A butt dial is not a private call, judge says

If you leave your curtains open, you can’t expect privacy in your home. A similar principle applies to calls from your smart phone, a federal judge told a couple whose conversation was overheard during an accidental call – a “butt dial,” in smartphone vernacular, from the husband’s phone.

The unintended phone connection went on for 91 minutes before it was discovered. It had some apparently large consequences, as the man was engaged in a sensitive face-to-face talk with a colleague when the accidental call was placed.

The recipient of the call, an employee, offered a few hello’s, and then she picked up on the contents of the conversation, in which the men were discussing how to handle a personnel matter. She believed she heard intent to discriminate, and took notes, even summoning a co-worker to bear witness by recording the call on yet a third phone.

The accidental caller and his colleague were traveling on business. The caller headed back to his hotel room as the phone connection continued. There, he recapped his previous conversation for his wife, with the employee still listening on the other end until the owner of the phone noticed the call and cut it off.

The couple sued the recipient of the call for invading their privacy. Sixth Circuit Judge Danny Boggs found no breach of the husband’s privacy, citing various methods a smartphone user can employ to prevent inadvertent dialing. Notably, Judge Boggs did find that the wife had a reasonable expectation of privacy, since she was not aware of the ongoing call and did not dial the call. That question was remanded to the lower court for reconsideration.

It’s likely that the evidence in this case was pretty straightforward. But smartphone evidence can be complicated. Remember that a phone call is about connected devices, and it produces multiple sets of data. In this case, there were three devices involved, since the call involved two phones, and the contents of the call were recorded using another smartphone. Conference calls might involve many more devices.

Always consider that a phone call is no longer a just phone call. If one or more parties is using Skype or other non-traditional technology, forensic examinations may produce phone call evidence from laptops or desktop computers.

Also consider the possibility that data from additional devices may corroborate the first one – or not.

Finally, it’s critical for practicing a attorney to password protect your smartphone. It reduces the likelihood that inadvertent dialing will occur. And it helps safegaurd confidential client data that lives on your phone.

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