Is there a reasonable expectation of privacy when you "pocket-dial" someone?

|The Volokh Conspiracy |

(Bigstock)
(Bigstock)

Ever get a call when a friend accidentally dialed your number from their pocket? Ever make the mistake yourself: "pocket-dialing" (aka "butt-dialing") a friend? Such calls can be annoying when you are on the receiving end, and potentially exposing when you're the one making the call. (My teenage daughter can attest to the latter after one accidental call to her mother when she was out with her friends.)

As a legal matter, does someone who pocket dials an acquaintance have a reasonable expectation of privacy in the content of the call? Does the recipient of such a call violate laws against intercepting electronic communications if they stay on the line and record its contents?

The U.S. Court of Appeals for the Sixth Circuit confronted some of these questions in Huff v. Spaw. Here's the court's brief summary of the case:

This case requires us to consider whether a person who listens to and subsequently electronically records a conversation from an inadvertent "pocket-dial" call violates Title III of the Omnibus Crime Control and Safe Street Act of 1968, 18 U.S.C. § 2510 et seq. (Title III). James Huff inadvertently placed a pocket-dial call to Carol Spaw while he was on a business trip in Italy. Spaw stayed on the line for 91 minutes and listened to face-to-face conversations that James Huff had with Larry Savage, James's colleague, and with Bertha Huff, James's wife. Spaw transcribed what she heard and used an iPhone to record a portion of theconversation between James and Bertha Huff (the Huffs). The Huffs brought suit against Spaw for intentionally intercepting their private conversations, in violation of Title III.

The relevant statute ("Title III") make it unlawful t0 "intentionally intercept[] . . . any wire, oral, or electronic communication." For purposes of this provision, "intercept" means "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device," and a covered communication consists o "any oral communication uttered by a person exhibiting an
expectation that such communication is not subject to interception under circumstances justifying such expectation." Title III also makes it unlawful to intentionally disclose the contents of a communication that was unlawfully intercepted.

The question for the court in Huff was whether Spaw's action constituted unlawful interception of Huff's communications, even though it was Huff—and not Spaw—who initiated the call. This aspect of the case was key to the Sixth Circuit, which concluded Huff could not have a reasonable expectation of privacy in his conversation because he exposed his communication to Spaw by calling her, even if he did so inadvertently.

The same could not be said for Huff's wife, however, as she did not make the call, and did have a reasonable expectation of privacy in her conversation with her husband. On this basis, the Sixth Circuit concluded that Huff's wife might have a claim (assuming the other statutory requirements were met).

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.