This week’s Huff v. Spaw case concerning conversations overheard by the recipient of an accidental call starts out innocuously enough. According to court documents:
According to forbes.com:
This case requires us to consider whether a person who listens to and subsequently electronically records a conversation from an inadvertent “pocket-dial” call FN1 violates the Wiretap Act.
The court’s substitution of the polite term “pocket dial” for what is generally known as “butt dial” and then footnoting it is rather humorous.
FN1 The term “pocket-dial” refers to the accidental placement of a phone call when a person’s cellphone “bump[s] against other objects in a purse, briefcase, or pocket.”
But the only funny thing about this case is seeing the court maintain decorum by avoiding use of the term “butt dial.” The case itself is decidedly not funny.
The facts of the case are long and can be found in detail here. But the bottom line scenario is this: You are out of the United States on a trip. You have a cellphone in your pocket and since it’s not turned off, you accidentally “pocket dial” someone in the U.S. while you are having face-to-face conversations with a business colleague and later, with your spouse. The person whose number you accidentally butt-dialed records your conversation, unbeknownst to you. Your conversation did not reveal criminal attacks (to which a different law and standards apply). Regardless, under these circumstances, you do not have a reasonable expectation of privacy in any communications you unknowingly make through that cell phone in your pocket that you thought was disconnected.
Under the court’s reasoning, your reasonable expectation of privacy is defeated if the objects, activities, or statements that you expose to the ‘plain view’ of outsiders are not “protected” because you had no intention to keep them to yourself.It is a stretch of reason to conclude that under the scenario posited you did not have an intention to keep the conversations to yourself. But that’s what the Sixth Circuit Court of Appeals held this week.
It does not help your plight if you make an accidental call from outside the United States. The court also held that the relevant location for jurisdiction under the Wiretap Act is not where the conversations took place, but where the party used a device to acquire the contents of those conversations. Thus, U.S. law applied, it held.
Your best defense against unwanted use of information by others that you may inadvertently divulge through a call you did not intend to make from a phone you have in your pocket (or that can be accidentally turned on from elsewhere, such as a desk drawer) is to turn the phone off. I did not find an app that worked to block calls entirely.
A good solution to help prevent (but not entirely prohibit) accidental messages is a call confirmation program like Call Confirm. This app prevents a single accidental tap from dialing a number. A second affirmative tap is required to confirm that you intend the call to go through. This extra step may be enough to prevent most pocket dialed calls from actually connecting. Otherwise the best solution is to power off the phone while not in use. If you must keep the phone turned on, Call Confirm is a very strong preventive measure.
If all else fails and a misdialed call connects, Butt Dialed, is a free Android app that gives you a way to create and send a semi-automated text message apologizing for a misdial. For this, you have to affirmatively open the app and send the message. It does not block unwanted misdials. It does, however, make sending that sometimes-needed apology a tiny bit easier.
PLEASE SIGN THE PETITION TO
Fire Obama Lackey National Security Adviser H.R. McMaster