A recent federal court decision about accidental cellphone dialing, known popularly as “butt dialing,” raises some interesting privacy issues that could affect millions of people.
According to the Pew Research Institute, nearly two-thirds of Americans now own a smartphone. And while apps and safeguards exist to make it really difficult for users to make accidental calls – triggered by a body part – pocket calls or butt calls remain as a fact of life for a lot of cellphone users.
In some cases, butt calls have legal implications. For example, folks engaged in alleged criminal activity have been known to call 9-1-1 numbers by accident. And then there is the general nuisance of people who frequently butt dial 9-1-1 numbers, who are totally unaware that they are clogging up vital services.
But in a Cincinnati courtroom last week, federal Judge Danny Boggs from the Sixth Circuit Appeals Court issued his opinion about two questions related to pocket dialing.
The first question was about the legality of documenting and recording an “accidental” call when the caller isn’t aware their phone is active, and that person is involved in a conversation when the call is made. The second question was about recording inadvertent phone calls when a third-party enters a hotel room and starts talking – totally unaware that there is a “live phone” in the room.
Many media outlets reported Boggs’s answer to the first question and not as many reported the answer to the second question.
In his opinion in Huff v. Spaw, Boggs said that James Huff, an airport board official, didn’t have a privacy claim against Carol Spaw, a liaison to the board. Huff called Spaw by accident while on a business trip and while he was in a conversation with a second person; Spaw told Huff on the phone that he was calling her by accident, but he didn’t hear Spaw. She then realized Huff was in a conversation with another executive about the employment status of the board’s CEO, and she started taking notes. Huff then had a conversation with his wife, Bertha Huff, in a hotel room, which Spaw recorded with an iPhone, and that conversation included a recap of his prior conversation about the CEO.
Spaw shared her notes and the audio with other airport board members, saying she believed Huff was illegally discriminating against the CEO. The Huffs then sued, but a lower court ruled for Spaw, say that the Huffs didn’t have a reasonable expectation of privacy since James Huff initiated the call.
Boggs said Huff had an obligation to secure his phone. “A person exposes his activities and statements, thereby failing to exhibit an expectation of privacy, if he inadvertently shares his activities and statements through neglectful use of a common telecommunication device,” he said.
“Under the plain-view doctrine, if a homeowner neglects to cover a window with drapes, he would lose his reasonable expectation of privacy with respect to a viewer looking into the window from outside of his property…the doctrine applies to auditory as well as visual information,” Boggs added.
But on the second question, Boggs didn’t agree with the lower court. Boggs said Bertha Huff had a reasonable expectation of privacy since her part of the conversation was in her hotel room and she didn’t make the call to Spaw. Boggs remanded that part of case to the lower court to reconsider.
Among the legal experts, Jonathan Adler from Case Western University, noted that decision was an important reminder for everyone to lock their phones or use an app to prevent butt dialing.
“Having a private cause of action against someone who records your call after a pocket dial may be small consolation if the contents of the call are sufficiently embarrassing. So this is a good reminder to lock your phone before putting it in your pocket,” Adler said.
But the tech website ArsTechnica talked to some other legal experts who had different concerns about the decision.
Fred H. Cate from Indiana University told ArsTechnica that the decision seemed "nonsensical" because it “reflects how far removed the constitutional law of privacy has become from common sense and the expectations of ordinary people."
A former federal judge, Brian Owsley, told the website that a contributing factor was that James Huff said in court that he had pocket dialed people several other times before the incident with Spaw.
In his decision, Boggs again pointed out Huff’s failure to secure the phone was akin to leaving his drapes open.
“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,” Boggs said.
