While Federal Law recognizes the “one-party” consent rule many states, like Pennsylvania still require the consent of all parties before a person can legally tape a telephone conversation.
But in today’s fast paced world where we are inundated with electronic devices including cellular telephones with built in video and voice recording devices that are so user friendly children can manipulate them before they can even walk – has the notion of an expectation of privacy simply vanished?
Picture the all too common scenario of the cell phone in a person’s back pocket. Well, what happens when the person inadvertently dials someone – and the person who is called by mistake and is now in a position to hear a conversation you are having with someone else? Can he/she be held liable if they tape your conversation? Can he/she be held liable if they publicize what they hear? Is the person eavesdropping? Should they be required to hang up?
Well, according to the Sixth Circuit of the United States and the Eastern Distirct of Kentucky below it, the person mistakenly called need not hang up. Indeed, he/she may listen in to the call. And doing so will not make them liable even though the speaker did not intend his/her comments to go beyond the conversation in which they were being made.
The issue stemmed from a case where an executive was traveling with his wife and a board member of the company he oversaw1. The executive was speaking rather openly and freely to his wife and the other member discussing sensitive personal issues as well as professional matters such as replacing the company’s chief executive officer. What the executive did not know is that for a period of approximately 90 minutes someone else was listening in because he had inadvertently dialed an employee of the company. This employee took it upon herself to not only listen to the conversation but to take notes and even record portions of the conversation that she would later share with others. When the executive learned of these events he and his wife brought suit against the employee alleging intentional interception of their communications in violation of federal law.
The district court disagreed holding that it was not reasonable for the executive and his wife to expect that their conversation couldn’t be intercepted. Because of the vast number of calls made inadvertently just like this one, society, the court explained is immune to such events. Indeed, the Court recognized that the mishap has taken on its own name – the “butt dial” or the “pocket dial.” Therefore plaintiff’s purported expectation that his call would not be intercepted under such common circumstances was found not reasonable. On appeal, the Sixth Circuit agreed holding the executive had no reasonable expectation of privacy and if in fact he wanted to avoid such mishaps there were procedures he could have taken to ensure his privacy such as turning off his phone. However, as far as his wife was concerned, the Sixth Circuit found that she had a reasonable expectation of privacy that could not be waived simply by speaking with someone who was carrying a cellphone. That part of the case was remanded back to the district court for further consideration.
So the next time you and a friend or colleague are talking freely, be aware you may not be alone. Check you cell phone, check it twice or better yet . . . leave it home or turn it off! If you believe your privacy rights have been invaded, contact an attorney and schedule a free consultation to discuss your rights.
1 Huff v. Spaw, 995 F.Supp.2d 724 (E.D. Ky. 2014), rev’d in part 2015 WL 4430466 (July 15, 2015).