Academic journal article Harvard Law Review

Privacy Rights - Federal Wiretap Act - Sixth Circuit Finds No Reasonable Expectation of Privacy in Oral Communications Transmitted Via Pocket Dial

Academic journal article Harvard Law Review

Privacy Rights - Federal Wiretap Act - Sixth Circuit Finds No Reasonable Expectation of Privacy in Oral Communications Transmitted Via Pocket Dial

Article excerpt

PRIVACY RIGHTS--FEDERAL WIRETAP ACT--SIXTH CIRCUIT FINDS NO REASONABLE EXPECTATION OF PRIVACY IN ORAL COMMUNICATIONS TRANSMITTED VIA POCKET DIAL.--Huff v. Spaw, 794 F.3d 543 (6th Cir. 2015).

The Federal Wiretap Act (1) (Title III of the Omnibus Crime Control and Safe Streets Act of 1968), which governs when interception of oral and wire communications is permissible, (2) was not drafted with pocket dials (3) in mind. This statute aims to prevent unlawful government interceptions of private individuals' communications, while simultaneously empowering law enforcement agents to deploy wiretap technologies in legitimate ways. (4) Yet Title Ill's application also reaches some communications intercepted by private parties. (5) Recently, in Huff v. Spaw, (6) the Sixth Circuit held that an individual whose pocket dial was intercepted and recorded by a private party enjoyed no reasonable expectation of privacy and therefore could receive no civil remedy under Title III. Though this conclusion accords with precedent, it may clash with privacy expectations by allocating contemporary privacy risks in unexpected ways. A better standard would reflect private citizens' daily reliance on technology and balance the apportionment of responsibility by also taking into account the reasonableness of the defendant's actions.

In fall 2013, James Huff (Huff), his wife Bertha Huff, and his colleague Larry Savage traveled to Italy for a business conference. (7) Huff was chairman of the Kenton County Airport Board (Board), which manages the Cincinnati/Northem Kentucky International Airport (CVG). (8) After a meeting at the conference, Huff and Savage adjourned to an outdoor balcony at the hotel and discussed CVG personnel matters--including possible replacement of CVG's CEO. (9) Sometime during this conversation, Huff called Carol Spaw, a senior executive assistant to CVG's CEO who also served as a liaison to the Board. (10) Unable to reach her, Huff hung up and placed his iPhone in his jacket pocket. (11) Savage then reached Spaw using his own cellphone, after which the men continued to discuss CVG personnel matters for the better part of an hour, attended another meeting, and then returned to their respective hotel rooms, where Huff met his wife, Bertha, and recounted his conversation with Savage. (12) Unbeknownst to Huff, his iPhone had dialed Spaw's office line soon after he had put the phone in his pocket. (13) Spaw had answered and said "hello"; receiving no reply, Spaw enlisted a coworker to discern what the men were discussing. (14) Spaw grew concerned that the men were unlawfully discriminating against the CEO and started to take notes until approximately eighty-six minutes into the transmission, when she began using a company iPhone to record the call. (15) At eighty-nine minutes, Huff realized that a pocket dial had occurred. (16) After the transmission ended, Spaw typed up her notes, hired a company to improve the recording, and shared this information with others on the Board. (17)

In late 2013, the Huffs filed a complaint against Spaw in the United States District Court for the Eastern District of Kentucky, alleging intentional interception, disclosure, and use of wire and oral communications in violation of Title III. (18) The trial court entered summary judgment for the defendant. (19) Since an "oral communication" receives Title III protection only if it was made with an objectively reasonable expectation that it would not be intercepted, the court's determination that, as a matter of law, Huff had no such expectation meant that no Title III violation could have occurred. (20)

The Sixth Circuit partially affirmed the district court. Writing for the unanimous panel, Judge Boggs (21) found that James Huff lacked a reasonable expectation of privacy to support his Title III claim, but reversed and remanded to determine whether Spaw's actions represented an interception of Bertha Huff's oral communications in contravention of Title III. …

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