A US court of appeals has ruled that phone calls started by accident in your pocket – so-called butt dialing – can be lawfully recorded.
The Ohio Sixth Circuit appeals court found in favor [PDF] of a woman who recorded the conversations of a colleague who had unknowingly dialed her number before entering a meeting.
James Harold Huff accused Carol Spaw of invading his privacy when she recorded 90 minutes of his conversations after he had mistakenly dialed her number. Huff is the chairman of the board of directors for the Kenton County Airport Board in Kentucky, US. He was at a business conference in Italy when the pocket dial (possibly butt dial, court records don't specify) connected his phone with Spaw back in America.
Huff proceeded to have a conversation in a public area with another board member about replacing the airport's CEO Candace McGraw. He then returned to his hotel room, still on the line with Spaw, to have a conversation with his wife.
All of this was monitored and partially recorded by Spaw, who then presented both the notes and audio recording to other members of the board, claiming that Huff and the other board member were discriminating against McGraw.
Huff filed a lawsuit against Spaw, claiming she unlawfully recorded a private conversation. That argument was shot down by a district court that ruled in favor of Spaw. Huff took the matter to the appeals court in Ohio, which this week upheld the decision – finding that even if the call was unintentional, Huff waived his right to privacy when his phone dialed Spaw.
Expectation of privacy?
"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," the appeal court ruled on Tuesday.
"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 appeals court did, however, overturn the district court ruling against Huff's wife Bertha, with whom he had the second of his two recorded conversations.
The panel of three judges found that she had the right to expect privacy because she was not aware that her husband had pocket-dialed Spaw, and because their conversation was in a closed hotel room where one could expect privacy.
"This does not necessarily mean that Spaw is liable, because Title III imposes liability only when a person 'intentionally' uses a 'device' to intercept oral communications," the judges wrote. The appeal panel said the district court will have to calculate any damages owed by Spaw to Mrs Huff.
"We leave to the district court to consider on remand whether any of Spaw's actions, including (1) answering the phone, (2) turning up the volume, (3) transcribing notes, and (4) making an electronic recording, constituted an 'intentional use of a device' to intercept Bertha Huff's oral communications," the judges ruled.
In short, the appeals court found that if you pocket dial someone, you forfeit your right to privacy, but if you are speaking in private with someone who has placed a butt dial, you should still expect privacy (but may not have the right to collect damages).
The moral of the story: always lock your phone before stashing it, lest you incur a hefty long-distance charge and a business headache. ®