I am about to tell you a story by way of summarizing a lawsuit about a biz guy, a pocket-call, his having a right
he might have thought have had but didn’t, and his wife’s actual rights.  A twisted tale, true?  The point of telling the tale here is to ask
readers to imagine that the biz guy was lawyer.
There’s another blank to fill in, and I’ll do that later.
            The case is Bertha Mae Huff, James Harold Huff v. Carol Spaw, No. 14-5123
(United States Court of Appeals for the Sixth Circuit, July 21, 2015). James
will be “H,” partly as an abbreviation for “Huff” and partly as a substitute
for husband. Bertha will be “W,” for obvious reasons. “F” will be for colleague
and friend and “L” will be for Spaw, the “Listener” (“L”)
            H was the Chairman of an outfit that
runs the Cincinnati/Northern Kentucky International Airport. H and F were on a
biz trip in Italy, and W was tagging along.
H and F were on an outside balcony when H “made” a pocket call to L. He
did not realize that he had done this, although he had called her a few minutes
before to have her make a reservation at a restaurant there in Italy for that
evening. L worked for the CEO—Senior Executive Assistant—of the airport.  She found the content of the conversation
interesting, so she adjusted gadgets to make it more hearable and got another
person involved in listening.  They took
notes and typed them up. In addition, L recorded the last few minutes of 91±
minutes of talking. L said that she thought F and H were planning personnel
chicanery, including the replacement of CEO, her boss. (Today, it appears that
H is gone from the Board and CEO is still CEO.) L disseminated what she had.
            H and W sued L for invasion of
privacy under Title III of the Omnibus Crime Control and Safe Street Act of
1968, 18 USC §2510 et seq. That criminal statute also creates a civil cause of
action based upon breach of privacy in its §2520(a) for act and activities
which violate the criminal portions of the statute.  H and W relied upon this statute.
            Under established court opinions “a
person engages in protected oral communication only if he exhibits ‘an
expectation of privacy that is both subjective and objectively reasonable.” The
statutory history of Title III supports this view.  To pass this test a person must actually
believe that he has such an expectation, that the public would find it
reasonable, and he must have exhibited that expectation.  Thus believing that one has a right to
privacy in a given situation is not enough, the expectation must be exhibited
(or, to put it differently, the intention to be private must be exhibited). Of
course—that is something which must be carried out in public—inferable from
actions and not just subjective states.
            The court held that H placed the
pocket-call to L and was not careful to make sure that it did not happen or did
not get cut off indicates that he did not exhibit his expectancy that he was in
a private situation.  He was very much
like the man standing at the big (“picture”) window in his living room so that
his nakedness is in plain view. 
The principle that a person does not exhibit a
reasonable expectation of privacy when he knew or should have known that the
operation of a device might grant others access to his statements or activities
is applicable to the Title III context as well [as it is to others]. . . . At
his deposition [H] admitted that he was aware of the risk of making inadvertent
pocket-dial calls and had previously made such calls on his cell phone.
            Thus, H had no right of privacy and
so there was no violation of Title III. The district court had it right and was
affirmed as to H. It is not necessary to look at the conduct of L to determine
whether she violated Title III.
            But what about W? She didn’t make
the call, and she had nothing to do with it.
All she was was present in a hotel room, generally thought of as a
substitute for home, and carrying on a conversation with a person who has
unknowingly made a pocket-call.  Because
of this analogy, W thereby exhibited an expectation of privacy and it is of a
type that has long been held to be reasonable.  For this reason, the Sixth Circuit reversed
the District Court’s decision to pour out W’s case and sent it back for trial
on whether L did anything forbidden under the statute.
            I don’t care for this case.  It seems to me that there is real difference between
intentionally making a call on a cell phone and it’s happening by accident.  There is also a strong social custom that if
you receive a call and hear noise in the background, you infer it is an
accidental call and hang up. This is such a well established custom that most
of us count on it and assume it will happen.
            Now we arrive at the point of the
story. What if this happed at a lawyer client meeting? The lawyer “makes” a
pocket call, and it accidentally ends up going to the Washington Post, or some relevant type of entity. Is the lawyer
subject to disciplinary action for disclosing the client’s information? Does client
have a right of privacy, as W did in the story?
Does Client have a malpractice action against Lawyer? What about Lawyer’s duty to protect confidential information? All of these
problems and more are waiting in the wings, or are hidden in the lawyer jungle in the cyber world. 


   Michael Sean Quinn, Ph.D., J.D.
The Law Firm[s] of Michael Sean Quinn et
Quinn and Quinn
                                 1300 West Lynn Street, Suite 208
                                             Austin, Texas 78703
                                                 (512) 296-2594
                                            (512) 344-9466 – Fax
                                E-mail:  mquinn@msquinnlaw.com