Not only is it embarrassing to butt dial someone, the courts have ruled that you also have no reasonable expectation of privacy during that call either. 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 global Airport.
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Today in issues we never thought a court would weigh in on: if you accidentally pocket dial someone, pulling the move we all know as “butt dialing”, don’t expect anything you say during the call you don’t know you’re making to stay private.
She then gave the transcript to McGraw and the rest of the board. Huff put his phone back in his pocket, at which point he inadvertently dialed Spaw’s correct number. Spaw allegedly took notes and recorded a portion of the 91-minute conversation on her iPhone, some of which included a personal conversation between Huff and his wife, Bertha. It was Huff again, but after calling out “Hello!” several times, she realized that he was unaware that he was on the phone.
The district court ruled in favor of Spaw, causing the Huffs to file an appeal.
Early in 2014, Huff and Savage were ousted from the board for spending an excessive $250,000 on foreign trips and food in the previous three years, somewhat aptly, considering the origin and nature of Huff’s call to Spaw. Huff and his wife, who was also recorded, eventually sued Spaw for violating federal wiretapping laws. Judge Danny Boggs agreed with the lower court on Tuesday, writing that “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”. James Huff did not employ any of these measures. Because Bertha Huff didn’t place the phone call, was in the confines of her hotel room, and had no reason to suspect that her husband’s phone was connected, she could have reasonably expected that what she said was private, the court said.
It could be noted here that Kentucky is one of 39 states (plus the District of Columbia) that only requires the consent of one party before a call can be recorded – and that party can be the one holding the tape recorder. “As almost every participant in a conversation is a potential cellphone [sic] carrier, such a conclusion would dramatically undermine the protection that Title III grants to oral communication”.
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That doesn’t necessarily mean Spaw is liable, however, because liability applies under the Wiretap Law only when a person “intentionally” uses a “device” to intercept oral communications.
