Wednesday, August 19, 2015

Pocket Dialing and Privacy

by Sherry F. Colb

My Verdict column for this week considers a case from the U.S. Court of Appeals for the Sixth Circuit, Huff v. Spaw, in which the court held that a person who inadvertently pocket dials a third party retains no "reasonable expectation of privacy" (under the federal Wiretap Act) from the third party's listening to the person's conversations picked up by the cellphone (and therefore by the third party) for 90 minutes.  The court's reason for this aspect of its ruling is that people can protect against the pocket dialing phenomenon and accordingly assume the risk of such disclosure if they fail to take the proper self-protective measures.  In my column, I discuss some of the problems inherent in deciding the case in the way that the Sixth Circuit did.

Here I want to consider one downside of coming out the other way and holding a third party to have violated the privacy of the person whose telephone pocket dialed the third party:  it asks people to fight the very strong force of their curiosity.

When my younger daughter was an infant over 10 years ago, I had a baby monitor that I used to ensure that she was safe when she was in her room alone for a nap or for a night of (constantly interrupted) sleep.  One day, when my daughter was out on the town with her babysitter and her in-the-room monitor was turned off, I suddenly noticed sound coming out of the receiver of the monitor (which was on).  I at first wondered what was going on, since my daughter was not home and the monitor therefore could not be broadcasting her.  I quickly realized, however, that what I was hearing was the sound of one of my neighbors talking on the telephone with her friend (though I could not hear her friend's voice).  I was curious about my neighbor, so I listened for a few minutes.  Nothing of note was said, though, and I eventually grew bored and stopped listening.

But what if she had said something relevant to me?  What if she had said something about me or some member of my family?  Or what if she had simply told a scandalous tale about herself or someone else in our building? I almost certainly would have continued to listen until I had learned everything I wanted to know about how her life intersected with mine and what she thought of my family.  Given what a social species humans are, it is hardly surprising that it would have been difficult for me to turn off the monitor if it was providing me with relevant information about my life. According to some, gossip is an evolutionarily hard-wired activity in humans.

Saying this does not, of course, excuse invasions of privacy.  Nonetheless, if one of us suddenly becomes privy, without any wrongdoing on our part, to someone else's secret information that may concern us (or that may have value on the "gossip" market), it is a tall order to suggest that we must actively stop the information from coming our way, by either hanging up on a call we did not initiate or by turning off a baby monitor receiver.  Most of us can understand the temptation to keep listening. And to say that listening to a pocket dial invades a reasonable expectation of privacy under the Wiretap Act is to say that the recipient of the call is potentially liable in a lawsuit for listening to an uninvited surprise communication that makes its way into the recipient's ear.

At the same time, the fact that listening is so tempting in these situations may be exactly why it should be unlawful.  The law need not prohibit us from doing something we have no desire to do, and likewise, the more drawn we are to doing something that invades the privacy of others, the more we arguably ought to be using the law's sanction to deter such behavior.  And perhaps more importantly, it may be difficult to tell the difference between an innocent receipt of a pocket dial and a deliberate intrusion on privacy coming from the third party.  To the extent that the Wiretap Act prohibits the latter explicitly, it may avoid problems of proof to extend that prohibition to the (relatively unusual) case of the pocket dial that happens to land on a third party whose knowledge of the exposed matters could be harmful to the pocket-dialer.