Butt dialing, a source of anxiety for anyone with a cellphone, just got more horrifying.
A federal appeals court in Cincinnati ruled yesterday that somebody who accidentally calls somebody else isn't protected by a right to privacy; whatever the person on the other end hears is fair game. Having a mobile device that everyone knows can trigger calls accidentally means you can be snooped on when the gut-wrenching mistake occurs, the panel of judges decided. Having a butt has never been more dangerous.
This is only the second time a court case has used the phrase "butt dial," as far as Eric Goldman, a law professor at Santa Clara University in California who directs the school's High Tech Law Institute, knows. The other case involved a man charged with violating a protective order by leaving a voicemail on a woman's phone that he said was inadvertent. "I can't recall other cases using these unintended calls by accidental operation of human physiology," Goldman said. The issues has also cropped up when people sent faxes to the wrong number. In general, the courts have been more sympathetic to the side that accidentally transmits the information than to the person who listens in. Not this time.
Another surprise in the latest case is the crazy backstory spelled out in the court documents: Two members of the board of the Cincinnati/Northern Kentucky International Airport were in Bologna, Italy, in October 2013, when one of them called Carol Spaw, the assistant to the CEO of the airport, to ask her to book a dinner reservation for them. (Why did they need the assistant in Kentucky to book their dinner in Bologna? Crazy.) After the call, the now ex-chairman of the board, James Huff, put his cellphone in his suit pocket and somehow (we know how) dialed the assistant's office number without knowing it. She said hello several times; the directors didn't hear her. They began talking about replacing her boss.
Enterprising assistant that she is, Spaw put the phone on speaker and proceeded to take meticulous notes on everything the directors said, according to the court records. The call lasted 91 minutes. (91 minutes and this guy didn't check his phone once? Crazy.) Eventually Spaw started recording what they were saying on an iPhone. Toward the end of the call, Huff returned to his hotel room and recapped the conversation about firing the CEO with his wife, Bertha Huff, just in case Spaw didn't hear it clearly the first time. Spaw got the iPhone audio file professionally enhanced, typed up her notes, and shared copies of both media with other members of the board.
The Huffs sued Spaw that year, charging that she had violated a federal wiretap act that makes it illegal to intentionally intercept electronic or oral communications. The district court ruled for Spaw. The Huffs appealed last year. In the appellate decision, Judge Danny Boggs said butt dialing was kind of like accidentally leaving your window uncovered. You aren't legally protected from people looking into your home.
Goldman, the law professor, questions that reasoning. "Leaving your curtains open is a conscious choice," he said. You wake up in the morning and decide to open them or not. "Butt dialing might be in a different category of conscious decisions. But the court sees it as sloppiness," he said.
The Huffs argued that if the court ruled against James, it would be tantamount to exposing all cellphone users to invasions of privacy. The judges weren't moved, Boggs said, since everyone with a cellphone can do really simple things to prevent butt dials, like locking their phone. He kindly provided a link to "Prevent Unwanted Butt Dialing With Smart Pocket Guard," a review of an app that James Huff might have downloaded to prevent the fiasco.
"A person who knowingly operates a device that is capable of inadvertently exposing his conversations to third-party listeners and fails to take simple precautions to prevent such exposure does not have a reasonable expectation of privacy," Boggs wrote.
The judges did say that Bertha, James's wife, had a reasonable expectation to privacy, since she was talking to her husband in their hotel room. The panel sent the case back down to the district court to decide whether Spaw, the assistant, was legally liable for intentionally intercepting Bertha's communications when she turned up the volume, took copious notes, and fetched an iPhone to record the call.