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.
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First part of two:
Sherry-- thank you for your Verdict column and for your post, both of which I find very insightful and helpful. On the subject of the Sixth Circuit decision, I agree with much of what you say. I am particularly befuddled by the distinction between the husband and wife with respect to whether they exhibited a reasonable expectation of privacy. I also think that the drapes case is a poor analogy to the pocket-dial case. But there is more to be said about this, I think.
I think it is just false that Mr. Huff did not take reasonable precautions against being overheard talking to Mr. Savage on the hotel balcony. These precautions were not salient. But it doesn't follow from the fact that they weren't salient that they did not occur. Mr. Huff tried calling Ms. Spaw, but misdialed. He then put his phone in his pocket. We may reasonably presume that Mr. Huff ended the call that did not reach Ms. Spaw. So when he put his phone back in his pocket, the phone was on but not in a state of call-readiness (for example, it's not that Mr. Huff had correctly dialed Ms. Spaw's number and all that needed to happen was the push of an on-screen button to initiate the call). Bringing the phone back to a steady state in which no calls are being placed or about to be placed, and then placing it in one's pocket (where no one else has access to the phone) is one way to take reasonable steps against being overheard. The relevant question, in other words, is not whether Mr. Huff took reasonable steps to avoid the rare phenomenon of pocket-dialing, but whether Mr. Huff took reasonable steps to avoid being overheard. If we do not make this distinction, then a huge burden ends up being placed on cell-phone users in order to avoid being overheard. For they must basically guard against *any* potential misfiring of the device that leads to an unintended telephone call. The cell-phone user must, we may assume, look into whether there is software that (a) prevents pocket-dialing, (b) prevents the failure of a phone to end a call when the END CALL button is pressed, and more generally (c) prevents any malfunction that leads to the phone's being used as a device to listen in on conversations to which the cell-phone user is a party. This is, to put it mildly, nuts.
The relevant analogy is this. Suppose I draw my drapes to prevent people on the street outside my window from looking into my living room. There is some chance, a very small chance, that if the light falls on the drapes *just so*, it will become possible for a passer-by to see through the drapes. I know of this chance, perhaps, but I disregard it because it is so small that it seems silly to take (or to look into taking) serious precautions to prevent it. One day, the light falls on the drapes *just so*, and a passerby sees me in the living room engaging in some sort of illegal activity.
Second part of two:
Let's contrast the Huff case with the case of Ben, who calls Ms. Spaw and then neglects to press the END CALL button and neglects to turn off his phone. In this sort of case, Ben has, so to speak, opened the drapes, and then taken insufficient steps to close them. So the drapes remain open as a result of his own negligence. In such a case, it seems to me, Ben loses a reasonable expectation of privacy with respect to the contents of his private conversations that are picked up by his phone and transmitted without his knowledge to Ms. Spaw. But the actual Huff case is not like Ben's case, in very relevant respects. Huff (we may presume) didn't forget to end his call with Ms. Spaw, and it is reasonable for him believe that placing his phone in his pocket would prevent unauthorized potential dialees from listening in on his conversations with others.
How far does this decision go? According to the Sixth Circuit, if I now want to guard against my conversations being overheard by a potential dialee who is not in contravention of Title III, I must install an application that prevents pocket-dialing and butt-dialing. But many apps have bugs, and this is something it is reasonable to assume. No application is perfect. So does this mean that I need to look into potential bug fixes for the anti-pocket-and-butt-dialing app? Does it mean that I need to test the app periodically to see if it is still working properly? Does it mean that I need to be super-diligent about running app updates? This seems absurd, and suggests that the Sixth Circuit is just very confused.
I keep thinking about this, and I can't decide how I would resolve this one.
A common device in some parks is a pair of elliptical frames facing each other, such that if someone stands at the focal point of one of the ellipses and another person stands at the focal point of the other ellipsis, the two can speak to each other in whispers and still hear.
Assume that Mr. Huff is having a conversation with Ms. Huff at the focal point of one of the ellipsis, and Ms. Spaw is standing at the other focal point.
Would Ms. Spaw be in violation of the wiretap act with respect to Mr. and Ms. Huff?
What if Mr. Huff had suggested that Mr. and Ms. Huff stand at the focal point, not knowing what it was? Would that change the answer with respect to him?
What if Mr. Huff also suggested that Ms. Spaw wait for him at the other focal point, again not knowing what it was? Would that change the answer with respect to him?
If Ms. Spaw is in violation of the wiretap act, what is she obligated to do or not do in this situation? Is she obligated to move, or not to listen?
In a sense, I see a situation like this in the sixth circuit's decision. They seem to be trying to get to the idea that, at some point, the person whose actions inadvertently cause the transmission of their speech to another person cannot justifiably expect that their communication is not subject to interception. Whether they got it right in this specific instance is a harder call.
Both Prof. Colb and Samuel Rickless are also wise to recognize that this can be a dangerous road to go down, but the sixth circuit is ultimately right to consider this a situation requiring judicial balance, even if I can't decide if I agree with the result.
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