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No Reasonable Expectation of Privacy With a Pocket-Dialed Call


Huff v. Spaw - Sixth Circuit Court of Appeals


Facts:  James Huff ("Huff") was Chairman of the Kenton County, Kentucky Airport Board.  While attending a business conference in Italy, he inadvertently placed a pocket-dialed call to Carol Spaw ("Spaw"), a Senior Executive Assistant to the airport's CEO, Candace McGraw ("McGraw").  Shaw could hear Huff talking with Larry Savage, the Airport's Vice Chairman, talking about the possibility of replacing McGraw as CEO.  Spaw and another colleague said "hello" several times but got no response.  Both Spaw and her colleague began to take notes of the conversation and even recorded a portion of the call after Spaw claimed that she heard Huff and Savage engage in a discussion to discriminate against McGraw.  The pocket-dialed call lasted approximately 91 minutes.  Spaw then turned over her typewritten report of the phone call and the audio recording to other members of the Airport Board.

Huff later filed a complaint and alleged Spaw violated Title III of the Omnibus Crime Control and Safe Street Act of 1968 by intentionally intercepting the telephone call and disclosing the contents of the call.  The district court granted summary judgment in favor of Spaw and held that Title III does not protect the phone conversation because any expectation that their conversation would not be intercepted was not reasonable under the circumstances.

Holding:  The Court of Appeals first looked at whether Huff had an expectation of privacy that would be both subjectively and objectively reasonable.  In this instance, the Court pointed to the fact that a person fails to exhibit an expectation of privacy if he exposes those statements (in this case, the phone call) to the "plain view" of outsiders, or if he fails to take steps to prevent exposure to third parties.  

Although Huff intended for his conversation to be private, the Court noted that Huff failed to take steps to protect his conversation.  In reliance upon caselaw which holds that a party loses an expectation of privacy when they leave their blinds open (and allow police, bystanders, etc. to see inside), the Court held that Huff failed to password protect or lock his phone.  As a result, the Court held that Huff's failure to take precautions to protect his conversations that could be intercepted via his phone, he had not reasonable expectation of privacy.

Judgment:  The Sixth Circuit Court of Appeals affirmed the lower court's granting of summary judgment in favor of Spaw as to James Huff's Title III claims.  As a result of Huff's failure to take precautions to protect his conversations, the Court held that he had no reasonable expectation of privacy.

The Takeaway:  Employers and employees alike, take note of this case!  As the Court pointed out, a person loses a reasonable expectation of privacy if steps are not taken to protect the privacy of a conversation.  Even in this case, where the conversation occurred out of the country and was "mistakenly" intercepted by another employee by way of a pocket-dialed call, that does not mean there is an actionable claim.  The Court's reliance upon the fact that Huff could have taken steps to protect his conversation, yet failed to, is they key point to focus on.  Failure to take steps to protect the privacy of a conversation could prove to be fatal...as it makes it very difficult to prove the existence of a reasonable expectation of privacy in regard to the conversation.

Majority Opinion Judge:  Judge Boggs

Date:  July 21, 2015

Opinion:  www.ca6.uscourts.gov/opinions.pdf/15a0157p-06.pdf

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