In a move that may strike fear into the hearts of mobile phone owners everywhere, the Sixth Circuit recently ruled that a person’s “pocket dials” – those inadvertent calls made from a person’s mobile phone, generally when the phone is in its owner’s pocket, and alternatively referred to as “butt dials” – may not be entitled to an expectation of privacy.
The facts of the case read like a nightmare scenario for those many mobile phone owners who already live in fear of making an accidental call to the wrong person at the wrong time. The plaintiff was the Chairman of the Kenton County, Kentucky Airport Board. While on a business trip to Italy, he inadvertently “pocket dialed” his colleague, the Senior Executive Assistant to the CEO of the Cincinnati/Northern Kentucky International Airport. During the 91-minute pocket dial, the Chairman and a colleague discussed personnel matters, including whether or not to replace the airport CEO. Meanwhile, the assistant listened to and even recorded part of the call, and took notes on what was being discussed. The assistant later argued that she believed she heard the Chairman and his colleague conspiring to engage in unlawful discrimination against the CEO, and felt obligated to take notes to document the conversation in order to report it. The assistant subsequently shared her notes and the audio of the call with the other members of the Airport Board.
The Chairman and his wife (who spoke to the Chairman for part of the pocket dial and therefore was overheard by the assistant) then filed a complaint against the assistant, alleging that she had violated Title III of the Omnibus Crime Control and Safe Street Act of 1968, 18 U.S.C. § 2510 et seq. (also known as the Wiretap Act). The Wiretap Act forbids the intentional interception of “any wire, oral, or electronic communication.” 18 U.S.C. § 2511(1)(a). It also prohibits a person’s intentional disclosure or use of “the contents of any wire, oral, or electronic communication” when a person knows or has reason to know “that the information was obtained through the interception of a wire, oral, or electronic communication.” 18 U.S.C. § 2511(1)(c)-(d).
However, the Sixth Circuit ultimately agreed with the district court that the Chairman’s pocket dial was not an “oral communication” as defined by the Wiretap Act, and therefore fell outside the scope of the Act’s protection. The court began its analysis by citing to one of its earlier decisions in which it had held that in order to qualify as an “oral communication,” a person must exhibit “an expectation of privacy that is both subjectively and objectively reasonable,” which is similar to the “reasonable expectation of privacy” test set out by the Supreme Court in Katz v. United States, 389 U.S. 347 (1967). The court further distilled its test into two components: “(1) whether a person exhibited an expectation of privacy and (2) whether that expectation was reasonable.” Since the Chairman effectively exposed his statements to a third party via the pocket dial, the court found that he did not exhibit an expectation of privacy, and clarified that “[e]xposure need not be deliberate and instead can be the inadvertent product of neglect.” The court went on to note that the Chairman could have taken any one of a number of steps to prevent exposure, such as by installing an app that prevents pocket dials. However, since he had not installed any such app, the court found that he was “no different from the person who exposes in-home activities by leaving drapes open or a webcam on and therefore has not exhibited an expectation of privacy.” Having decided that the Chairman had not exhibited an expectation of privacy, the court did not have to consider whether any such expectation was reasonable, and ruled that the Chairman’s statements fell outside the protection of the Wiretap Act.
Notably, however, the Sixth Circuit reversed the district court’s holding that the Chairman’s wife did not exhibit an expectation of privacy, reasoning that “her awareness that her husband may have been carrying an interception-capable device … did not displace her expectation of privacy.” The Sixth Circuit remanded the case to the district court to determine whether the assistant’s actions qualified as “intentional use of a device” to intercept the Chairman’s wife’s oral communications.
In so holding, the Sixth Circuit underscored the premise that a person can lose his or her claim to an expectation of privacy through inadvertent exposure, even if that person is completely unaware of that exposure while it is happening. Though a person who leaves his or her drapes open presumably would see and be aware that the drapes are open, thereby exposing his or her activity to the outside world, the same cannot necessarily be said of a cell phone that dials a person’s colleague because it is bumped by another object while in a person’s pocket. The Sixth Circuit’s holding therefore serves as a lesson many cell phone users already have learned the hard way: beware the dreaded pocket dial.