Have you ever sat down and heard a voice coming from your pocket and then realized that you butt-dialed someone at an inappropriate hour and freeze in embarrassment? Have you ever had a conversation in a crowded place in which you have revealed compromising information and wondered whether it was recorded by one of the many cell phones in use around you? Following are a few recent cases concerning these issues.
Are “Butt-Dialed” Calls Private?
A federal appeals court has recently weighed in on the issue and several cases are pending in state courts. So far, the outlook is not good for butt dialers hoping for some privacy. According to the U.S. Court of Appeals for the Sixth Circuit holding in Huff v. Spaw (2015), a butt dialer has no reasonable expectation of privacy in the matters disclosed as a result of the butt dial pursuant to Title III of the U.S. code (“The Wiretap Act”).
Huff arose when James Huff, the Chairman of the board that oversees the Cincinnati/Northern Kentucky International Airport, inadvertently dialed the office phone of Carol Spaw, the Senior Executive Assistant to the airport’s CEO, Candace McGraw from the pocket of his pants. During the call, Huff spoke to Vice Chairman of the Board Larry Savage about sensitive business matters on a hotel balcony. Each party then returned to his respective hotel room, and Huff recounted the conversation with Savage to his wife Bertha as the call to Spaw continued. Spaw answered the call, determined that the call was unintended but that the communications between the caller and the other parties in the room with him at the time concerned her boss. She listened to the 90 minute call, and took meticulous notes, and recorded the last few minutes of the conversation with her phone. Spaw typed a summary of the conversation and then shared it along with the recording with other members of the Airport board.
James and Bertha Huff then filed suit against Spaw for intentionally listening to their telephone conversation and sharing its contents.
The Huffs’ argued that Spaw violated Title III , which prohibits interception of telephonic communication in which the speaker has a reasonable expectation of privacy. Judge Danny Boggs, who wrote the court’s opinion, stated that James Huff did not have a reasonable expectation of privacy since he had placed the call. The court was not swayed by Huff’s argument that the call was accidental, therefore protected. The court’s opinion noted that there are many ways to avoid accidental butt-dials (such as by locking the keys to the phone) and that the Plaintiff failed to take advantage of these measures and was therefore “no different from the person who exposes in-home activities by leaving drapes open or a webcam on and therefore has not exhibited an expectation of privacy.”
The Court did, however, extend protection to Bertha, stating that a speaker’s expectation of privacy is not compromised by the fact that she knows the party with whom she is communicating has a cell phone that could potentially make a butt-call. To hold otherwise would virtually destroy the privacy protections of The Wiretap Act, since nearly every party in a conversation is potential cell phone carrier, held the Court.
The case was sent back to the lower court to decide whether Spaw “intercepted” Bertha Huff’s oral communication.
State Cases on Cell Phone Privacy
In Stevens v. Coan (2018), a former public employee in Georgia is suing his boss for invasion of privacy under the state’s wiretap statute after Stevens butt-dialed Coan, his boss, one evening and Coan heard Stevens’ wife make disparaging comments about him. As a result of what he learned, Coan forced Stevens to resign the following day. The case is currently pending a preliminary hearing.
Florida, like most states, has a statute modeled upon The Wiretap Act (F.S.Section 934.03). This law makes it a 3rd degree felony to intercept oral and wireless communication in which the speaker has a reasonable expectation of privacy. Florida’s wiretapping law also allows the speaker a private right of action against the party that unlawfully records the conversation.
In McDonough v. Fernandez-Rundle (2017), the Plaintiff filed suit against the Miami-Dade County State Attorney under 42 U.S.C. 1983, alleging unlawful deprivation of civil rights, after she informed plaintiff that his recording of a meeting between him and the Chief of Police violated Florida’s wiretap act and that the violation was a felony. The trial court sided with Fernandez-Rundle. The Eleventh Circuit reversed the trial court's decision and held that plaintiff did not violate section 934.03 and, consequently, the government's threatened prosecution had no legal justification. Also, the Court held that the meeting fell within section 934.02’s "uttered at a public meeting" exception, therefore the circumstances did not warrant an expectation of privacy.
Related Cell Phone Privacy Issues
Law Enforcement Cell Phone Searches: 2 cases that the Supreme Court recently decided dealt with warrantless police searches of cell phones. In Carpenter v. U.S. (2018), The Court held that police must obtain a search warrant before searching a suspect’s cell phone for evidence pursuant to the 4th Amendment, which prohibits unreasonable searches and seizures.
Stingrays: Many law enforcement departments are now routinely using cell phone simulators, colloquially known as “stingrays,” that mimic cell phone towers and force phones in the area to broadcast information that can be used to identify and locate them. Since police departments don’t generally reveal when they are using these devices, it is hard to know the extent of their current use.
The American Civil Liberties Union is currently suing the Sarasota, Florida police department for the production of records concerning its use of stingrays. Should the ACLU’s discovery request ultimately lead to disclosure of extensive use of stingrays, further litigation concerning the violation of privacy rights of surveilled parties will likely follow.
Contact Attorney John Clarke today at (305) 467-5560 if you have been injured or have any other legal concern.