"Privacy isn't free. If your privacy is important to you, you have to take reasonable steps to protect it." -- UMass Law Professor Shaun Spencer
A federal appeals court recently ruled that the former Cincinnati/Northern Kentucky International Airport Chairman James Huff, who unknowingly "pocket-dialed" a colleague who then recorded the call, did not have a reasonable expectation of privacy in the conversation that followed.
The call lasted 91 minutes with the employee claiming she heard Huff discuss personnel matters, which included the possible replacement of the airport's chief executive officer. The conversation Huff was engaging in was with another airport board member, and then with his wife, Bertha Huff. Airport employee Carol Spaw, who inadvertently received the call, took notes and recorded the final four minutes. She shared a summary of her notes and the audio recording with other members of the airport board. The Huffs sued Spaw, but the trial court ruled that the Huffs could not reasonably expect that their conversations would not be intercepted. The appeals court agreed that James Huff had no expectation of privacy, but ruled that Bertha Huff had a privacy expectation even if she was aware that her husband's phone could accidentally make a call.
UMass Law Professor Shaun Spencer, who has written and presented on the topics of privacy, technology, and law, discusses the ruling, the "expectation of privacy" of cell phone-carrying Americans, and how courts have handled the legal consequences of the technology-driven world.
It seems this ruling puts the responsibility squarely on the pocket-dialer. Can you explain the reasoning the court provided in their ruling?
SS: The federal wiretapping law only applies to communications made with a reasonable expectation of privacy. The court reasoned that one can't enjoy such an expectation without taking reasonable steps to prevent others from overhearing the conversation. Those steps might include finding a secluded location for your conversation, or even keeping your voice down. Here, the court simply recognized another important step -- making sure you haven't accidentally dialed someone on your phone.
Based on this ruling and any other legal precedent you think may apply, what should be the "expectation of privacy" for any cell phone-carrying American?
SS: This ruling simply applies the long-standing reasonable expectation of privacy doctrine to the pocket-dialing phenomenon. Privacy isn't free. If your privacy is important to you, you have to take reasonable steps to protect it. Pocket dialing is a relatively unusual phenomenon. There are far more common ways to forfeit an expectation of privacy in a cell phone conversation, like carrying on a loud cell phone conversation in a restaurant or on the train. This decision reminds us that the convenience of our cell phones can undermine our privacy, and that we must use our cell phones responsibly.
Bertha Huff was found to have a privacy expectation even if she was aware that her husband's phone could accidentally make a call. How important is this for the average person to know that they are protected from another cell phone user's mistake?
SS: This part of the decision recognizes that the pocket-dialer can only forfeit his or her own expectation of privacy, not the expectation of those around them. That's very important. If you forfeited your expectation of privacy because of the mere possibility that your conversation partner's cell phone might secretly be recording, then you could never have a private conversation with someone who had a cell phone. That would go too far, which is why the court allowed Bertha Huff's claims to proceed.
It appears that the judges in this case understood the power of the modern cellphone as not just a phone but a transmission and recording device. In your opinion, have the courts done a good job in understanding the pros and cons of the modern technology driven world we live in today?
SS: Courts are increasingly recognizing the sea change brought about by modern communications technology. An important recent case is the Supreme Court's decision in Riley v. California. In Riley, the police arrested a man, seized his phone, and then searched the phone's contacts, photos, text messages, and videos without first obtaining a search warrant. In most situations, the police are free to conduct a warrantless search of items found on the arrestee's person during a lawful arrest. However, the Supreme Court refused to apply that rule to cell phones because they store such vast amounts of personal information. Riley v. California is an example of how the massive aggregation of data may require courts to revise or rethink existing rules as they apply to emerging technologies.
About Shaun Spencer
UMass Law Professor Spencer teaches Privacy Law and Legal Skills I-III, and also directs the law school's Legal Skills Program. His research interests include privacy law and policy and the empirical analysis of legal writing. Before joining UMass Law, Professor Spencer was a Lecturer at Harvard Law School and an Adjunct Professor at Boston College Law School. In addition, Professor Spencer worked as a litigation associate at Boston's Bingham, Dana & Gould and later founded his own firm specializing in civil appellate practice and employment litigation. This past February, Professor Spencer presented on the topics of privacy, technology, and law at the Michigan Telecommunications and Technology Law Review Symposium and the New England Law Review Spring Symposium.