BUTT DIALS AND PRIVACY RIGHTS

Last week the Sixth Circuit Court of Appeals ruled that a person has no reasonable expectation of privacy from someone listening in on accidental “butt dial” calls. James Huff, at the time the chairman of the board for the Cincinnati International Airport, was visiting Italy on a business trip. During the trip his cell phone accidentally called his office in the U.S. while in his pocket, and his assistant picked up. His assistant then realized she was overhearing a conversation between Huff and another board officer about replacing the Airport CEO, and believed that Huff and the other board officer were talking about how they could unlawfully discriminate against the CEO. The accidental call lasted a total of an hour and a half (I hope Huff had an international calling plan, because otherwise that’s going to be quite a steep bill.) The assistant took notes the entire time, and then turned her notes over to the airport board. Huff sued her claiming she violated federal law against intercepting private communications.

The Sixth Circuit held that Huff did not have a reasonable expectation of privacy in his calls because he did not install some device or app on his phone to prevent pocket dials.

From the opinion:

Huff admitted that he was aware of the risk of making inadvertent pocket-dial calls and had previously made such calls on his cellphone. A number of simple and well-known measures can prevent pocket-dials from occurring. These include locking the phone, setting up a passcode, and using one of many downloadable applications that prevent pocket-dials calls. James Huff did not employ any of these measures. He is 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

So, according to this logic, by not setting a screen-lock, passcode, or some other preventative measure, Huff is essentially leaving the curtains open on his accidental calls, making them (and the overheard conversations) visible to anyone passing by on the street. The federal courts have ruled in similar ways regarding things like leaving windows open in houses or planting drugs in open fields – if you don’t take precautions to prevent other people from easily seeing what’s going on, you shouldn’t be able to claim that you have a reasonable expectation of privacy.

I think the Sixth Circuit’s opinion goes too far. This isn’t the equivalent of not drawing the curtains on your living room – this is the equivalent of thinking your front door is locked when it isn’t, and someone sneaking inside to then take notes about your conversations. Ruling that you don’t have an expectation of privacy if you don’t take additional steps to protect your privacy is a dangerous precedent, especially when applied to online communications:

“Oh you mean you didn’t specifically encrypt every email you sent?”

“You don’t use a private router to browse online?”

“You use gmail? A third-party email service?”

This kind of ruling could mean that if you do anything online that involves a third party service (which is everything you do online) you have no reasonable expectation of privacy. Let’s hope this case gets appealed, and the Supreme Court overturns it. But remember that the Supreme Court almost said that VCR’s were illegal.