Appeals Court Rules Butt Dialing Tosses All Expectations Of Privacy Out Window

We all have that one friend or family member that's notorious for accidentally calling from their smartphone every so often without realizing it. Known as butt dialing (or pocket dialing if you want to be a little more tactful), the polite thing to do once you realize what happened is to hang up the phone so you don't end up hearing something you shouldn't. Or you could throw manners out the window and continue to listen to a private conversation, which may not be entirely moral, but it's not illegal.

A federal appeals court in Ohio ruled that a person who accidentally pocket dials does not have a reasonable expectation of privacy. The ruling was part of a case involving James Huff, the former chairman of the Airport Board in Kenton, Kentucky, which oversees the Cincinnati/Northern Kentucky International Airport. Huff had sued an executive assistant for recording a conversation she heard by way of a pocket dial.

The incident occurred while Huff was in Italy back in October 2013 with board vice chairman Larry Savage. They were standing on a hotel balcony discussing the possibility of replacing then-CEO Candace McGraw. At one point during the conversation, he tried to call his executive assistant, Carol Spaw, but dialed the wrong number. After putting the phone back in his pocket, he accidentally called the correct number.

Privacy

Spaw picked up the phone and could hear Huff and Savage talking, though she couldn't make out what they were saying at first. After doing the "hello!?" thing several times, Spaw picked up on what she believed was a "discussion to discriminate unlawfully against McGraw and felt that it was her responsibility to record the conversation and report it through appropriate channels," according to the ruling.

She also took notes of the conversation. Both the audio and notes were then shared with members of the Airport Board, prompting Huff to sue Spaw in December 2013. He lost the suit in an Eastern Kentucky district court.

A lower court on Tuesday agreed with the original ruling, stating that "exposure need not be deliberate and can instead be the inadvertent product of neglect." The judge likened the incident to a homeowner neglecting to cover a window with drapes, at which point the homeowner would lose any expectation of privacy to those looking in from outside his property. The example is part of the plain-view doctrine, and the judge said it applies to auditory as well as visual information.

It also didn't help that Huff admitted to having butt dialed on previous occasions and was aware that it could happen. He could have taken measures to prevent it from happening again, like setting up a passcode or using a third-party app to prevent pocket dials, but didn't.

Let that be a lesson, especially if you have a habit of butt dialing people.

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