The Sixth Circuit Court of Appeals has ruled that if you accidentally call someone and don't take reasonable steps to prevent it, you don’t have an expectation of privacy if that person listens in.

Kentucky executive James Huff accidentally called his assistant for over 90 minutes—and she listened in on an in-person conversation he was having. In this case, the court specifically found that Huff could not sue the assistant for violating a federal wiretap law. This was largely because Huff was aware of steps that he could have taken to prevent a pocket dial, such as locking the phone.

"James Huff did not employ any of these measures," the court concluded earlier this week. "He is no different from the person who exposes in-home activities by leaving drapes open or a webcam on and therefore has not exhibited an expectation of privacy."

Good intentions

At the time, Huff was the board chairman of the local board that oversees the Cincinnati/Northern Kentucky International Airport (CVG). In October 2013, Huff traveled to Bologna, Italy for a work conference along with another executive, Larry Savage, and his own wife, Bertha Huff.

The two men went out onto a hotel balcony to discuss work-related issues and personnel matters. At some point, Huff called executive assistant Carol Spaw, on her cellphone to see if she could make dinner reservations for the pair. (Spaw's job was to help make travel arrangements for board members, but she was also the direct senior executive assistant to CEO Carol McGraw.) However, the call did not connect due to a misdial. So then, Huff successfully called Spaw on her office phone. Shortly thereafter, Huff’s phone, which was in his breast pocket, called Spaw back on her cellphone for 91 minutes—but Huff did not realize it.

Spaw took the call and quickly realized that Huff did not know the call had connected, and she began listening in on the call as it pertained to possibly replacing McGraw. The assistant believed that the conversation illustrated the two men’s attempt to unlawfully discriminate against McGraw, and Spaw felt that it was her duty to take handwritten notes of the call. She instructed another colleague to do the same.

After 70 minutes, Huff ended the balcony meeting and the two men returned to their respective rooms, where Huff met up with his wife and they discussed both the previous conversation with Savage and their own personal matters. Meanwhile, Spaw managed to record the last four minutes of the conversation on an iPhone that was brought to her. She then shared the notes and the recording with other board members.

You've heard of Title III wiretaps, right?

Two months later, the Huffs sued Spaw for unlawfully intentionally intercepting the call and disclosing those interceptions, an alleged breach of the 1968 wiretap law known as "Title III."

Spaw won summary judgment in January 2014, but the Huffs appealled. The District Court in Kentucky found that the Huffs did not have a reasonable expectation of privacy in that circumstance.

However, the Sixth Circuit overturned the portion of the suit pertaining specifically to Bertha Huff.

"Because Bertha Huff made statements in the privacy of her hotel room, was not responsible for exposing those statements to an outside audience, and was (until perhaps the final two minutes) unaware of the exposure, she exhibited an expectation of privacy," the judges found.

The appellate court agreed with the portion of the lawsuit pertaining to James Huff (dismissing it), but it reversed the lower court’s decision and sent back Bertha Huff’s portion for review.

Neither Huff’s lawyers nor Spaw’s lawyers immediately responded to Ars’ request for comment.

UPDATE 3:30pm CT: Aaron VanderLaan, the attorney for the Huffs, wrote Ars: "We have not made a final decision as to seek further review by an en banc panel of the Sixth Circuit, and we are not aware of whether Ms. Spaw will seek further review."

A new frontier?

For now, some legal experts are concerned at the precedent that this case may set.

"It's a case that seems trivial, almost funny, but it raises an important issue: how will our new technologies interface with our old and vital civil liberties?" Neil Richards, a law professor at Washington University in St. Louis, told Ars by e-mail.

"It might seem like a case about pocket-dialing, but it's really a case about how much constitutional protection we will have for our data, which can reveal so much about our activities and our identities. The court probably got this one wrong, but the good news, the big picture, is that the Supreme Court sees the big picture and is starting to extend serious constitutional protection to our phones, computers, and the sensitive data they contain."

Fred Cate, a law professor at Indiana University, called the decision "nonsensical."

"[It] reflects how far removed the constitutional law of privacy has become from common sense and the expectations of ordinary people," he e-mailed.

"The analogy to covering a window with drapes is especially troubling. If you fail to cover a window with drapes, you are visible to everyone who can see in from the public right of way. This is completely different from mis-dialing or butt-dialing a phone. There is a tension inherent in what costs a person wishing to protect his or her privacy must pay, as opposed to the costs that a government wishing to invade individual privacy must pay. So we require people to take obvious steps to protect their own privacy—such as close the door or put private communications in an envelope rather than on a postcard. The Sixth Circuit’s decision further shifts the cost of protecting privacy onto individuals by requiring them to power down or lock or remove the battery from their phone when not in use."

However, others felt that the court got it mostly right but noted that the eavesdropping was enabled largely by Huff himself.

"I do not read the court’s decision as establishing a blanket rule against pocket-dialing," Brian Owsley, a former federal judge, and current law professor at the University of North Texas, told Ars by e-mail.

"The court focused on Mr. Huff’s preexisting knowledge of this problem and his awareness that he had done it before as well as the fact that he knew of measures to avoid it, but declined to implement. Privacy is a two-way street. The laws and the courts need to afford citizens protections from privacy invasion. And on some level, that is what statutes like Title III or the Fourth Amendment do. However, people have to take responsibility for their own privacy as well and Mr. Huff seemingly did fail in this regard. At a minimum, he should have a passcode locking his cell phone from being accessible to anyone who picked it up. That step would have gone a long way toward safeguarding what happened to him. So on some level, Mr. Huff is not very sympathetic as a plaintiff."