Expectations of Privacy in Inadvertent or Misdirected Communications

There’s an old saying that bad facts make bad law. Many times, this saying is not a reaction to a specific decision as applied to the particular and often exceptional facts that led to a law. Instead, it’s offered as a prediction that the decision may have unintended consequences for future cases involving facts that are far more commonplace.

This might be said of a recent federal court decision that raises questions about whether senders of inadvertent or misdirected communications may lose their privacy expectations upon hitting “send.”

In Huff v. Spaw, a federal district court in Kentucky rejected the Wiretap Act (Title III of the Omnibus Crime Control and Safe Streets Act of 1968) claims of an organization’s board member whose inadvertent communication—a “pocket-dialed” cellphone call—allowed the person on the other end of the line to listen to and record their in-person conversations with others. The conversations occurred over a 91-minute span, which obviously gave the eavesdropper ample time to simply hang up upon discovering that the call was a mistake.

However, the court determined that the call’s recipient, an executive assistant with the organization in which the board member oversees operations, did not violate federal law when she chose to keep listening despite having realized early on that the call was inadvertent. That’s because, according to the court, in pocket-dialed calls—e.g., one in which a call is placed from a mobile phone by accidentally pressing send while carrying the phone in a pocket—society simply does not recognize an expectation of privacy.

The court derived society’s views from contemporary resources such as the popular Urban Dictionary and Wikipedia websites. The court determined that society recognizes pocket dialing as a known risk of carrying a cellphone, such that pocket dialers should have no objective expectation that inadvertent calls will not be overheard or even recorded. Without both a subjective and objective expectation of privacy, the board member’s call was not entitled to protection under the Wiretap Act. Thus, according to the court, “[w]hile it may be polite for the recipient to hang up once she discovers she has actually received a pocket dial, it is not reasonable to expect everyone to do so.”

This decision begs several questions. Will courts decline to recognize an expectation of privacy in inadvertent or misdirected communications of other kinds, such as email and text messages? Will courts hold that inadvertent or misdirected emails and texts are known risks of carrying smartphones, which often rely on that blessing and curse of a feature known as autocorrect? And, from a claims perspective, how will judges and jurors react when these issues are presented as defenses to statutory and common law invasion of privacy claims that may arise out of incidents involving such communications?

Well, it all depends. At the dispositive motion phase in civil litigation, federal courts have had difficulty interpreting statutes like the Wiretap Act and the Stored Communications Act. In many ways, these statutes were developed to address law enforcement’s access to communications in transmission (Wiretap Act) and to communications in electronic storage (Stored Communications Act). But they also permit private civil causes of action for violations arising out of “unauthorized” access to communications. And there has been a good deal of divergence among federal district courts as they attempt to apply this and other key concepts from these statutes to civil disputes, particularly as developing technologies present issues of first impression and quickly outpace that which existed when these statutes were enacted many years ago. Thus, the answer to the questions above very well may depend on the particular district court—or even the particular division within a district court—in which a claim is brought.

As to jurors, they are unlikely to find themselves in a civil trial in federal court involving something like this, but these same issues can be presented through state law claims. Common law invasion of privacy claims, for example, often present factual issues that are seemingly incapable of resolution short of a trial. Additionally, states generally have statutes that mirror their federal counterparts, including the Wiretap Act and Stored Communications Act. In Huff, for example, the court’s decision on the plaintiffs’ Wiretap Act claims did not resolve the parties’ dispute. The federal court did not rule on the plaintiffs’ additional state wiretapping and invasion of privacy claims, instead remanding those to state court for further litigation. Therefore, it will be interesting to see how those remaining claims are treated in state court.

Moreover, it is worth considering an issue that is unique to electronic messages: How will courts and/or jurors treat the confidentiality and privacy notices that often appear at the end of most professionals’ email messages? Do those notices have any teeth at all? Such a notice typically states that the message is protected by some specific law or laws (e.g., the Electronic Communications Privacy Act), may contain confidential or legally privileged information, and is meant for the sole use of the intended recipient. The notice usually also asks unintended recipients to delete the message and prohibits its use.

But these purported protections and prohibitions and the limitation of recipients are only as good as those interpreting and applying the law. With that law unpredictable at the federal level and likely no more certain at the state level, perhaps the only way to truly protect electronic communications is to be extra cautious in preventing inadvertent or misdirected messages.