Is eavesdropping on a 'pocket dial' legal?

An appeals court ruled this week that if you call someone via "pocket dial," you’d better hope you don’t say anything incriminating, because that person is within his or her rights to listen to and record you.

Former chairman of the Kenton County, Ky. Airport Board James Huff and his wife Bertha sued Carol Spaw, a secretary who works at the Cincinnati/Northern Kentucky International Airport, which is overseen by the Airport Board, for recording and distributing a conversation she overheard when Mr. Huff pocket-dialed her from a conference in Italy in 2013. The ruling brings legal weight to the oft-joked-about societal etiquette of pocket dials.

Ms. Spaw testified that when she received Huff’s call, she said "Hello" several times before realizing the call was a pocket-dial. She heard Huff talking with a colleague, Larry Savage, about possibly replacing Spaw’s boss, Candace McGraw, and began taking notes when she heard what she believed were plans to illegally discriminate against Ms. McGraw. She recorded the last few minutes of the call, in which Huff and his wife were speaking in their hotel room.

"Spaw claims that she believed that she heard James Huff and Savage engaged in a discussion to discriminate unlawfully against McGraw and felt that it was her responsibility to record the conversation and report it through appropriate channels," the decision said.

An hour and a half later, Huff was back in his hotel room talking with his wife, and realized he had a call with Spaw open on his phone. He ended the call, but Spaw had notes and a recording she brought before the Airport Board.

The Huffs accused Spaw in court of violating Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which deals with wiretapping and surveillance. Both the district court and appeals court decided that because Huff was the one who placed the call, he exposed his conversations to Spaw and could not expect privacy.

The district court dismissed the Huffs’ case, arguing, "If an individual wants to keep his conversations private, the onus is on him to do so. He cannot give another person access to his conversation and then put the burden on that individual to determine that she should take no part in it."

The appeals court agreed that Huff lacked reasonable expectation of privacy. "If a homeowner neglects to cover a window with drapes, he would lose his reasonable expectation of privacy with respect to a viewer looking into the window from outside of his property," Judge Danny Boggs wrote in the decision filed Tuesday.

However, Judge Boggs ruled that since Huff’s wife was not the one who placed the call, Ms. Huff could have reasonably expected that a conversation with her husband in their hotel room would be private.

"We’re very pleased that the court found that James Huff couldn’t even make an argument because his communications are not even protected by the statute," Spaw’s lawyer Jon Allison told the Cincinnati Enquirer on Monday. "The court did rule that Bertha Huff could at least make an argument that her communications [were] protected by statute ... but we fully expect to prevail on that issue as well."

Huff’s pocket dial was an accident, but can such accidents be avoided? The court said yes; as someone who was aware that his phone was capable of making accidental calls, Huff should have taken steps to make sure his private conversation was, in fact, private.

"A number of simple and well-known measures can prevent pocket-dials from occurring," Boggs wrote. "These include locking the phone, setting up a passcode, and using one of many downloadable applications that prevent pocket-dials calls."