We have new case law on butt-dialing. Like, an appellate court has actually weighed in on whether or not you have a legitimate expectation of privacy when you accidentally call somebody on your phone. And it turns out you have no expectation of privacy. If you accidentally dial somebody, anything you say that the person on the other end of the phone overhears can be recorded and disseminated and generally be used like you are shouting from a rooftop.
That this even came up in a court case is the result of a weird situation. James Huff and another board member of the Cincinnati/Northern Kentucky International Airport accidentally redialed his assistant, Carol Spaw. Huff then proceeded to talk about firing people for over 90 minutes. Huff even went to his hotel room and continued talking to his wife. Spaw recorded the conversations and shared her notes with colleagues and the media.
At Above the Law, we know a little something about reporting on overheard conversations about impending layoffs. In our case, we had a jackass talking loudly on the Acela. It was clearly legal for us to report on the overheard conversation. In this case, Huff sued Spaw under wiretapping statutes, alleging that she had illegally recorded a private conversation without consent.
The court didn’t buy it. Judge Daniel Boggs analogized Huff’s butt-dial to leaving your curtains open. If you accidently give people a free show, they have the right to look. From Bloomberg:
“A person who knowingly operates a device that is capable of inadvertently exposing his conversations to third-party listeners and fails to take simple precautions to prevent such exposure does not have a reasonable expectation of privacy,” Boggs wrote.
Now, there are some additional questions that Boggs punted back down to the trial court to figure out. Spaw amplified the phone call and dropped out some of the background noise in order to hear the conversation more clearly, which might be a violation. Also, Huff’s wife potentially had an expectation of privacy while talking to her husband that survives his boneheaded move.
But, bottom line, if you get butt-dialed by your boss, don’t hang up! You never know what you are going to hear.