Friday, January 31, 2014

The iPhone, Pocket-Dialing and Privacy

James and Bertha Huff sued Carol Spaw, in federal court, claiming she “surreptitiously intercept[ed] their private conversations in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968.”  Huff v. Spaw, 2014 WL 273181 (U.S. District Court for the EasternDistrict of Kentucky 2014). As Wikipedia notes, “Title III of the Act set rules for obtaining wiretap orders in the United States.”

The Huffs brought their suit under 18 U.S. Code § 2520(a), which states that

[e]xcept as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.

We will come back to the statutes involved in the suit.  To understand how they do or do not apply, it is necessary to understand what happened to trigger the lawsuit.  According to the opinion, in “late October 2013,” James and Bertha Huff attended a conference in

Bologna, Italy. They were accompanied by Larry Savage, a colleague of Mr. Huff, and Mr. Savage's wife. Mr. Huff and Mr. Savage attended the conference as representatives of the Kenton County Airport Board, which oversees the operations of the Cincinnati/Northern Kentucky International Airport (`CVG’). Mr. Huff serves as Chairman of the Board; Mr. Savage serves as Vice–Chairman.

On the evening of October 23, 2013, Carol Spaw sent Mr. Huff an e-mail inquiring whether he planned to attend a dinner engagement in Italy the following evening. This was a typical task for Spaw, and in fact part of her job duties. Spaw is employed as Senior Executive Assistant to the Chief Executive Officer of CVG, Candace McGraw, as well as liaison to the Kenton County Airport Board. In that role, one of her many tasks is to make travel arrangements for board members.

During a break in the conference the following day, Huff and Savage left the conference room and found a quiet, outdoor balcony so they could discuss Airport personnel matters, including the continued employment of McGraw. However, before diving into their discussion, Huff made sure that nobody was around to overhear what they were saying. He ensured that the door to the balcony was closed, and that no one was standing in the courtyard below. . . .

[T]he two discussed whether they would attend the business event later that evening. Agreeing they would attend, Huff attempted to call Spaw via his iPhone. He was unsuccessful in reaching her . . . apparently because he mis-dialed her number by one digit. Not knowing why the call failed to go through, Huff placed his cell phone in the breast pocket of his suit. Savage then successfully reached Spaw. He had a short conversation with her and confirmed that he and his wife, along with Mr. and Mrs. Huff, planned to attend the dinner engagement later that evening. Savage and Spaw hung up their respective phones at the [end] of their conversation.

Huff v. Spaw, supra.

The opinion says that “[s]hortly thereafter, Huff placed the now infamous `pocket dial’ to Spaw's office phone at the Airport.” Huff v. Spaw, supra. It explains that Spaw answered the

phone and could immediately hear Huff and Savage talking in the background, although she could not make out what they were saying. Spaw said `hello’ at least six times within the first minute of the call but neither Huff or Savage responded.

When neither . . . responded, Spaw placed the call on speaker phone to try to hear what they were saying. She said `hello’ several more times, but again heard no response. Spaw enlisted the help of Nancy Hill, another CVG employee, to help determine what Huff and Savage were discussing. Within the first minute and a half of the phone call, Spaw and Hill determined Huff and Savage were discussing CEO Candace McGraw's employment. Spaw instructed Hill to take down notes of what she heard.

Approximately forty-one minutes into the phone call, Spaw could tell Huff and Savage's conversation had come to an end and they had returned to the conference room. At her deposition, she. . . . [said] she remained on the line because she felt she needed to document what she perceived as inappropriate behavior. . . . [S]he felt Huff and Savage were plotting to take discriminatory action against McGraw, and possibly violate the Board's code of conduct and criminal law. She intended to remain on the line to hear if Huff and Savage made other potentially damning remarks.

Huff v. Spaw, supra.

The opinion says the conference “ended approximately one hour and ten minutes into the call.” Huff v. Spaw, supra. By that time, Spaw had “acquired” a recording device from

the Airport's IT department so she could record any conversations she deemed relevant. Spaw listened in as Huff and Savage left the conference room and walked back to their respective hotel rooms. Along the way, Spaw heard Huff and Savage talk about completely innocuous subjects such as gospel music, taking a nap and meeting in the lobby later in the evening. Spaw . . . remained on the line hoping to hear additional damning conversations.

Approximately one hour and fifteen minutes into the call, Huff returned to his hotel room where . . . Bertha was waiting. . . . Alone in their room, the husband and wife talked about innocent things like all couples do. But Huff also shared with his wife many of the details about his conversation with Savage earlier in the day, including details about Airport personnel matters. Eight-seven minutes into the call, Spaw used the recording device provided by the IT department to record the final four minutes of the Huffs' conversation. . . .

[T]he Huffs laid down on their hotel bed and. . . . continued to discuss airport personnel matters and McGraw, and Spaw continued to record what she overheard. While on the bed, Mr. Huff looked at his cell phone and realized it had an open call with Spaw's office phone.

He initially thought the call had been open for a minute and twenty-nine seconds, but later realized [it] had actually lasted one hour and twenty-nine minutes to this point. Mr. Huff testified that he immediately hung up the call. However, cell phone records indicate that the call lasted one hour and thirty-one minutes, suggesting he left the call open for an additional two minutes after first noticing it.

Huff v. Spaw, supra.

After the call ended, Spaw

took the handwritten notes and converted them into a typewritten transcript of the conversation. The . . . transcript is nothing close to a verbatim recitation of the conversations, but more akin to a summary with intermittent quotations.

Spaw also uploaded the audio recording onto her office computer, and later uploaded the recording onto a thumb drive so that it could be transferred to a third-party company to enhance the audio. Both the transcript and audio recording were eventually shared with members of the Board.

Huff v. Spaw, supra.

The opinion notes a few more relevant facts before addressing the legal issues:

[T]he Huffs knew pocket dials are relatively common in the age of smart phones. . . . Mrs. Huff admitted during her deposition that she has pocket dialed people `many times .’ . . . Mr. Huff . . . eventually admitted, `I'm certain I have [pocket dialed people]. . .  and he `believed’ he had placed previous pocket dials. . . .However, Mr. and Mrs. Huff testified that they expect the recipient of a pocket dial call to hang up once they discover they were inadvertently called.

Huff v. Spaw, supra.

The issue before the District Court Judge was the Huff’s motion for a temporary restraining order and preliminary injunction, the nature of which is not described in this opinion.  Huff v. Spaw, supra.  The judge heard oral arguments from the lawyers on each side as to why the motion should or should not granted, and during the arguments they “agreed that if the Court concludes Plaintiffs are not likely to succeed on the merits – and . . . cannot prevail as a matter of law -- then summary judgment pursuant to Rule 56(f), Federal Rules ofCivil Procedure, would be appropriate.”  Huff v. Spaw, supra.  

As Wikipedia explains, in U.S. civil practice a judge can award summary judgment for a party to a civil suit

before trial, effectively holding that no trial will be necessary. Issuance of summary judgment can be based only upon the court's finding that:

  1. there are no disputes of `material’ fact requiring a trial to resolve, and
  2. in applying the law to the undisputed facts, one party is clearly entitled to judgment. . . . 

A `material fact’ is one which, depending upon what the factfinder believes "really happened," could lead to judgment in favor of one party, rather than the other.

Huff v. Spaw, supra.

As noted above, the Huffs sued under 18 U.S. Code § 2520(a), which creates a civil cause of action for those whose communications are the target of activity that violates 18 U.S. Code § 2511.  The judge began his analysis by noting that § 2511(1)(a)((i) makes it a crime to unlawfully and intentionally intercept “any wire, or electronic communications” and § 2511(c) makes it a crime to disclose, “or endeavor to disclose” the contents of such communications knowing they were illegally intercepted.  Huff v. Spaw, supra.

At the oral arguments, the Huffs claimed that (i) the first 87 minutes of their face-to-face communications were “oral” communications but that (ii) once Spaw began recording the call the communications became “oral” and “wire” communications because they were “transmitted over wire to [Spaw’s] office telephone, and then intercepted by a recording device.” Huff v. Spaw, supra.  The judge analyzed whether either or both arguments were valid, starting with the purely “oral” communications.  Huff v. Spaw, supra.

Title III of the Omnibus Crime Control and Safe Streets Act defines “oral communication” as one “`uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation'”.  Huff v. Spaw, supra (quoting 18 U.S. Code § 2510(2)) (emphasis added). The judge noted, therefore, that § 2511 “only protects oral communications to the extent that the participants have both (1) a subjective expectation that their conversation will not be intercepted and (2) that expectation is objectively reasonable” and then analyzed whether the Huffs’ conversations met that standard.  Huff v. Spaw, supra.

The judge then analyzed whether they did, in fact, satisfy that standard:

[The Huffs] unquestionably did not expect that their face-to-face conversations would be intercepted. The very nature of their conversations compels this conclusion. Certainly [Huffs] and Savage would not have openly discussed private Airport personnel matters, including possibly replacing the CEO, knowing others might be listening. Moreover, their actions showed they did not intend others to overhear or intercept their conversations.

A significant portion of the intercepted communications took place in two places: a private balcony and a hotel bedroom. Mr. Huff was alone with Savage on the balcony, and ensured no one was around before discussing personnel issues. Similarly, [he] was alone with his wife in their hotel room when he recounted his previous conversation with Savage. Under these circumstances, [the Huffs] clearly expected that their conversations would remain private and free from interception. . . .

Huff v. Spaw, supra.

He reached a different conclusion as to whether the expectation was reasonable:

Here, the question is whether it was objectively reasonable for [the Huffs] to expect [Spaw] would not answer the inadvertently placed phone call, remain on the line and listen to [their] face-to-face conversations, and record a small portion of the call.

The Court concludes society is not prepared to recognize [their] expectation as reasonable. . . . At their depositions, both [Huffs] agreed they had placed `pocket dial’ calls from their cell phones in the past. . . . Mr. Huff knew he was carrying his cell phone; he had just hung it up and placed it in his pocket when he began the conversations at-issue in this case. Thus, he knew he was carrying a device that was capable of giving a third party audible access to his conversations without him ever knowing. Knowing that, it is unreasonable for him to expect that anything he says while carrying that device will remain free from interception as it was done here. . . .

Society has come to accept the fact that people often place inadvertent calls from their cell phones. This fact has become so well accepted that society has given the technological annoyance a name: the `pocket’ or `butt’ dial. . . . And society recognizes the consequences of a pocket dial. . . ., states that `. . . . the recipient is likely to know the caller, and may overhear conversations that the caller would not want them to hear.’ Pocket Dialing,—dial (last visited Jan. 24, 2014) (emphasis added).

That is exactly what happened here. Because society recognizes that this is a consequence of carrying a cell phone, the Court simply disagrees with [the Huffs] that they had an objectively reasonable expectation that [Spaw] would not listen in to their face-to-face conversations.

But what about the fact that [Spaw] listened for ninety-one minutes and recorded the last four minutes of the call? [The Huffs]. . . . agree there was nothing wrong with [her] answering the pocket dial. But they take issue with the fact that [she] remained on the line for so long even though Mr. Huff never engaged her in conversation. [The Huffs] believe society is willing to recognize that it is reasonable to expect a recipient of a pocket dial to hang up once she discovers that the call was inadvertently placed.

The Court disagrees. While it may be polite for the recipient to hang up once she discovers she has received a pocket dial, it is not reasonable to expect everyone to do so. If an individual wants to keep his conversations private, the onus is on him to do so. He cannot give another person access to his conversation and then put the burden on that individual to determine that she should take no part in it. Therefore, the court finds that [the Huffs’] expectation of non-interception was unreasonable here.

Huff v. Spaw, supra. The judge concluded this part of his analysis by noting that “[i]f If anyone must bear the brunt of the embarrassing consequences of this pocket dial, it must be the caller; not the recipient who had every right to answer the call and remain on the line.”  Huff v. Spaw, supra.

The judge then addressed whether the case involved “wire” communications.  Section 2510(1) of Title18 of the U.S. Code defines “wire communication” as

any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception . . . furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce and such term includes and electronic storage of such communication.

Huff v. Spaw, supra. 

The Huffs claimed the case involved wire communications because “there was an aural transfer between themselves and [Spaw], which was transmitted in part by wire to [her] office telephone and then intercepted by [Spaw] via the recording device.” Huff v. Spaw, supra.  The judge did not agree, finding that 18 U.S. Code § 2510(1) required him to

identify the aural transfer's point of origin and point of reception and then determine . . .  whether the transfer was made in whole or in part `by the aid of wire, cable, or other like connection.’ See 18 U.S. Code § 2510(1). [The Huffs] identified [Spaw’s] office telephone as the point of reception, which, if true, would make the aural transfer a `wire communication.’

But [her] office telephone was not the point of reception; Mr. and Mrs. Huff, having a face-to-face conversation, were the point of origination and reception. [Spaw’s] office phone was the `electronic, mechanical, or other device’ used to intercept [the Huffs’] face-to-face conversation. See 18 U.S. Code § 2510(5). The recording device served as an additional device used to enhance the interception of the office phone.

Because there was no `oral, cable, or other like connection between Mr. and Mrs. Huff, their conversation was not a `wire communication’ as that term is defined by § 2510(1).

Huff v. Spaw, supra. 

He therefore held that

[h]aving failed to establish that they were engaged in a type of communication that is protected by the Act, [the Huffs] cannot bring a cause of action against [Spaw] under 18 U.S. Code § 2520(a) for any violation of 18 U.S. Code § 2511. [Spaw is] therefore entitled to judgment as a matter of law on each of Plaintiffs' federal claims.

Huff v. Spaw, supra. 

So, that ends the case unless and until the Huffs can convince the U.S. Court of Appeals for the 6th Circuit to reverse the judge’s ruling.  Huff v. Spaw, supra. 

If you are interested, you can see a photo of Mr. and Mrs. Huff and read more about the case here.  The news story you can find here provides more details about the facts in the case.

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