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Federal Court Says No Right To Privacy for a Butt Dial

Have you ever pocket-dialed or “butt-dialed” someone?

If yes, you should know that a federal court recently determined that there is no expectation of privacy when such a call occurs. This can have serious legal implications, as highlighted below.

For those that don’t know, a pocket-dial occurs when your phone inadvertently calls someone, unbeknownst to you. This often happens when a phone is in a pocket or a bag and touches something, triggering the phone to call a contact or a telephone number stored in the phone. The owner of the phone usually doesn’t realize that such a phone call has occurred until long after the fact.

Despite not knowing that such a call is going on, a federal court recently ruled that the owner of the phone has no expectation of privacy and, thus, upheld the dismissal of a lawsuit. The phone, in this case, belonged to the former chairman of the board that oversees Cincinnati/Northern Kentucky International Airport. The chairman was speaking on a hotel balcony with the vice chairman about personnel matters, including replacing the airport’s CEO, when the phone, which was in the chairman’s suit breast pocket, pocket-dialed the CEO. The CEO’s assistant answered the call, saying “hello” several times without receiving a response.

Even though no one responded to her calls of “hello,” the CEO’s assistant continued to listen to the 91-minute conversation. The assistant took notes of the conversation because she believed that she heard the chairman and vice chairman engaging in a discussion to discriminate unlawfully against the CEO. The assistant also obtained an iPhone and recorded the final four minutes of the conversation. The assistant later prepared a summary of the phone call and distributed it to the other board members.

The board chairman sued the assistant, alleging that she violated federal law by the following actions: (1) intentionally intercepting oral communications; (2) disclosing the contents of intercepted oral communications; and, (3) using the contents of intercepted oral communications.

The 6th Circuit Court of Appeals, which is the federal appeals court based in Cincinnati, upheld the dismissal of these claims. The Court noted that federal law only protects oral communications from interception if the individual exhibits “an expectation of privacy that is both subjectively and objectively reasonable.” By making the pocket-dial, even inadvertently, the Court determined that the chairman did not have an expectation of privacy. The Court ruled that exposure “need not be deliberate and can be the inadvertent product of neglect,” such as when a homeowner neglects to cover a window with drapes. In support of its ruling, the Court cited the chairman’s testimony in which he admitted that he was “aware of the risk of making inadvertent pocket-dial calls and had previously made such calls on his cellphone.”

As this situation exhibits, digital devices have the ability to compromise sensitive information. Whether it is a pocket-dial exposing a confidential conversation or an employee snapping photos on their phone of company intellectual property, employers should be thinking about the ways in which a company can protect against inadvertent disclosures. Companies that are proactive, now, may preserve certain legal rights.

If you are worried about your conversations being exposed via a pocket-dial and want to preserve your expectation of privacy, here are some things that you should consider doing:
  • Turn the phone off.
  • Use a passcode that must be entered in order to make phonecalls.
  • Download an application that prevents pocket-dials.

A failure to take any action, as this chairman experienced, is likely to result in a loss of the expectation of privacy.

If you have questions about the right to privacy in the digital age, contact a member of MacDonald Illig’s Emerging Technologies Practice Group.

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