Bertha Mae Huff v. Carol Shaw

This case requires us to consider whether a person who listens to

and subsequently electronically records a conversation from an inadvertent “pocket-dial” call1

violates Title III of the Omnibus Crime Control and Safe Street Act of 1968, 18 U.S.C. § 2510 et

seq. (Title III). James Huff inadvertently placed a pocket-dial call to Carol Spaw while he was

on a business trip in Italy. Spaw stayed on the line for 91 minutes and listened to face-to-face

conversations that James Huff had with Larry Savage, James’s colleague, and with Bertha Huff,

James’s wife. Spaw transcribed what she heard and used an iPhone to record a portion of the

conversation between James and Bertha Huff (the Huffs). The Huffs brought suit against Spaw

for intentionally intercepting their private conversations, in violation of Title III. The district

court granted summary judgment for Spaw on the ground that, because James Huff placed the

pocket-dial call, the Huffs lacked a reasonable expectation that their conversations would not be

intercepted, which is a prerequisite for protection under Title III. This appeal followed. We

affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

James Huff was Chairman of the Kenton County, Kentucky, Airport Board (Airport

Board), which oversees the Cincinnati/Northern Kentucky International Airport (CVG). In

October 2013, he traveled to Bologna, Italy with his wife, Bertha Huff, and with Airport Board

Vice Chairman Larry Savage to attend a business conference. Carol Spaw worked at CVG as

Senior Executive Assistant to the airport’s CEO, Candace McGraw, and as liaison to the Airport

Board. Her work responsibilities included making travel arrangements for board members.

After a conference meeting on October 24, James Huff and Savage went on an outdoor

balcony in their hotel to speak about CVG personnel matters, including the possibility of

1The 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.” Fed. Commc’n Comm’n, Accidental 911 Calls

from Wireless Phones Pose Risk to Public Safety, available at http://www.fcc.gov/guides/accidental-911-callswireless-

phones (last visited June 30, 2015).

No. 14-5123 Huff, et al. v. Spaw Page 3

replacing Candace McGraw as CEO. While on the balcony, James Huff tried to call Spaw’s

personal cellphone using his iPhone to ask her to make dinner reservations for him and Savage.

The call did not connect because James misdialed Spaw’s number. After this unsuccessful

attempt, James placed the iPhone in his suit’s breast pocket. Savage then successfully called

Spaw’s office phone using his personal cellphone and had her make reservations. After this

phone call, Savage and Spaw hung up their respective phones.

Soon thereafter, while James Huff spoke with Savage about CVG personnel matters, the

iPhone in James’s suit pocket placed a pocket-dial call to Spaw’s office phone. Spaw answered

and could hear James Huff and Savage talking, but she could not understand what they were

saying. She said “hello” several times but got no response. Spaw asked her colleague, Nancy

Hill, to help decipher what James Huff and Savage were saying. Spaw then put the phone on

speaker mode to enhance the volume and said “hello” several more times. Within ninety

seconds, Spaw and Hill determined that Huff and Savage were discussing McGraw’s

employment situation and that the call was not intended for them. Spaw began to take

handwritten notes of the conversation and instructed Hill to do the same. Spaw claims that she

believed that she heard James Huff and Savage engaged in a discussion to discriminate

unlawfully against McGraw and felt that it was her responsibility to record the conversation and

report it through appropriate channels. The pocket-dial call lasted approximately 91 minutes,2

during which Spaw listened continuously.

James Huff and Savage spoke on the hotel balcony about CVG personnel matters for

approximately the first 40 minutes of the pocket-dial call. The two board members then left the

balcony to attend a meeting in a conference room. Spaw stayed on the line and asked Hill to

obtain an iPhone from the CVG IT Department with which she could record the call. The

meeting in the conference room ended approximately 70 minutes into the call. James Huff and

Savage left the meeting room and walked back to their respective hotel rooms. Along the way,

Spaw heard them talking about innocuous subjects such as their children’s activities, taking a

nap, and evening plans. Approximately 75 minutes into the call, James Huff returned to his hotel

2According to James Huff’s cell phone records, his phone placed a 91-minute call to Spaw’s office phone

at 3:35 PM in Italy (9:35 AM EST) on October 24, 2013 . However, Carol Spaw testified that the call ended at

11:04, which would indicate a total duration of 89 minutes (9:35 AM to 11:04 AM). On appeal, both parties agree

that the call lasted 91 minutes. Appellants’ Br. at 7; Appellee’s Br. at 10.

No. 14-5123 Huff, et al. v. Spaw Page 4

room where his wife, Bertha Huff, awaited him. In addition to speaking about personal family

matters, James and Bertha Huff discussed the contents of James’s earlier conversation with

Savage. Spaw used an iPhone obtained from the CVG IT Department to record the final four

minutes and 21 seconds of the conversation between the Huffs.

At one point, James Huff noticed that his personal iPhone had an open call with Spaw’s

office phone. He mistakenly believed that it had been open for only one minute and twenty-nine

seconds, when in reality it had been one hour and twenty-nine minutes. He testified that he

immediately terminated the call, but cellphone records indicate that the call lasted one hour and

thirty-one minutes. This suggests that he may have left the pocket-dial call open for an

additional two minutes after realizing what had occurred.

After the call ended, Spaw converted handwritten notes that she and Hill made into a

typewritten summary. She also transferred the iPhone recording to a thumb drive, which she

gave to a third-party company to enhance the audio quality. She eventually shared the

typewritten summary and the enhanced audio recording with other members of the Airport

Board.

On December 3, 2013, Bertha and James Huff filed a Verified Complaint alleging that,

inter alia, Spaw violated Title III by intentionally intercepting their oral communications, in

violation of 18 U.S.C. § 2511(1)(a); disclosing the contents of intercepted oral communications,

in violation of 18 U.S.C. § 2511(1)(c); and using the contents of intercepted oral

communications, in violation of 18 U.S.C. § 2511(1)(d). The district court granted summary

judgment to Spaw on January 24, 2014, holding that Title III does not protect the Huffs’

conversations because any expectation that their conversations would not be intercepted was not

reasonable under the circumstances. Huff v. Spaw, 995 F. Supp. 2d 724, 733–34 (E.D. Ky.

2014).3 The Huffs now appeal.

3The district court also ruled that the Huffs’ conversation did not qualify for protection under Title III as a

wire communication and the Huffs do not dispute this holding. Huff, 995 F. Supp. 2d at 734.

No. 14-5123 Huff, et al. v. Spaw Page 5

II. JURISDICTION

Because the communications that were intercepted took place outside of the United

States, we first consider whether it was proper for the district court to exercise jurisdiction under

28 U.S.C. § 1331. There is a “legal presumption that Congress ordinarily intends its statutes to

have domestic, not extraterritorial, application” unless the “statutory language, context, history,

or purpose show the contrary.” Small v. United States, 544 U.S. 385, 388–89, 391 (2005). There

are no such contrary indications with respect to Title III. Courts have repeatedly applied the

general “legal presumption” against extraterritorial application to Title III. See United States v.

Peterson, 812 F.2d 486, 492 (9th Cir. 1987) (“Title III has no extraterritorial force.”); see also

United States v. Toscanino, 500 F.2d 267, 279–80 (2d Cir. 1974).

When determining whether an alleged interception is extraterritorial, and therefore

beyond the jurisdiction of federal courts as a question arising under Title III, we do not consider

whether the plaintiffs are citizens of the United States, Stowe v. Devoy, 588 F.2d 336, 341 n.11

(2d Cir. 1978), or whether the communications traveled through United States

telecommunication infrastructure, United States v. Cotroni, 527 F.2d 708, 711 (2d Cir. 1975).

Instead, we look to “where the interception took place.” Ibid.; see also Stowe, 588 F. 2d at 341

n.12. Title III defines interception as “the aural or other acquisition of the contents of any wire,

electronic, or oral communication through the use of any electronic, mechanical, or other

device.” 18 U.S.C. § 2510(4). The relevant location is not where the Huffs’ conversations took

place, but where Spaw used a device to acquire the contents of those conversations. Because

Spaw used her office phone and an iPhone in Covington, Kentucky, there is no extraterritoriality

that would bar the application of Title III. Accordingly, the district court properly exercised

jurisdiction pursuant to 28 U.S.C. § 1331.

III. STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo. Frazier v. Honda of

Am. Mfg., Inc., 431 F.3d 563, 565 (6th Cir. 2005). Summary judgment is appropriate where “the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The question is “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

No. 14-5123 Huff, et al. v. Spaw Page 6

that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, 477 U.S. 242, 251–

52 (1986). When ruling on a summary-judgment motion, a court must draw all reasonable

inferences from the evidence in favor of the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

IV. DISCUSSION

A

Title III makes it unlawful to “intentionally intercept[] . . . any wire, oral, or electronic

communication.” 18 U.S.C. § 2511(1)(a). The act defines “intercept” to mean “the aural or

other acquisition of the contents of any wire, electronic, or oral communication through the use

of any electronic, mechanical, or other device.” Id. § 2510(4). Title III further prohibits

intentional disclosure or use of “the contents of any wire, oral, or electronic communication,

knowing or having reason to know that the information was obtained through the interception of

wire, oral, or electronic communication in violation of [Title III].” Id. § 2511(1)(c), (d). In

addition to criminal penalties, Title III provides injured parties with a private right of action

against violators. Id. § 2520(a). The Huffs relied upon this authorization of a private right of

action to bring their federal claims.

B

As a threshold question, we consider whether the Huffs’ conversations were protected

under Title III, which covers only wire, oral, or electronic communication as those terms are

defined by the statute. In re Askin, 47 F.3d 100, 102–03 (4th Cir. 1995). Title III defines an oral

communication for its purposes as “any oral communication uttered by a person exhibiting an

expectation that such communication is not subject to interception under circumstances

justifying such expectation.” 18 U.S.C. § 2510(2). The language makes clear that Congress did

not enact Title III to protect every face-to-face conversation from interception. We have held

that a person engages in protected oral communication only if he exhibited “an expectation of

privacy that is both subjectively and objectively reasonable.” Dorris v. Absher, 179 F.3d 420,

425 (6th Cir. 1999). This assessment parallels the reasonable-expectation-of-privacy test

articulated by Justice Harlan in Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,

No. 14-5123 Huff, et al. v. Spaw Page 7

concurring). Other courts have also applied Katz’s reasonable-expectation test to assess whether

a communication is protected under Title III. See Kee v. City of Rowlett, 247 F.3d 206, 211–12

(5th Cir. 2001); United States v. Turner, 209 F.3d 1198, 1200 (10th Cir. 2000); United States v.

McKinnon, 985 F.2d 525, 527 (11th. Cir. 1993); United States v. McIntyre, 582 F.2d 1221, 1223

(9th Cir. 1978). The statutory history of Title III also supports such an application. S. Rep. No.

1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N 2112, 2178. In articulating

his well-known test, Justice Harlan wrote that, in order to demonstrate a reasonable expectation

of privacy,

[t]here is a two-fold requirement, first that a person have exhibited an actual

(subjective) expectation of privacy and, second, that the expectation [must] be one

that society is prepared to recognize as “reasonable.” Thus a man’s home is, for

most purposes, a place where he expects privacy, but objects, activities, or

statements that he exposes to the “plain view” of outsiders are not “protected”

because no intention to keep them to himself has been exhibited. On the other

hand, conversations in the open would not be protected against being overheard,

for the expectation of privacy under the circumstances would be unreasonable.

Katz, 389 U.S. at 361 (Harlan, J., concurring).

Courts generally refer to Katz’s reasonable-expectation test as having a subjective part

and an objective part, but the division of labor between these two parts is ill-defined in the Title

III context.4 Some courts, including ours, limit the subjective part to the issue of whether a

person held an internal belief in an expectation of privacy from interception. See Dorris,

179 F.3d at 425 (“In the present case, the frank nature of the employees’ conversations makes it

obvious that they had a subjective expectation of privacy. After all, no reasonable employee

4The precise contours of the subjective and objective parts of the Katz test are somewhat ambiguous in the

Fourth Amendment context as well. The question of whether a person exhibited an expectation of privacy without

outward conduct (rather than mere belief), or failed to do so because he exposed his activities to outsiders, Katz,

389 U.S. at 361 (Harlan, J., concurring), sometimes falls within the subjective part of the test. See, e.g., Bond v.

United States, 529 U.S. 334, 338 (2000) (holding that defendant satisfied the subjective-expectation requirement

because he, “by his conduct, has exhibited an actual expectation of privacy”) (emphasis added). Other times, this

question falls under the objective part of the reasonable-expectation test. See, e.g., California v. Greenwood,

486 U.S. 35, 39–40 (1988) (holding that defendants lacked an objectively reasonable expectation of privacy because

they “exposed their garbage to the public”). On occasion, the issue is analyzed under both the subjective

and objective parts. See, e.g., United States v. Barrows, 481 F.3d 1246, 1248–49 (10th Cir. 2007) (noting that

defendant’s “failure to password protect his computer” made the court hesitant “to conclude that [he] harbored a

subjective expectation of privacy” and holding that defendant’s failure to “take affirmative measures to limit other

employee’s access” to his computer rendered his expectation of privacy, to the extent that it existed, objectively

unreasonable).

No. 14-5123 Huff, et al. v. Spaw Page 8

would harshly criticize the boss if the employee thought that the boss was listening.”) (emphases

added); see also McIntyre, 582 F.2d at 1223 (“There is no question that McGann had a

subjective expectation of privacy . . . [because] he believed that normal conversations in his

office could not be overheard, even when the doors to his office were open.”) (emphases added).

Other courts, including the Tenth Circuit in Kee, ask whether plaintiffs “‘exhibited a subjective

expectation of privacy that [their communications] would remain free from governmental [or

private] intrusion’ and whether they ‘took normal precautions to maintain privacy[.]’” 247 F.3d

at 213 (first alteration in original) (emphasis added).

Like Kee, we also ask whether a person exhibited an expectation of privacy, e.g., by

taking precaution, but we do so under the objective part of the reasonable-expectation test. The

Dorris court, for example, held that the plaintiffs’ expectation of privacy was objectively

reasonable because they “took great care to ensure that their conversations remained private.”

179 F.3d at 425. The question of whether that expectation was reasonable under the

circumstances also falls under the objective part of the test. The Dorris court concluded that,

because “the entire office in the present case consisted of a single room that could not be

accessed without the employees’ knowledge[,] . . . the employees had a reasonable expectation

of privacy in their workplace.” Ibid. This approach effectively bifurcates the objective part of

the reasonable-expectation test into two subparts. First, did the employees exhibit a (subjective)

expectation of privacy by taking precautions? Second, was that expectation objectively

reasonable?

The question of whether a person had an internal belief in an expectation of privacy—the

only aspect of the subjective part under Dorris—is irrelevant because it is subsumed by the

exhibited-an-expectation inquiry. If a person lacked an internal belief in privacy, then he would

not have exhibited an expectation of privacy and so would fail the reasonable-expectation test. If

the person held an internal belief but did not exhibit that belief in an outward manner, he would

also fail the reasonable-expectation test due to his inability to satisfy the first objective subpart.

Therefore the only relevant inquiries are the two objective subparts: (1) whether a person

exhibited an expectation of privacy and (2) whether that expectation was reasonable. These were

the same two relevant inquiries for the Kee court, except that court categorized the first inquiry

No. 14-5123 Huff, et al. v. Spaw Page 9

under the subjective part of the reasonable-expectation test. These two inquires track Title III’s

statutory text that first, a person “exhibit[ed] an expectation that such communication is not

subject to interception” and second, “under circumstance justifying such expectation.” 18 U.S.C.

§ 2510(2). We therefore bifurcate Katz’s reasonable-expectation test—at least in the Title III

context—into these two inquiries.

The first part of the test requires more than an internal belief in privacy. Rather, one

must exhibit an intention to keep statements private. A person fails to exhibit an expectation of

privacy under the Katz test if he exposes those statements to the “plain view” of outsiders,

389 U.S. at 361 (Harlan, J., concurring), or if he fails to take to steps to prevent exposure to third

parties, Kee, 247 F.3d at 216–17 (holding that plaintiffs did not engage in oral communication

under Title III because “they failed to present evidence demonstrating any affirmative steps

taken to preserve their privacy,” and “point to no reasonable safeguards or common-sense

precautions taken to preserve their expectation of privacy”). The second part of the Katz test is

satisfied if the expectation of privacy exhibited by the person is reasonable under the

circumstances. Katz, 389 U.S. at 361 (Harlan, J., concurring). The operative question is whether

society is prepared to recognize an exhibited expectation as legitimate. Ibid. It is essential to

consider the two-part Katz test with respect to James Huff and Bertha Huff separately.

i. James Huff’s Reasonable Expectation of Privacy from Interception

The district court found that James Huff “unquestionably did not expect that [his] face-toface

conversations would be intercepted” for two reasons. Huff, 995 F. Supp. 2d at 731. First,

he would not have discussed sensitive, Airport-related matters with Savage and with Bertha Huff

if he had known that others might be listening. Ibid. This establishes only that James Huff likely

intended his statements to be private, not that he exhibited an expectation of privacy. Second,

“[a] significant portion of the intercepted communications took place in two places: a private

balcony and a hotel bedroom.” Ibid. While a person generally exhibits an expectation of privacy

when he seeks out a private location to speak, if he also exposes his statements to an outsider “no

intention to keep them to himself has been exhbited.” Katz, 389 U.S. at 361 (Harlan J.,

concurring). Because James Huff placed the pocket-dial call to Spaw, he exposed his statements

to her and therefore failed to exhibit an expectation of privacy with respect to those statements.

No. 14-5123 Huff, et al. v. Spaw Page 10

Exposure need not be deliberate and instead can be the inadvertent product of neglect.

Under the plain-view doctrine, if a homeowner neglects to cover a window with drapes, he

would lose his reasonable expectation of privacy with respect to a viewer looking into the

window from outside of his property. People v. Wright, 242 N.E. 2d 180, 184 (Ill. 1968); see

also California v. Ciraolo, 476 U.S. 207, 214–15 (1980) (holding that policemen who observed

the inside of a defendant’s fenced-in property from a location that was open to the public did not

violate the defendant’s reasonable expectation of privacy). The doctrine applies to auditory as

well as visual information. United States v. Fisch, 474 F.2d 1071, 1077 (9th Cir.), cert. denied,

412 U.S. 921 (1973) (holding that defendants did not exhibit an expectation of privacy to

statements that were “audible to the naked ear” of police in an adjoining hotel room).

The Supreme Court limited the plain-view doctrine in Kyllo v. United States, holding that

a drug grower did not “expose” heat emanating from his home by failing to take steps to prevent

police from using thermal-imaging technology that was not in general public use to observe his

in-home activities. 533 U.S. 27, 40 (2001). However, Kyllo would not apply where a person

inadvertently broadcasts an activity to outsiders through commonly available

telecommunications technology that he controls—for instance, if a drug grower advertises his

illegal in-home activities to police by inadvertently leaving on his webcam.5 Similarly, a person

exposes his activities and statements, thereby failing to exhibit an expectation of privacy, if he

inadvertently shares his activities and statements through neglectful use of a common

telecommunication device.

In United States v. Ganoe, a law-enforcement agent discovered the defendant’s childpornography

files via LimeWire, a peer-to-peer file-sharing program that the defendant had

installed on his computer. 538 F.3d 1117 (9th Cir. 2008). The defendant moved to suppress the

child-pornography evidence as being the fruit of a warrantless search, in violation of the Fourth

Amendment. The Ninth Circuit disagreed, holding that the defendant “failed to demonstrate an

expectation of privacy that society is prepared to accept as reasonable” because “he opened up

his download folder to the world.” Id. at 1127 (emphasis added). Importantly, LimeWire

5Nor would a person have a private right of action under Title III against third parties if he inadvertently

used a webcam to broadcast his in-home activities to those third parties. See, e.g., AMERICAN PIE (Universal

Pictures 1999).

No. 14-5123 Huff, et al. v. Spaw Page 11

allowed a user to turn off the file-sharing function, but the defendant neglected to do so. The

Ninth Circuit concluded that “[t]o argue that Ganoe lacked the technical savvy or good sense to

configure LimeWire to prevent access to his pornographic files is like saying that he did not

know enough to close his drapes.” Id. at 1127.

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 in the Title III context as well. In McKamey v. Roach, the

plaintiffs brought a private Title III action against the defendant for intercepting their phone

conversations where one plaintiff used a cordless phone. 55 F.3d 1236 (6th Cir. 1995). Because

Title III expressly excluded “the radio portion of a cordless telephone communication” from the

definition of wire communication at the time,6 18 U.S.C. § 2510(1) (1988), the plaintiffs sought

to characterize their conversations as oral communications. Id. at 1239. We rejected this

characterization, reasoning that the plaintiffs could not enjoy a reasonable expectation of privacy

in their cordless-phone conversations because “cordless telephone communications are broadcast

over the radio waves to all who wish to overhear,” and the plaintiffs knew or should have known

of this risk because the owner’s manual provided an explicit warning. Id. at 1239–40.

At his deposition, James Huff admitted that he was aware of the risk of making

inadvertent pocket-dial calls and had previously made such calls on his cellphone. A number of

simple and well-known measures can prevent pocket-dials from occurring. These include

locking the phone, setting up a passcode, and using one of many downloadable applications that

prevent pocket-dials calls, see, e.g., Will Verduzco, “Prevent Unwanted Butt Dialing with Smart

Pocket Guard,” xdadevelopers, Apr. 15, 2014, available at http://www.xdadevelopers.

com/android/prevent-unwanted-butt-dialing-with-smart-pocket-guard/ (reviewing a

smartphone application designed to prevent pocket-dial calls from occurring) (last visited July 8,

2015). James Huff did not employ any of these measures. He is no different from the person

who exposes in-home activities by leaving drapes open or a webcam on and therefore has not

exhibited an expectation of privacy. See Ganoe, 538 F.3d at 1127. Having determined that

6In 1994, Congress amended Title III to remove the cordless-phone exemption, and thus made interception

of cordless-phone conversations actionable as an interception of wire communication. COMMUNICATIONS

ASSISTANCE FOR LAW ENFORCEMENT ACT, Pub. L. No. 103-414, § 202(a), 108 Stat. 4279 (1994).

No. 14-5123 Huff, et al. v. Spaw Page 12

James Huff failed to exhibit an expectation of privacy, we need not determine whether

circumstances justified such an expectation to conclude that his statements do not qualify as oral

communications and therefore cannot give rise to liability under Title III.

The Huffs warn that, if we do not recognize James Huff’s reasonable expectation of

privacy in this case, we would deprive all cellphone-carrying Americans of their reasonable

expectations of privacy in their conversations. Appellant’s Brief at 22. We disagree. Not

recognizing James Huff’s expectation would do no more injury to cellphone users’ privacy

interests than the injury that the plain-view doctrine inflicts upon homeowners with windows or

webcams. A homeowner with an uncovered window or a broadcasting webcam lacks a

reasonable expectation of privacy with respect only to viewers looking through the window that

he neglected to cover or receiving signals from the webcam he left on. He would retain a

reasonable expectation of privacy in his home with respect to other means of observation, for

example thermal-imagery devices. Kyllo, 533 U.S. at 40. Similarly, James Huff retained an

expectation of privacy from interception by non-pocket-dial means, such as by a hidden

recording device or by someone covertly causing his cellphone to transmit his statements to an

eavesdropper.7 See McCann v. Iroquois Mem’l Hosp., 622 F.3d 745, 753 (7th Cir. 2010)

(holding that a defendant who secretly turns on a plaintiff’s dictaphone to record and acquire the

plaintiff’s conversation would be liable under Title III). James Huff lacked a reasonable

expectation of privacy in his statements only to the extent that a third-party gained access to

those statements through a pocket-dial call that he placed. In sum, a person who knowingly

operates a device that is capable of inadvertently exposing his conversations to third-party

listeners and fails to take simple precautions to prevent such exposure does not have a reasonable

expectation of privacy with respect to statements that are exposed to an outsider by the

inadvertent operation of that device.

ii. Bertha Huff’s Reasonable Expectation of Privacy from Interception

Bertha Huff knew that her husband owned a cellphone and that cellphones were capable

of inadvertently transmitting conversations to third-party listeners via pocket-dial calls. The

7See Declan McCullagh and Anne Broach, FBI Taps Cell Phone Mic As Eavesdropping Tool, CNET

NEWS, Dec. 1, 2006, available at http://news.cnet.com/FBI-taps-cell-phone-mic-as-eavesdropping-tool/2100-

1029_3-6140191.html (last visited June 30, 2015).

No. 14-5123 Huff, et al. v. Spaw Page 13

district court held that she lacked a reasonable expectation of privacy in her face-to-face

conversation with her husband in their hotel room on the basis of this awareness. Huff, 995 F.

Supp. 2d at 734. We disagree with this conclusion because speaking to a person who may carry

a device capable of intercepting one’s statements does not constitute a waiver of the expectation

of privacy in those statements.

In addition to placing pocket-dial calls, a cellphone can also be used directly and

purposefully to intercept face-to-face conversations, for example, by surreptitiously recording or

transmitting them. See, e.g., IPHONE USER GUIDE 133 (2014) (instructing the owner on the use of

the recording function). If Bertha waived her reasonable expectation of privacy from pocketdials

by speaking to a person who she knew to carry a pocket-dial-capable device, she would

also waive her reasonable expectation of privacy from recordings and transmissions by speaking

with anyone carrying a recording-capable or transmission-capable device, i.e., any modern

cellphone. The district court’s holding would logically result in the loss of a reasonable

expectation of privacy in face-to-face conversations where one party is aware that a participant in

the conversation may have a modern cellphone. As nearly every participant in a conversation is

a potential cellphone carrier,8 such a conclusion would dramatically undermine the protection

that Title III grants to oral communication. It would also mean that, had Spaw and James Huff

conspired for James to deliberately turn on his phone and transmit his conversation with Bertha

Huff for Spaw to hear and share with others, neither James nor Spaw would have violated Title

III because no “oral communication” was intercepted. But the law does not support this

conclusion.

First, we consider whether Bertha Huff exhibited an expectation of privacy in the

statements she made in her hotel room. Having a conversation in one’s home generally exhibits

an expectation of privacy, Katz, 389 U.S. at 361 (Harlan J., concurring), and hotel rooms are

treated as homes for privacy purposes, Minnesota v. Olsen, 495 U.S. 91, 98 (1990). Therefore,

Bertha Huff exhibited an expectation of privacy in statements she made to her husband in the

hotel room, unless she exposed those statements to an outsider as her husband did. For most of

8As of 2014, approximately 90% of U.S. adults own a cellphone, and 58% of U.S. adults own a

smartphone. Pew Research Center Survey, available at http://www.pewinternet.org/data-trend/mobile/cell-phoneand-

smartphone-ownership-demographics/ (last visited on June 30, 2015).

No. 14-5123 Huff, et al. v. Spaw Page 14

the Huffs’ approximately 15-minute conversation in the hotel room, Bertha Huff exposed her

statements only to her husband, who in turn inadvertently caused some of those statements to be

intercepted by Spaw. James Huff discovered that he had made a pocket-dial approximately

89 minutes into a 91-minute call and told his wife that “my phone is on.” To the extent that

Bertha Huff understood this statement to mean that James’s phone was still connected to another

phone, she would have exposed her statements in the apparent final two minutes of the call to

any outsider on the other end of the call and therefore would not have enjoyed a reasonable

expectation of privacy with respect to only those statements. As to statements Bertha Huff made

prior to this two-minute window, her awareness that her husband may have been carrying an

interception-capable device—i.e., an iPhone—did not displace her expectation of privacy.

We held in Boddie v. American Broadcasting Company Inc. that someone who

knowingly converses with a person who may be carrying an interception-capable device can

nonetheless enjoy a reasonable expectation of privacy from interception. 731 F.2d 333, 338–39

(6th Cir. 1984). Boddie agreed to an interview with a TV reporter but refused to give consent to

being recorded. Id. at 335. The reporter nonetheless secretly recorded the conversation, and

Boddie sued under Title III. Ibid. In reversing the district court’s summary judgment for the

defendant, we held that, although “Boddie was aware that she was speaking to a reporter from

ABC,” “it remain[ed] an issue of fact for the jury whether Boddie had an expectation that the

interview was not being recorded and whether that expectation was justified under the

circumstances.” Id. at 338–39. In reaching this conclusion, we noted that there are “some

circumstances where a person does not have an expectation of total privacy, but still would be

protected by [Title III] because he was not aware of the specific nature of another’s invasion of

his privacy.” Id. at 339 n.5 (emphasis added). Similarly, we do not require Bertha Huff to

exhibit an expectation of total privacy—e.g., by searching her husband and forcing him to turn

off his phone—in order to be protected under Title III. Because Bertha Huff made statements in

the privacy of her hotel room, was not responsible for exposing those statements to an outside

audience, and was (until perhaps the final two minutes) unaware of the exposure, she exhibited

an expectation of privacy.

No. 14-5123 Huff, et al. v. Spaw Page 15

Turning to the question of whether circumstances justified her expectation, the Supreme

Court has long held that society is prepared to recognize as legitimate an expectation of privacy

in statements that a person made under circumstances similar to Bertha Huff’s. Katz, 389 U.S. at

359 (finding a Fourth Amendment violation in the attachment of an eavesdropping device to a

public telephone booth). Therefore, Bertha’s Huff’s expectation of privacy from interception

was justified under the circumstances.

Having found that Bertha Huff exhibited an expectation of privacy in her statements that

was reasonable under the circumstances, we reverse the district court’s holding that she did not

engage in oral communications. This does not necessarily mean that Spaw is liable, because

Title III imposes liability only when a person “intentionally” uses a “device” to intercept oral

communications. We leave to the district court to consider on remand whether any of Spaw’s

actions, including (1) answering the phone, (2) turning up the volume, (3) transcribing notes, and

(4) making an electronic recording, constituted an “intentional use of a device” to intercept

Bertha Huff’s oral communications. Additionally, if James Huff had noticed that his phone was

connected to an outside line two minutes before he ended the call, and Bertha Huff understood

this, then Bertha would not be protected by Title III with respect to those final minutes of her

conversation.

C

Spaw relies on Williams v. State, 507 P.2d. 1339 (Okla. Crim. App. 1973), to argue that,

even if some of the conversation that she overheard constituted oral communication, she is not

liable because her conduct does not qualify as “interception” under Title III. Appellee’s Br. at

23–25. In Williams, a motel manager answered a phone call from a motel room and heard a

“very loud disturbance in the room including cussing fighting and calling each other names.” Id.

at 1340 (internal quotation marks omitted). The manager made a tape recording of the

conversation, which was introduced as evidence at the defendant’s trial for the murder of the

room’s occupant. Ibid. The defendant sought to exclude the recording as an unlawful

interception under Title III, and the Williams court held that “the defendant has not shown that

the tape recording in question was the result of an intercept . . . [because] there was no tap on the

line or interference with the normal telephone lines.” Id. at 1341 (internal quotation marks

No. 14-5123 Huff, et al. v. Spaw Page 16

omitted). Spaw argues that she “did not mechanically or physically manipulate the line, so no

interception occurred.” Appellee’s Br. at 25. We find this argument unconvincing for two

reasons.

First, the Williams court relied upon a misreading of Rathbun v. United States, 355 U.S.

107 (1957), by State v. Vizzini, 278 A.2d 235, 237 (N.J. Super. Ct. App. Div. 1971), to conclude

that interference is a prerequisite for interception. In Rathbun, the Supreme Court considered the

meaning of “intercept” under a former provision of the Federal Communications Act of 1934, 47

U.S.C. § 605 (“No person not being authorized by the sender shall intercept any communication

and divulge or publish . . . such intercepted communications to any person.”), and held that no

“interception” had occurred when one of two parties to a telephone conversation permitted a

third party to surreptitiously listen on an extension line. 355 U.S. at 111. The Court reasoned

that “[e]ach party to a telephone conversation takes the risk that the other party may have an

extension telephone and may allow another to hear the conversation.” Ibid. The Vizzini court

interpreted this to mean that, “[s]o long as the physical integrity of the established line is not

violated, there is no interception.” 278 A.2d at 237. Williams adopted this interpretation, 507

P.2d. at 1341–42, and in doing so, conflated a sufficient condition with a necessary one. While

third-party interference with the phone line was one way to intercept communications, the use of

an unaltered phone line without the consent of either party would also qualify as interception.

Laughlin v. United States, 344 F. 2d 187, 191–92 (D.C. Cir. 1965) (holding that a § 605

interception had occurred when a party’s consent to third-party eavesdropping through an

unaltered extension line was obtained through coercion). Therefore, non-interference with a

phone line does not, by itself, prevent an instance of phone-based eavesdropping from qualifying

as an interception if the eavesdropping occurred without the consent of at least one party to that

conversation, as is the case with the Huffs.

Second, the Vizzini court mistakenly treated § 605 interception as being interchangeable

with Title III interception, 278 A.2d at 237, and Williams adopted this treatment, 507 P.2d at

1341. Title III defines interception more broadly than did § 605.9 Even if the Supreme Court

9For example, the two statutes differ as to whether interception is possible where one party consents. In

Rathbun, the Supreme Court held that no § 605 interception occurs where a party consents to eavesdropping,

355 U.S. at 111. However, 18 U.S.C. § 2511(2)(c) makes clear that Title III interception can occur despite party

No. 14-5123 Huff, et al. v. Spaw Page 17

had held that § 605 interception requires interference, we could not rely on that holding to define

the meaning of “interception” under a different statute. We must instead look to Title III’s text,

which undermines Spaw’s position because the statutory definition for interception contains no

reference to an interference requirement. 18 U.S.C. § 2510(4). The statute goes on to state that

it is unlawful to intentionally intercept oral communications under a variety of conditions,

including through the use of a “device [that] transmits communication by radio, or interferes

with the transmission of such communication.” Id. § 2511(1)(b)(ii) (emphasis added). The

disjunctive use of “or” indicates that Title III contemplates using a radio device that does not

interfere with radio transmissions to unlawfully intercept oral communications. Case law also

contradicts Spaw’s interference requirement. In Boddie, we held that covertly recording a faceto-

face conversation could be the basis for unlawful interception under Title III, 731 F.2d at 339,

and the Seventh Circuit reached the same conclusion in McCann, 622 F.3d at 752–53. In neither

case did the defendant “interfere” with a line of communication.

Because Spaw cites non-binding and unpersuasive case law to support a conclusion that

is inconsistent with statutory text and binding case law, we reject her argument that her conduct

did not qualify as interception because she did not interfere with the phone line.



* * *



consent because that section provides that “[i]t shall not be unlawful for a person acting under color of law to

intercept a wire, oral or electronic communication, where . . . one of the parties to the communication has given

prior consent to such interception.” (Emphasis added).

James Huff’s statements do not qualify as oral communications for Title III purposes

because he exposed them to Spaw when he pocket-dialed her, but Bertha Huff’s statements do

qualify because she cannot be held responsible for her husband’s pocket-dial. While Spaw

intercepted Bertha Huff’s oral communications, the question remains as to whether she did so

intentionally through use of a device. Accordingly, we AFFIRM the district court’s judgment as

to James Huff, REVERSE the district court’s judgment as to Bertha Huff, and REMAND for

further consideration consistent with this opinion.