The Sixth Circuit Court of Appeals held that there’s no reasonable expectation to butt-dialing. Of course, they call it “pocket dialing” to avoid our snickering, but we all know what they mean. (Yeah, I know that “pocket dialing” is more accurate.)
James Huff, Chairman of the Kentucky International Airport Board (the “Board”), inadvertently dialed Carol Spaw, the Board liaison, during two conversations in which Huff allegedly conspired to discriminate unlawfully against Candace McGraw, the CEO of the Kentucky International Airport. The first conversation was with Vice Chairman of the Board, Larry Savage by telephone, so Spaw couldn’t hear what Savage was saying. Huff’s second conversation was with his wife, Bertha, who was in the room with him, so Spaw could hear what she was saying. Spaw disclosed the contents of the call to other members of the Board.
Huff and his wife, Bertha, sued for a violation of Title III of the Omnibus Crime Control and Safe Street Act of 1968 (a.k.a., the Wiretap Act). The trial court ruled for Spaw as a matter of law, saying there was no reasonable expectation of privacy in the conversation. In short, Huff should have been more careful. The Sixth Circuit held that Huff himself couldn’t sue, but sent the case back down to the trial court to determine whether Bertha Huff could sue. It was James’s neglect that resulted in the eavesdropping, but Bertha can’t be held liable for that.
So, even though the butt-dialer in question can’t sue, if the eavesdropper can hear what the other person involved in the conversation is saying, there could still be liability. Nevertheless, this is a helpful reminder of the consequences of butt … errrrr, pocket dialing.
The case can be found here.
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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with First Class Title, Inc., a Maryland title insurance and settlement company. Rob is also a licensed title insurance agent in Florida, Maryland, Pennsylvania, and Virginia.