Antitrust Law Daily Wrap Up, PRIVACY—6th Cir.: Spouse had privacy expectation when husband placed “pocket dial” telephone call, (Jul 22, 2015)

By Linda O’Brien, J.D., LL.M.

While in a hotel room on a business trip, the spouse of an airport board executive had a reasonable expectation of privacy from interception of conversations with her husband about airport personnel matters that were overheard by a third party when he inadvertently placed a call on his smartphone, the U.S. Court of Appeals in Cincinnati has ruled. However, the airport executive had no reasonable expectation of privacy when he failed to take precautions against inadvertent transmissions when using his smartphone. Thus, the district court’s grant of summary judgment, dismissing the complaint, was affirmed in part and reversed in part (Huff v. Spaw, July 21, 2015, Boggs, D.).

James Huff was Chairman of the Kenton County, Kentucky Airport Board, which oversees the Cincinnati/Northern Kentucky International Airport (CVG). In October 2013, Huff traveled to Italy with his wife, Bertha, and Airport Board Vice Chairman Larry Savage for a business conference. In his hotel room after a conference meeting, Huff unsuccessfully attempted to contact Carol Spaw, assistant to CVG chief executive officer Candace McGraw, regarding travel arrangements. While placing the telephone in his pocket, Huff inadvertently placed a call to Spaw. As a result of the call, Spaw was able to overhear conversations between Huff and Savage and Huff and his wife, discussing the possibility of replacing McGraw as CEO.

Spaw took notes and recorded portions of the two conversations regarding McGraw and provided the information to other Airport Board members. Bertha and James Huff filed a complaint, alleging that Spaw intentionally intercepted their oral communications, disclosed the contents of those intercepted oral communications, and used the contents of the intercepted oral communications in violation of 18 U.S.C. §2511(1) (Title III). The district court granted summary judgment to Spaw, holding that the Huffs’ conversations were not protected under Title III because any expectation that their conversations would not be intercepted was not reasonable under the circumstances. The Huffs appealed.

Expectation of privacy. The district court properly found that James Huff lacked a reasonable expectation of privacy in his statements to the extent that a third party gained access to those statements through a phone call he placed. Looking to the decision in McKamey v. Roach, 55 F.3d 1236 (1995), the appellate court noted that the principle that a person does not have a reasonable expectation of privacy when he knew or should have known that the operation of a device might grant access to his statements is applicable to Title III.

In this case, James Huff admitted that he was aware of the risk of making inadvertent “pocket dial” calls and had previously made such calls on his smartphone. A number of simple and well known measures can prevent pocket dial calls from occurring — locking the phone, setting up a passcode, and using a download application to prevent pocket dials. However, Huff did not employ any of these measures. Thus, a person who knowingly operates a device that is capable of inadvertently exposing his conversations to third parties and fails to take simple precautions to prevent such exposure does not have a reasonable expectation of privacy when those statements are exposed to an outsider by the inadvertent operation of that device, the court determined.

However, Bertha Huff’s expectation of privacy from interception was justified under the circumstances. According to the appellate court, her awareness that her husband may have been carrying an interception-capable device did not displace her expectation of privacy. Having a conversation in one’s home generally exhibits an expectation of privacy, and hotel rooms are treated as homes for privacy purposes. Because Bertha Huff made statements in the privacy of her hotel room, was not responsible for exposing those statements to a third party, and was unaware of the exposure, she exhibited an expectation of privacy.

Spaw’s argument that her conduct did not qualify as interception, since she did not interfere with the telephone line, was rejected. The appellate court noted that non-interference with a telephone line did not, by itself, prevent an instance of eavesdropping from qualifying as an interception if the eavesdropping occurred without the consent of at least one party to that conversation, as was the case with the Huffs.

In reversing the district court holding that Bertha Huff did not engage in oral communications, the appellate court remanded the case for consideration of whether Spaw’s actions of answering the phone, turning up the volume, transcribing notes of the conversations, and making an electronic recording constituted an “intentional use of a device” to intercept Bertha Huff’s oral communications.

The case is No. 14-5123.

Attorneys: Aaron A. Vanderlaan (Arnzen, Molloy, Storm & Turner, P.S.C.) for Bertha Huff and James Huff. Jonathan B. Allison (Freking & Betz, LLC) for Carol Spaw.

Companies: Kenton County, Kentucky Airport Board

Cases: Privacy KentuckyNews MichiganNews OhioNews TennesseeNews