the CEO[.]”[x] It was the second requirement of Title III—the objectively reasonable expectation—that proved to be less straightforward and central to the disposition of the case.
Under this second requirement, the Huffs had to show that their expectation of privacy was objectively reasonable, one that society is willing to recognize as legitimate.[xi] In other words, was it reasonable for the Huffs to expect that Ms. Spaw would not answer the pocket-dial, remain on the line, listen to the conversation, and record a portion of it?
In holding that the Huffs did not have an objectively reasonable expectation of privacy, the District Court cited two key facts in the absence of any supporting precedent. First, the Huffs agreed they had placed pocket-dials in the past, an action that is widely recognized in society and properly supported by reference to popular websites like Wikipedia and Urban Dictionary.[xii] Knowing they were in possession of a cell phone capable of causing a pocket dial, they could have locked their phone or taken some other measure to prevent that from happening.[xiii] Second, Ms. Spaw merely answered the phone when it rang, rather than actually seeking out ways in which she could intercept the conversation.[xiv] The District Court was correct in holding that the Huffs lacked any objectively reasonable expectation of privacy, but further investigation into whether there is supporting precedent is warranted and it is likely to be of contention on appeal.
Title III’s History with Cordless Telephones
Although there is little, if any, precedent regarding pocket-dials under Title III claims, there is one Title III context analogous to this situation; the treatment of cordless telephones. Although some of these cases involve criminal charges, for purposes of Title III wiretapping, “this is a distinction without a difference” because the analysis regarding privacy is the same.[xv]
In 1986, Congress passed the Electronic Communications Privacy Act that amended Title III to expressly exclude “the radio portion of a cordless telephone that is transmitted between the…handset and base unit” from the definition of a “wire communication.”[xvi] Congress felt that because these communications could be easily intercepted by readily available technologies, like an AM radio, it would be inappropriate to make the interception a criminal offense.[xvii]
With this in mind, the Sixth Circuit in McKamey v. Roach held that the use of a scanner to intercept a neighbor’s cordless telephone conversation, even when a land-line phone was used on the other end, did not violate Title III because of the “wire communication” exception.[xviii] Even if viewed as an “oral communication” the court believed there could be no reasonable expectation of privacy for cordless phone users because the communication was broadcasted over the radio waves “to all who wish[ed] to overhear.”[xix] The court also noted that the owner’s manual for the phone explicitly warned owners that this issue could occur.[xx] In State v. Howard, the Supreme Court of Kansas held that cordless phone conversations were “oral communications” and therefore subject to the requisite privacy test.[xxi] Like McKamey, the court in Howard found the defendants lacked any reasonable expectation of privacy, in part because “as owners of the cordless telephone had been fully advised by the owner’s manual as to the nature of the equipment.”[xxii]
As time progressed however, technological advancements helped remedy the interception issue.[xxiii] Therefore, in 1994, Congress eliminated the cordless phone exception, granting protection to cordless telephone conversations under Title III.[xxiv]
Today’s Pocket-Dial is Yesterday’s Cordless Phone
Today’s pocket-dial is the technological equivalent of the pre-1994 cordless phone. Cordless phones went unprotected during that time because technological flaws made the conversations easily accessible. McKamey and Howard are prime examples of why these flaws refuted any reasonable expectation of privacy. Cordless phones openly broadcasted radio signals between the base and receiver. Inadvertent interception of the signals was commonplace; a neighbor down the street could simply be trying to listen to the radio and accidently tune-in to the conversation. Even more, cordless phone users knew this could occur, either by experience, word-of-mouth, or by consulting the owner’s manual. All of this can be said for cellphones.
The Huffs knew they were in possession of a device capable of making a pocket-dial by virtue of its technological flaws, flaws that very well could have been included in the owner’s manual; flaws that also could have been avoided by locking the phone or turning it off. But most importantly, like cordless phones prior to 1994, these are flaws that are widely recognized and anticipated by society. Any contrary holding would disregard the importance of what is truly objectively reasonable by transforming innocent listeners into criminal wire-tappers.
Reversal on appeal would have severe consequences in the civil and criminal contexts that cannot be ignored. For civilians like Ms. Spaw who answer an incoming butt-dial or relay to others what they heard, they would be susceptible to civil damages. For police officers, a 911 butt-dial containing crucial evidence of a crime would be inadmissible at trial. Knowing a butt-dial could occur, a reasonable person in possession of a cell phone undertakes the risk of placing a butt-dial. The onus is on that person, not the recipient, to avoid the situation entirely or suffer the consequences. Absent future technological advancement that can almost completely prevent a butt-dial from occurring, it would be unreasonable to find any expectation of privacy in this context.
[i] Huff et al. v. Spaw, No. 2:13-cv-00212-DLB-JGW (E.D. KY Jan. 24, 2014), appeal docketed, No. 14-5123 (6th Cir. Feb. 4, 2014).
[ii] A simple Google search will reveal countless news stories covering these situations. According to one report, for every 100 calls made to 911 in 2012, about 40 were accidental, “likely coming from someone’s purse or pocket.” Butt Dials Overwhelm 911 Call Centers: Report, Huffington Post, Oct. 10, 2012, http://www.huffingtonpost.com/2012/10/10/butt-dialing-overwhelming-911-call-centers-_n_1954420.html
[iii] 18 U.S.C.S. § 2515 (LexisNexis 2014).
[iv] United States v. Underhill, 813 F.2d 105, 110 (6th Cir. 1987); Huff at 8.
[v] See 18 U.S.C.S. § 2516 (LexisNexis 2014) (providing detailed procedures in which authorization must be sought from a Federal judge to intercept wire, oral, and electronic communications).
[vi] 18 U.S.C.S. § 2511(1)(a) (LexisNexis 2014). See 18 U.S.C.S. § 2520 (LexisNexis 2014).
[vii] Dorris v. Absher, 179 F.3d 420, 425 (6th Cir. 1999).
[viii] See Huff at 11- 17
[ix] Huff at 12.
[x] Huff at 5 and 12.
[xi] Dorris v. Absher, 179 F.3d 420, 425 (6th Cir. 1999).
[xii] Huff at 13.
[xiii] Huff at 17.
[xiv] Huff at 16.
[xv] McKamey v. Roach, 55 F.3d 1236, 1239 (6th Cir. 1995).
[xvi] 18 U.S.C. § 2510(1) (1988).
[xvii] S. Rep. No. 541, 99th Cong., 2d Sess. 12 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3566.
[xviii] See 55 F.3d 1236 (6th Cir. 1995)
[xix] Id. at 1239-1240.
[xxi] See 235 Kan. 236 (Kan. 1984).
[xxii] Id. at 249.
[xxiii] Price v. Turner, 260 F.3d 1144, 1148 (9th Cir. 2001).
[xxiv] See H.R. Rep. 103-827 (1994), reprinted in 1994 U.S.C.C.A.N. 3489, 3490, 3497-98, 3510 (Concluding “that continued change in the telecommunications industry deserves legislative attention to preserve the balance sought in 1968 and 1986 … namely, the goal of ensuring that the telecommunications industry was not hindered in the rapid development and deployment of the new services and technologies that continue to benefit and revolutionize society”); see also U.S. v. Smith, 978 F.2d 171, 178-180 (5th Cir. 1992).