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Die Gedanken sind frei, But That’s About it
The U.S. Court of Appeals for the Sixth Circuit in Kentucky ruled this week that a person who dials another party by sitting on his cell-phone doesn’t have a reasonable expectation of privacy if he is overheard.
In what is presumed the first “butt dial” ruling in a federal court, Judge Danny J. Boggs found that what you say over your cell phone is equivalent to standing naked in front of your bedroom window and expecting passersby not to sneak a peek:
This case requires us to consider whether a person who listens to and subsequently electronically records a conversation from an inadvertent ‘pocket-dial’ call violates Title III of the Omnibus Crime Control and Safe Street Act of 1968,” wrote Boggs, after hearing the case of Huff v. Spaw in the U.S. Court of Appeals in the Eastern District of Kentucky.
James Huff, Chairman of the Kenton County, Ky., Airport Board, was on a business trip in Italy in October of 2013. After an afternoon meeting, Huff stood on a hotel balcony with Larry Savage, the Vice Chairman of the board, and discussed a number of matters, including the possibility of removing Candace McGraw from her position as CEO of the Cincinnati/Northern Kentucky International Airport.
In the midst of their discussion, Huff, whose iPhone was in his suit jacket pocket, inadvertently called Carol Spaw, McGraw’s senior executive assistant.
Spaw said she said “hello” several times, according to court documents, before putting the phone on speaker, turning up the volume and saying “hello” again, to no avail. Huff and Savage kept talking, and when, after a minute and a half of listening, Spaw figured out they were talking about her boss’s employment (and potential unemployment), she began taking notes and eventually recorded the conversation on someone else’s iPhone.
“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.
“The pocket-dial call lasted approximately 91 minutes, during which Spaw listened continuously.”
The court notes:
Title III makes it unlawful to “intentionally intercept[] . . . any wire, oral, or electronic communication.” 18 U.S.C. § 2511(1)(a). The act defines “intercept” to mean “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Id. § 2510(4). Title III further prohibits intentional disclosure or use of “the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of wire, oral, or electronic communication in violation of [Title III].” Id. § 2511(1)(c), (d). In addition to criminal penalties, Title III provides injured parties with a private right of action against violators. Id. § 2520(a). The Huffs relied upon this authorization of a private right of action to bring their federal claims.
Sounds black-and-white, doesn’t it? No, it’s more complicated than that:
Title III defines an oral communication for its purposes as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” 18 U.S.C. § 2510(2). The language makes clear that Congress did not enact Title III to protect every face-to-face conversation from interception. We have held that a person engages in protected oral communication only if he exhibited “an expectation of privacy that is both subjectively and objectively reasonable.” [my emphasis] Dorris v. Absher, 179 F.3d 420, 425 (6th Cir. 1999). This assessment parallels the reasonable-expectation-of-privacy test articulated by Justice Harlan in Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., No. 14-5123 Huff, et al. v. Spaw Page 7 concurring).
“Some courts,” they remark, “including ours, limit the subjective part to the issue of whether a person held an internal belief in an expectation of privacy from interception.” They, however, “also ask whether a person exhibited an expectation of privacy, e.g., by taking precaution, but we do so under the objective part of the reasonable-expectation test.”
A person fails to exhibit an expectation of privacy under the Katz test if he exposes those statements to the “plain view” of outsiders, 389 U.S. at 361 (Harlan, J., concurring), or if he fails to take to steps to prevent exposure to third parties, Kee, 247 F.3d at 216–17 (holding that plaintiffs did not engage in oral communication under Title III because “they failed to present evidence demonstrating any affirmative steps taken to preserve their privacy,” and “point to no reasonable safeguards or common-sense precautions taken to preserve their expectation of privacy”). The second part of the Katz test is satisfied if the expectation of privacy exhibited by the person is reasonable under the circumstances. Katz, 389 U.S. at 361 (Harlan, J., concurring). The operative question is whether society is prepared to recognize an exhibited expectation as legitimate. Ibid. It is essential to consider the two-part Katz test with respect to James Huff and Bertha Huff separately …
Because James Huff placed the pocket-dial call to Spaw, he exposed his statements to her and therefore failed to exhibit an expectation of privacy with respect to those statements. No. 14-5123 Huff, et al. v. Spaw Page 10 Exposure need not be deliberate and instead can be the inadvertent product of neglect. Under the plain-view doctrine, 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. …
The principle that a person does not exhibit a reasonable expectation of privacy when he knew or should have known that the operation of a device might grant others access to his statements or activities is applicable in the Title III context as well. In McKamey v. Roach, the plaintiffs brought a private Title III action against the defendant for intercepting their phone conversations where one plaintiff used a cordless phone. 55 F.3d 1236 (6th Cir. 1995). Because Title III expressly excluded “the radio portion of a cordless telephone communication” from the definition of wire communication at the time,6 18 U.S.C. § 2510(1) (1988), the plaintiffs sought to characterize their conversations as oral communications. Id. at 1239. We rejected this characterization, reasoning that the plaintiffs could not enjoy a reasonable expectation of privacy in their cordless-phone conversations because “cordless telephone communications are broadcast over the radio waves to all who wish to overhear,” and the plaintiffs knew or should have known of this risk because the owner’s manual provided an explicit warning. Id. at 1239–4 ….
At his deposition, James 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, see, e.g., Will Verduzco, “Prevent Unwanted Butt Dialing with Smart Pocket Guard,” xdadevelopers, Apr. 15, 2014, available at http://www.xdadevelopers.com/android/prevent-unwanted-butt-dialing-with-smart-pocket-guard/ (reviewing a smartphone application designed to prevent pocket-dial calls from occurring) (last visited July 8, 2015). 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.
Well, that’s all very interesting. What the court left undefined, though, is precisely what comprises a “common-sense” level of protection against the interception of one’s electronic communications. I think it’s common sense to assume that Gmail and my computer are easily hacked. What precautions against this must I take to prove to the court, if need be, that I “exhibited an expectation of privacy, e.g., by taking precaution?” Would changing the password frequently and not using the name of my first dog as the password be sufficient?
Personally, I still figure common sense says I’d best not write anything I wouldn’t put on a postcard. Is Cryptocat good enough? Privnote? An IRC channel set up on a “no log” VPN? Or do I need to use one time pads and an anonymising network like Tor before I can be deemed to have taken sufficient care with my privacy? What if I don’t want to draw so much attention to myself — using this stuff is like saying, “Naked lady behind these open drapes! Lookie here!” So what if I think my privacy might be better served by making it less obvious that I’m trying to hide something? Wouldn’t that also be common sense?
They do not say. So how could I know?
Published in Culture, Law, Science & Technology
Not strictly on point with the article, but since you brought up the issue of stealing glances through undraped windows…I’ve occasionally marveled at how the providence of The Supreme Being, coupled with decades of my own choices have conspired to make the punishment for leering at me in “private moments” simultaneous with the crime.
This is a very interesting case Claire. My initial question is, how does one “butt-dial” from a suit jacket pocket while riding an elevator? That just seems implausible to me. I suppose it could happen.
My second question would be what made the conversation about the letting go of the person in question discriminatory? The piece didn’t really explain that other than to say that the secretary/assistant who received the “butt-dialed” call said it was.
I think the actual crux of the case, whether or not the assistant acted unlawfully by taking notes regarding the call she received, is fine though. Sure the two men in question thought they were in a private discussion about business, but the receiver of the call did not actively seek access to that conversation. It merely fell into her lap, so to speak. At that point it is more like overhearing a conversation about business deals while riding on the train or a plane.
It’s common sense not to say things that will be used against you in a lawsuit except to your lawyer. (The alternative to presenting these notes as evidence would have been to put Huff and Savage on the stand and ask them about their conversation, surely.)
As an aside, has any act more ambitiously named had as little effect as the Omnibus Crime Control and Safe Street Act of 1968?
Focusing on Huff and Savage seems to me missing the point, which is we don’t know which precautions to take to prove that we’ve exhibited an expectation of privacy. The answer is apparently “common-sense” precautions, but the gulf between “what you’d need to know to close the curtains” and “what you’d need to know to ensure no one can intercept and read your e-mail” is huge.
The only word I can think of for this story is “oops.”
But it is the essential context. This is about the admissibility of evidence in a civil trial. Having a “reasonable expectation” of privacy doesn’t actually affect whether your conversation/email/notes are private in reality. It affects whether the intercepted conversation/email/note can be introduced into court. You can always be introduced into court. In some circumstances you can refuse to testify. But the other party(ies) in the conversation can be called to testify. And even if none of this makes it into court, everyone has still read it.
I think my point is unclear. Under the plain-view doctrine, if a homeowner neglects to cover a window with drapes, he loses his reasonable expectation of privacy. This really is common-sense to pretty much everyone.
Most people have no idea how to cover their electronic windows with drapes, so to speak, and have no idea how the drapes even work. “Common-sense” about this doesn’t exist in the same way.
This is true. So if your point is that this is a nonsensical legal test I agree.
My further point is that relying on this nonsensical legal test now seems to me dangerous. What the court describes as “common sense” here is the use of
Has the court recently had the experience of trying to show an elderly relative how to set up a passcode on his iPhone? I suspect not.
What’s “common sense” when it comes to protecting e-mail? What’s considered “simple and well-known?” In my experience the majority of the American public does not understand fully how vulnerable their electronic communication is. What do they need to do to have a “reasonable expectation of privacy” in the eyes of the law?
It seems to me the crux of the “reasonable expectation of privacy” is to not call the other party, inadvertent or otherwise. Had Spaw taken any positive steps to listen to the conversation then she would have been in the wrong. In the same sense, leaving your windows without drapes is presenting what is behind them to onlookers. So for your email to remain private, don’t send it to people you don’t want to see it, or don’t have it on screen, and then put that screen where it’s visible to others. I don’t see that this is such a complicated test.
The court’s demand for exhibiting an expectation of privacy is – on the scale of privacy measures – remarkably low. The footnote quoting US v. Barrows says that a computer password would satisfy the requirement. That little Windows password you enter every time you start up your computer is a virtually non-existent security measure. (IIRC, Microsoft doesn’t even consider it a security measure in their own documentation.) Yet simply having a password in place versus no password satisfies the legal requirement to exhibit an expectation of privacy.
To Claire’s scenarios, any setting for your (non-security related) tools that is different from default or having a password at any point in the process seems to satisfy the legal requirement. Of course, that means nothing about your actual state of security.
The issue is responsibility. If you want to have these tools and toys, it’s up to you to use it correctly and learn what you must. The court is not there to protect you from your own stupidity, even if it was a mistake. You want to have a cell phone? It’s your responsibility to know how to use it properly and how to protect yourself.
I think it’s a legitimate question whether an elderly person who cannot handle a password should be using a device connected to the Internet without supervision.
I can see that with regards to email, but my impression was always that most people do indeed know how to lock their cell phone?
I’m surprised a serious business man would fail to take basic steps to prevent a pocket dial on his work phone. That just seems basic professionalism to me. Not that you’d foresee this situation, but you wouldn’t want to accidentally dial any of your professional contacts. That’s just embarrassing and awkward. But I suppose other people don’t think like me.
I agree with the court.
Sorry.
IMHO, just as we have no right to happiness but only a right to pursue happiness, the right to privacy is in fact only a right to safeguard our own privacy.
(i.e. the right to remain silent, the right to put up curtains, and/or the right to use strong encryption)
It does not mean that we have the right to force other people to be like Sgt Schultz and pretend they “know notink!” whenever we mouth off.
(i.e. the right to force people to act as if we had curtains even when we do not, the right to force others to act as if we remained silent even when we did not, and/or the right to force others to act as if we used strong encryption even when we did not)
Is the Butt-dialing interception any different than if Spaw had overheard the conversation from the balcony above or below?
Would Spaw’s testimony to that overheard conversation without a recording be admissible evidence?
Is the question before the law that her recorded version is on equal footing, even though an ocean separated her from the balcony?
I think the key is Spaw did not set-up the interception. She took advantage of a circumstance dropped into her lap and created an archive of that experience, based on what she heard.
Our electronic devices record our experiences (photos & audio) and have become the archiver of our experiences–often for benefit, and in this case for detriment.
I’m sure Spaw’s boss feels the overheard butt dial call was providential!
Do people not have a responsibility to learn about the tools they use? If you don’t know how to safeguard your privacy when using electronic communications you always have the option of not communicating by electronic means.
Should a person be able to sue a hammer company simply because they were ignorant that a hammer is a poor choice of tool when turning screws? Should we forgive accidents caused by those who don’t know how to drive? Should the firearms manufacturer be liable if someone shoots themselves in the face when cleaning their gun? Etc. Etc. Etc.
How do we gauge whether someone doesn’t know something vs. whether they are simply being willfully ignorant? Should the person who sends postcards instead of sealed envelopes also be given this “hall pass” from common sense?
Personal responsibility, it seems to me, is a hallmark of conservative thought. To give people a free pass in the case of electronic communications strikes me as risking a trip down a very slippery slope where ignorance becomes an excuse in all sorts of other areas as well.
Furthermore, the problem of security when communicating electronically has been known since Marconi’s very first public demonstrations. Is 112 years not enough time for people to get the message?
The key word here is “interception.” When YOUR phone rings you’re receiving a call, not intercepting it. It’s not like Spaw hacked or bugged the other party with the intention to eavesdrop.
Lawyers will argue anything provided they’re on billable hours or on retainer. And that’s fine. (To a point.) If your client does something stupid it’s your job to try and help him right the ship.
Indeed, I often think that it would probably be wise to refrain from publishing these sorts of stories of legal malfeasance until after the judge has made a ruling. That way it’s either a cautionary tale about how the legal system is broken, or it’s a feel-good story about how judges aren’t as stupid as lawyers think they are.
As others have noted, you simply need to lock the phone to prevent butt-dialing. The overwhelming majority of phones in use today have this feature, and can do it automatically if you forget.
You don’t need to download some arcane android app…
So yeah, I think the case reaches a fair conclusion.
I happen to have a friend who went through a period when he was regularly butt-dialing me, and I had a long talk with him about how to prevent it.
It’s not that hard.
The opinion doesn’t specify where exactly the interception occurred, if it was merely by virtue of the phone call itself. But Spaw recorded at least part of what she heard using another device, which seems to me (requisite IANAL disclaimer) to surely qualify as an interception. The notetaking might also count as interception, depending on Kentucky case law, but that’s a stretch.
Is there really any expectation of privacy when using a device that sends out voice communications over the airwaves that a scanner can receive?
Kentucky is a one-party consent state, but conversations overheard without mechanical assistance don’t count as private conversations, so I imagine that Spaw could claim either that she was a party to the conversation, and she consented, or that the conversation wasn’t private.
On the larger point, I concur with Misthiocracy. If you want to have a private conversation and leaks are unacceptable, turn your phone off. When we had Executive Session meetings in city government, the first thing was “all electronic devices off, all notebooks closed.”
I was curious whether they could claim the use of a pen/pencil and paper could be called a device recording the contents of the communication? Like I said a stretch, but the obscure possibility made me smile. ;-)
Claire,
This coming Shabbos turn all phones & computers off for the 24 hrs. You will start to get the feel of being Shomer Shabbos this way.
So I will renounce my sorrows forever,
and never again will torture myself with whimsies.
In one’s heart, one can always laugh and joke
and think at the same time: Thoughts are free!
I love wine, and my girl even more,
Only her I like best of all.
I’m not alone with my glass of wine,
my girl is with me: Thoughts are free!
Oh BTW, encrypt the hell out of everything.
Regards,
Jim
I don’t believe that such a right to privacy can be assumed under the US Constitution, HOWEVER, I also do not believe that the US Constitution would prohibit a state from passing a statute which makes it illegal to record a conversation without the expressed permission of every participant, even when said conversation takes place in a public place.
That does not appear to be the law used in this case. I’m not sure if such a law exists in any US state. If such a law did exist, it would surely be challenged by newsgathering organizations.
There are, in certain states. That’s what Sabrdance was referring to when he said Kentucky is a “one-party state.” Consent for a legal recording of a communication requires consent from only one of the parties involved. That’s the law in a majority of states.
A few states, including California, passed more restrictive laws of their own which require both parties to consent, hence “two party states.” All these laws in the various states mostly (AFAIK) fall under the slang heading of “wiretap laws.”
Edit: My fun detour comment may not be an example of the laws we’re discussing.
Two things I think I know:
1. While not explicitly stated, the right to privacy is considered to emanate from the quivering penumbras of the 4th Amendment.
2. The right to privacy was declared via an 1890 Harvard Law Review article by Samuel Warren and Louis D. Brandeis (later Supreme Court justice).
I’ll leave it to the lawyers to correct/clarify/gasp-and-reject as necessary. The idea that there is no right to privacy in society is a really interesting idea I’ve not had the chance to think through. But in the meantime, I’ll take some privacy, thanks ;-)
Here’s a state-by-state guide: Reporters Committee for Freedom of the Press.
I have no expectation of privacy anywhere. This would have been a paranoid stance only 20 years ago. But I now live in a world in which everyone I pass is holding a camera and a recording device and can effortlessly film and record me and upload anything I say or do to the Internet.
I once assumed privacy as a default state. I now assume that to have it, I would have to take very unusual measures.
The second part of the Katz test “is satisfied if the expectation of privacy exhibited by the person is reasonable under the circumstances.” I can think of few circumstances in which I now have a reasonable expectation of privacy.