Sixth Circuit Rules That 'Pocket Dials' May Not Be Entitled To An Expectation Of Privacy

In a move that may strike fear into the hearts of mobile phone owners everywhere, the Sixth Circuit recently ruled that a person's "pocket dials" - those inadvertent calls made from a person's mobile phone, generally when the phone is in its owner's pocket, and alternatively referred to as "butt dials" - may not be entitled to an expectation of privacy.

The facts of the case read like a nightmare scenario for those many mobile phone owners who already live in fear of making an accidental call to the wrong person at the wrong time. The plaintiff was the Chairman of the Kenton County, Kentucky Airport Board. While on a business trip to Italy, he inadvertently "pocket dialed" his colleague, the Senior Executive Assistant to the CEO of the Cincinnati/Northern Kentucky International Airport. During the 91-minute pocket dial, the Chairman and a colleague discussed personnel matters, including whether or not to replace the airport CEO. Meanwhile, the assistant listened to and even recorded part of the call, and took notes on what was being discussed. The assistant later argued that she believed she heard the Chairman and his colleague conspiring to engage in unlawful discrimination against the CEO, and felt obligated to take notes to document the conversation in order to report it. The assistant subsequently shared her notes and the audio of the call with the other members of the Airport Board.

The Chairman and his wife (who spoke to the Chairman for part of the pocket dial and therefore was overheard by the assistant) then filed a complaint against the assistant, alleging that she had violated Title III of the Omnibus Crime Control and Safe Street Act of 1968, 18 U.S.C. § 2510 et seq. (also known as the Wiretap Act). The Wiretap Act forbids the intentional interception of "any wire, oral, or electronic communication." 18 U.S.C. § 2511(1)(a). It also prohibits a person's intentional disclosure or use of "the contents of any wire, oral, or electronic communication" when a person knows or has reason to know "that the information was obtained through the interception of a wire, oral, or electronic communication." 18 U.S.C. § 2511(1)(c)-(d).

However, the Sixth Circuit ultimately agreed with the district court that the Chairman's pocket dial was not an "oral communication" as defined by the Wiretap Act, and therefore fell outside the scope of the Act's protection. The court began its analysis by citing to one of its earlier decisions in which it had...