Two steps forward, one step back. In the introduction to a law review article entitled “Emerging Changes in the Practice of Law,” USC Law Center professor Louis M. Brown wrote of the “Fable of the Telephone.” Essentially, the story goes that back in 1878, white-shoe New York law firms resisted use of the telephone in their law offices because there was no protection for client confidentiality in the age of the party line.[i] When clients demanded access to telephones, pay phones were installed in the lobby. It would be many years before the expectation of privacy was established in the law for telephone conversations and more than 100 years before the last commercial party lines were eliminated in the US.
The same late 19th century lawyers also rejected the typewriter (there was no precedent upholding the legal validity of documents created on a typewriter) and female legal secretaries (because of the prevailing view women gossiped too much and would constitute a threat to the confidentiality of office communications.) How times have changed. Nevertheless, with respect to the telephone, there is a kernel of truth in the concerns of those luddite lawyers (all men, by the way).
Put simply, if you want to use voice recognition to control your TV, you consent to having everything said in front of your TV recorded and uploaded to Nuance, the third-party company providing voice recognition services to Samsung. See Not in front of the telly: Warning over ‘listening’ TV BBC News, 9 February 2015.
So it should come as no surprise when the Sixth Circuit Court of Appeals recently held that there is no expectation of privacy in a conversation inadvertently transmitted to a third-party by what the court called a “pocket dial.” Bertha Huff, et al. v. Carol Spaw, 2014 U.S.App. LEXIS 12538; 2015 FED App. 0157P (6th Cir. – July 21, 2015).
Our cast of characters includes James Huff, Chairman of the Kenton County, Kentucky Airport Board, and his wife, Bertha Huff. Also important to the story is the airport CEO Candace McGraw, and her Senior Executive Assistant, Carol Spaw. At first blush, the Kenton County Airport Board doesn’t seem to be much until you understand that it oversees the Cincinnati/Northern Kentucky International Airport (CVG.)
It seems Mr. and Ms. Huff traveled to Italy for a business conference. While there, Mr. Huff used his iPhone unsuccessfully to attempt to contact Ms. Spaw to ask her to make dinner reservations for him. Mr. Huff then proceeded to put his iPhone in his suit pocket and began a confidential discussion about CVG personnel matters, including replacing Ms. McGraw as CEO. Unfortunately for Mr. Huff, when he placed his phone in his suit pocket, it successfully dialed Ms. Spaw, who answered the call. Also unfortunately for Mr. Huff, he was unaware Ms. Spaw was listening as he proceeded to have several conversations about Ms. McGraw as well as a private conversation with his wife. The “inadvertent call” lasted 91 minutes.
Although she was well aware Mr. Huff was not aware she was listening to the conversation, Ms. Spaw proceeded to make notes, enlist a co-worker to listen on a speakerphone and make notes, and ultimately to record a portion of the conversation on another iPhone, checked out from the CVG IT department. After the call ended, Ms. Spaw dutifully transcribed the notes into a typewritten summary. She also transferred the voice recording to a thumb-drive, which was then given to a third-party company to enhance the audio quality. Last, she provided copies of the summary and the audio recording to other members of the CVG board.
The Huffs filed suit against Ms. Spaw for violations of Title III of the Omnibus Crime Control and Safe Street Act of 1968, 18 U.S.C. § 2510, et seq. They specifically alleged Ms. Spaw intentionally intercepted, disclosed, and used their oral conversations unlawfully. In January, 2014, the District Court granted summary judgment to Ms. Spaw holding Title III does not protect the Huffs’ conversations because any expectations their conversations would not be intercepted was not reasonable under the circumstances. The Huffs appealed.
The appellate court first addressed jurisdiction, finding that while the communications occurred in Italy, any alleged interception occurred using an office phone and iPhone in Kentucky, such that jurisdiction in the United States was appropriate. The court then went on to analyze the Huff’s expectation of privacy for oral communications under Kentucky appellate interpretations of the test first articulated in Katz v. United States, 389 U.S. 347; 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Ultimately the court held that Mr. Huff had no expectation of privacy in a pocket-dialed call. Mr. Huff admitted in deposition that he had made inadvertent “pocket-dialed” calls previously. Mr. Huff also failed to take appropriate steps to mitigate the chance of doing so again by locking the phone, setting up a passcode, or installing an app that prevents pocket-dial calls. “In sum, a person who knowingly operates a device that is capable of inadvertently exposing his conversations to third-party listeners, and fails to take simple precautions to prevent such exposure, does not have a reasonable expectation of privacy with respect to statements that are exposed to an outsider by the inadvertent operation of that device.” The grant of summary judgment as to Mr. Huff was affirmed.
Not so with respect to Ms. Huff, however. The court held that Ms. Huff did have a reasonable expectation of privacy for her oral communication with her husband, and that she could not be held responsible for her husband’s pocket dial, even if she was generally aware he had done so previously. Summary judgment was reversed as to Ms. Huff. Because the district court had not reached the issue of whether or not Ms. Spaw’s actions, including (1) answering the phone, (2) turning up the volume, (3) transcribing notes, and (4) making an electronic recording, constituted an “intentional use of a device” to intercept Ms. Huff’s oral communications in violation of the statute, the matter was remanded for that determination.
This case is troubling on several fronts. First, with the proliferation of web-connected devices, from smart televisions to remotely controlled security, lighting, and temperature controls, the odds of having a private conversation ‘overheard’ by a device are increasing by the hour. As touch controls are replaced or enhanced by voice recognition and activation, the occurrence of an inadvertent pocket dial or its equivalent will rise dramatically. It is not far-fetched to imagine that the spoken phrase “Seriously, call Nancy” might be interpreted by a nearby iPhone as “Siri, call Nancy.”
More troubling is the court’s conclusion that the expectation of privacy is tied to one’s technical prowess. Like the party-line telephones of 1878, the expectation of privacy for the Huffs was more a legal reality than a technical one. A cautious and prudent person would consider the “party-line” aspects of a call, but—before the court’s decision—could presumably rely on the fact that absent a warrant, the government could not use the content of the call against him, nor would those contents be admissible in a civil action absent special circumstances.
Last, the holding is especially troubling for lawyers. What happens to attorney-client privilege if a protected conversation is revealed by a pocket-dial? Stay tuned, that shoe is sure to drop shortly.
When I handed my then 8th grade daughter her first cell phone, I admonished her, “Remember, this thing is essentially a radio – don’t say anything on it that you wouldn’t want shouted at the mall the Saturday before Christmas.” It seems I should have moderated my comment to not saying anything “near” it, as opposed to “on” it.
[i] 1978 Utah L. Rev. 599 (1978) referencing V. Raum, “Readings in the Changing Practices of the Legal Profession in the Nineteenth and Early twentieth Centuries (unpublished research paper on file with the author.)