If you accidentally “pocket dial” someone on your mobile phone, do you have a reasonable expectation of privacy about what’s said in that call? Here’s how courts looked at this issue recently.

What Happened? James Huff is the former chairman of the board of the Cincinnati/Northern Kentucky International Airport. While traveling abroad on business, he tried to call Carol Spaw, who worked at the airport as assistant to the board’s then-CEO Candace McGraw. Spaw also helped to make travel arrangements for board members, and Huff tried to call Spaw for help with dinner reservations. The call did not connect, so Huff put his phone in his suit’s breast pocket.

Huff began a conversation with the airport vice chairman Larry Savage about personnel matters, including the possibility of replacing the CEO, Candace McGraw. McGraw was Spaw’s boss. While this conversation went on, Huff’s phone pocket-dialed Spaw again and the call connected. Spaw answered, said hello several times, and could hear the conversation between Huff and Savage. The call lasted 91 minutes, during which Spaw listened continuously and took notes. She enlisted a fellow employee to record part of the call on another phone. Spaw also listened in on a later conversation that Huff had with his wife. When Huff finally noticed the call was live, he hung up.

After the call ended, Spaw typed up her notes, had the recording enhanced to improve its audio quality, and shared both with the board. Huff and his wife sued Spaw, alleging that she violated a federal wiretap act that makes the intentional interception of electronic or oral communications illegal. The district court ruled in favor of Spaw, the listener.

Did Caller Exhibit an Expectation of Privacy? The federal appeals court held that a person engages in protected oral communication only if he exhibits an expectation of privacy. That expectation has to be both subjectively and objectively reasonable. The court emphasized that more is required than simply intending your statements to be private.

The court found James Huff had no expectation of privacy because he was neglectful in his use of the phone. He did not use any common measures to prevent pocket-dialing. His failure to take steps to prevent exposure of his calls to third parties meant that he failed to exhibit an expectation of privacy.

The court found that his wife Bertha Huff, whose conversation was also overheard, did exhibit an expectation of privacy. Her conversation with her husband took place in their hotel room (treated the same as a home for privacy purposes), and speaking to anyone who is a carrying a mobile phone (nearly everyone today) does not constitute a waiver of the expectation of privacy. The appeals court sent her claim back to the trial court for further review.

What Can You Do? There are several options to reduce the potential of pocket-dial or accidental calls. One is to have a lock feature on the phone, requiring a password or biometric thumbprint at the main screen. You could also use a call confirmation app like Call Confirm. More drastic measures would be to shut off the phone temporarily or put it into airplane mode. Or you could use the extreme options of either checking it constantly, or simply not carrying the phone with you.