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August 16, 2015 Practice Points

No Reasonable Expectation of Privacy in So-Called "Butt Dialed" Calls

According to the court, a butt dial is akin to leaving one’s curtains open to the public street, putting an otherwise private home in plain view.

By Eileen H. Rumfelt – August 16, 2015

The Sixth Circuit held on July 21, 2015, that a person who inadvertently “butt dials” someone has no reasonable expectation of privacy in conversations overheard during the inadvertent transmission. According to the court, a butt dial is akin to leaving one’s curtains open to the public street, putting an otherwise private home in plain view.

James Huff, the chairman of the Kenton, Kentucky, airport board, inadvertently dialed Spaw, an executive secretary to the airport’s CEO. He then had a conversation with a colleague on a hotel balcony about potentially terminating the airport CEO (Spaw’s boss) and later discussed the same topic with his wife in a private hotel room. Spaw listened to and took notes of the majority of the 90-minute conversation, and recorded a short portion. She presented her transcription and recording to the airport board.

Huff and his wife sued Spaw under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq., for intentionally intercepting a covered communication. Central to the court’s analysis was whether the Huffs had a reasonable expectation of privacy in communications he exposed, albeit inadvertently. The court determined that the analysis hinges on whether the person exhibited an expectation of privacy by taking sufficient precautions. Huff was aware of the risk of inadvertent pocket dials and admitted he had made them before. He nonetheless did not lock his phone or set up a passcode and was, in the court’s view, “no different from the person who exposes in-home activities by leaving drapes open or a webcam on and therefore has not exhibited an expectation of privacy.”

Huff’s wife, however, did not waive her reasonable expectation of privacy simply by having a conversation with a person she knew to be carrying a modern smartphone. Her conversation was in a private room and “we do not require Bertha Huff to exhibit an expectation of total privacy—e.g., by searching her husband and forcing him to turn off his phone—in order to be protected.”

Eileen H. Rumfelt, Miller & Martin PLLC, Atlanta, GA

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