On July 21, the U.S. Court of Appeals for the Sixth Circuit held in Huff v. Spaw that when a person with a cellphone inadvertently calls a third party (by “butt dialing” or “pocket dialing” her) and thereby exposes personal communications to that unintended third party, the inadvertent caller retains no reasonable expectation of privacy in the matters disclosed, for purposes of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“the Wiretap Act” or “Title III”). In this column, I will examine the ruling in Huff, in the light of how we ordinarily think about privacy as well as the Fourth Amendment doctrine that parallels Title III.
Huff arose when the cellphone of James Huff, the Chairman of the Kenton County, Kentucky, Airport Board (which oversees the Cincinnati/Northern Kentucky International Airport (“the airport”)) placed a pocket dial call to the office phone of Carol Spaw, the Senior Executive Assistant to the airport’s CEO, Candace McGraw, and a liaison to the Airport Board. After picking up her phone, Spaw—who determined that the call was unintended—listened to and took notes on an hour and a half of conversation taking place on an outdoor balcony in a hotel, between Huff and Airport Board Vice Chairman Larry Savage, and then between Huff and his wife, Bertha Mae Huff, in the couple’s hotel room. Spaw also used an iPhone to record the final four minutes of the couple’s conversation.
Title III, among other things, prohibits the “interception and disclosure of wire, oral, or electronic communications” and provides a private right of action. A main question before the three-judge panel of the Sixth Circuit in Huff was whether listening to a conversation to which one has been exposed by a pocket dial counts as “interception” under Title III. The court focused a great deal of attention on the question whether a person has a “reasonable expectation of privacy” in a conversation transmitted to a third party after the person claiming a Title III violation inadvertently exposed that conversation with the third party at issue through a pocket dial. The court answered the question in the negative for the person operating the cellphone but in the positive for the person with whom the cellphone operator (here Huff) was talking (in this case, Huff’s wife Bertha, who was part of the lawsuit against Carol Spaw).
The court in Huff held that because there are ways of preventing one’s telephone from pocket dialing people (as outlined in the device’s owner’s manual), and because Huff failed to take advantage of these options for protecting his own privacy, he thereby also failed, for purposes of Title III, to manifest an expectation of privacy in the communications he exposed through a pocket dial. The court compared Huff’s failure to protect his own privacy with that of the homeowner who leaves his window drapes up and then conducts personal activity in his home, in full view of anyone who happens to pass by the house while walking down the street. Because Huff’s wife Bertha was not the one who operated the cellphone, she also did not assume the risk of exposure of her conversation with her husband. She accordingly retained a reasonable expectation of privacy in that conversation, which she had carried out in her private hotel room.
In the Fourth Amendment doctrine, the U.S. Supreme Court has similarly used the phrase “reasonable expectation of privacy” to refer both to the individual’s manifestation of his own subjective expectation of privacy and to an assessment of the objective reasonableness of that expectation. The Court has held that under the Fourth Amendment, one lacks a “reasonable expectation of privacy” in what one has “knowingly exposed” to public view. This means that if you yell something secret to your friend in a crowded subway, then police on the scene can listen to what you are saying without having to obtain a warrant or acquire any other suspicion-based reason for listening to you. In the words of the Fourth Amendment doctrine that has developed in the Supreme Court, police listening to what people disclose in public forums does not constitute a “search” and therefore fails to trigger any of the obligations (to behave “reasonably”) that the Fourth Amendment imposes on the government when the latter conducts searches.
The Wiretap Act extends federal coverage to zones of human behavior that might not otherwise receive protection from the Fourth Amendment. In a case like Huff, for instance, where no governmental actors are involved, the Constitution has no application to the surveillance that might be occurring. The Wiretap Act, however, applies to interceptions by private parties and, accordingly, at least potentially, to Spaw’s listening in to what Huff said in private conversations with Airport Board Vice Chairman Larry Savage and with Bertha Huff. Despite the expansion of privacy, the analysis of what triggers Title III protection is similar to the corresponding test for what triggers Fourth Amendment privacy protection. Both require a “reasonable expectation of privacy,” and both appear to have a strong “assumption of the risk” ethos, an ethos that I discussed in a law review article about the Fourth Amendment search doctrine.
Did the Sixth Circuit Get It Right?
Given the parallel between Wiretap Act and Fourth Amendment doctrine, a look at how the Fourth Amendment handles similar situations could shed light on the Sixth Circuit’s ruling in Huff. As mentioned above, Fourth Amendment doctrine carries a strong “assumption of the risk” presumption regarding individuals’ expectations of privacy and the potential forfeiture of those expectations.
The Sixth Circuit relied, to a great extent, on the idea that if one can act to avoid taking a risk and fails to do so, then one has thereby also failed to manifest an expectation of privacy in avoiding the risk coming to fruition. For this reason, when Huff failed to take precautions against pocket dialing with his cellphone, he effectively “asked for” what in fact occurred—his cellphone pocket dialing someone on his call list and thus broadcasting his personal conversations to that someone in real time.
The problem with this reasoning is that it differs in an important respect from the Supreme Court’s Fourth Amendment analysis, and reconciling the two could expose people to the very sort of surveillance that the Wiretap Act is expressly intended to prohibit.
In the Supreme Court’s Fourth Amendment jurisprudence, a person who takes particular risks of exposure thereby forfeits any right of privacy in avoiding the exposure at issue, not just in the event that the particular risk comes to fruition. In more concrete terms, if you put out your garbage at the curb for pickup, you risk the garbage being torn open by human children, by nonhuman animals, and by (adult human) snoops. The Court accordingly held in California v. Greenwood that police may retrieve your garbage from the trash collector and examine that garbage without probable cause or a warrant, even when no child, nonhuman animal, or snoop has exposed it to public view. Doctrinally speaking, you lack any “reasonable expectation of privacy” in the trash that you leave out at the curb, because of the risks that you take in leaving it out, regardless of whether children, animals, or snoops actually do anything to your garbage.
Were the Sixth Circuit to use similar logic regarding the risks taken by a person who fails to prevent his cellphone from pocket dialing, it would follow that a failure to take such steps empowers third parties not only to listen to an inadvertent pocket dial but also to place an electronic bug in the areas where the person goes with his telephone, since the risk of pocket dialing forfeits any reasonable expectation of privacy that he might otherwise have had in the conversations that take place near his cellphone. Title III, however, (not to mention the Fourth Amendment, under Katz v. United States) prohibits such blanket interception.
The Sixth Circuit’s narrower approach to the risk of pocket dialing is akin to the Supreme Court having held that because children, animals, and snoops can open your garbage, the garbage is subject to police rummaging without cause only when children, animals, or snoops have already torn open the bag. Though purporting to parallel Fourth Amendment analysis, the Sixth Circuit therefore takes a step that—under actual Fourth Amendment doctrine—would forfeit all privacy nearby a cellphone that could but has not in fact pocket dialed a third party, a step that the Sixth Circuit did not intend to take (and could not have taken, consistent with the law). In this sense, the Sixth Circuit may have erred in its decision.
To illustrate its assumption of the risk reasoning, the court draws an analogy to leaving your shades open. Like its narrow assumption of the risk logic above, however, its analogy here is flawed. Police can, of course, walk by your house on a public street and see what everyone else sees, but this does not necessarily mean that police can stand in the street and stare into your house for over an hour, the more apposite analogy to listening to a conversation for 90 minutes after a pocket dial.
In Minnesota v. Carter, the Supreme Court left open the question whether staring into someone’s home for an extended period of time through a break in the blinds from a public area outside the curtilage of the residence invades a reasonable expectation of privacy in the home, with only Justice Breyer saying (in an opinion concurring the judgment) that one lacks any such expectation. Even if listening over a pocket dial is just like looking into someone’s home through open blinds, then, it may still be the case that what Spaw did to Huff here (extended listening) should have been held to violate Title III by invading a reasonable expectation of privacy.
The problem, moreover, with an assumption of the risk approach is that one always has to decide which risks are normatively attributable to the risk-taker and which are instead the sorts of risks that most of us may take without forfeiting our rights. To my knowledge, many of us fail to take the measures necessary to avoid pocket dialing the people on our respective call lists. It is also the case that most of the time, our cellphones are not pocket dialing anyone and when they are, the courteous, expected response is for the recipient of the inadvertent call to hang up and go on with his or her day rather than listening and taking notes for ninety minutes.
The Sixth Circuit found that although Spaw did not violate Title III vis-à-vis Huff, she might have violated it vis-à-vis Huff’s wife Bertha, because the risk that we are speaking privately with someone who has failed to prevent pocket dialing on his cellphone is not the sort of risk that we properly assume. But why not? We could refuse to converse with anyone until all cellphones present have been protected, and if this seems excessive, many people would view having to take special measures to avoid pocket dialing on their own phones as excessive as well.
The question here is accordingly normative, not just empirical, and there is no self-evident reason for saying that Bertha but not Huff retains a reasonable expectation of privacy in the very same personal conversation between the two. The ruling also means that a person may listen to a pocket dial call, as Spaw did, and violate Title III only if and to the extent that some third party over whom the person with the telephone lacks any control (here Bertha) says personal things to the other person holding the cellphone in his pocket (here Huff). This result has the arbitrariness associated with Fourth Amendment standing doctrine more generally.
One could, to support the Sixth Amendment ruling, cite a peculiarity of holding Spaw accountable for listening to a conversation to which she was exposed by Huff’s pocket dial to her. Such accountability would mean that Title III imposes an obligation on third parties to act affirmatively, by hanging up the phone. The law ordinarily prohibits us from taking an action (such as robbing a bank) rather than requiring us to act (such as by intervening in a robbery in progress). If Spaw can be required to pay damages for simply listening to a conversation to which she was exposed through another person’s pocket dial, then the law effectively orders Spaw to hang up her phone when she did nothing wrong in answering it in the first place.
Though the law generally prohibits rather than requires action, however, we do have some affirmative obligations. We must file tax returns and pay taxes, for example, and we must respond to jury summonses and serve as lay witnesses when we are called to testify (absent a privilege). An obligation to hang up the phone when a call is not for us, moreover, is simply common courtesy and hardly qualifies as an onerous burden. If the law of the Fourth Amendment and Title III draw on social custom (which they do), people would likely consider it invasive and discourteous to listen to a private conversation to which one has been privy through inadvertence and to which one is unwelcome. As between Huff and Spaw, in other words, it is Spaw whose telephone etiquette would be found lacking, not Huff’s.
In short, the court’s reasoning in Huff leaves something to be desired. If the Supreme Court sees fit to take this case (or, more probable, a case like it once there is a split in authority on the issue), it should say so in no uncertain terms. Cellphones (and their casual use) have become too pervasive in our lives for the law to convert them into legally permissible listening devices.