Can a Pocket Dial Call Lead to a Wiretap Prosecution?

One issue we frequently discuss with clients concerns the legality of recording conversations.  Many spouses and parents want to record parts of conversations, believing they will capture a “gotcha” moment for future use in court.  But before doing so, individuals should beware of laws regulating surreptitious taping.

Both Missouri and the federal government have wiretap acts.  In Missouri, we follow the so-called “one party consent” rule, meaning that if you are a party to the conversation, or you get consent from one of the parties to the conversation, you can record the conversation legally, unless you are doing so for the purpose of committing a crime or a tort (civil wrong).  The federal wiretap act has a similar provision, but with additional exceptions.

When two spouses or parents are having a conversation (or argument), one or both parties may record it without the knowledge or consent of the other.  Problems begin when a spouse or parent tries to record (or hires someone to record) video or audio evidence of the other spouse or parent and another party.  In this situation, no one has consented.  These scenarios can lead to wiretap violations that would not only make the evidence inadmissible in a divorce or custody proceeding but also subject the intercepting spouse or parent to criminal prosecution.

What happens if the recording happens by accident?  The U.S. Court of Appeals for the Sixth Circuit recently dealt with just such a situation.  In Huff v. Spaw, an employment discrimination case, the key evidence was obtained through a “pocket dial” call.  Huff had called Spaw, a secretary, earlier attempting to get her to arrange a reservation for dinner.  The call did not go through but was the last call dialed.  Huff went into a meeting and had the phone in his pocket and it apparently pocket dialed Spaw who listened in on and partially recorded a 90 minute conversation that produced damning evidence of a hostile work environment.  Huff sued under the federal wiretap act, as did one of the other parties to his lengthy conversation.  The Sixth Circuit ruled that because Huff made the call and did not take precautions to prevent pocket dialing (like installing an app) he lost his reasonable expectation of privacy in a call he made even though by accident, and as a result could not claim wiretap protection.  The other party, however, never consented and had no reason to know about the pocket dial, so she did retain an expectation of privacy and could pursue a suit.

The lesson from Huff is that a pocket dial could be sword and shield – if you make the pocket dial, you likely impale yourself, but if you are an innocent party to the pocket dialed conversation, you have the ability to sue.

For parents and spouses in family law battles, the pocket dial case serves as a serious reminder that careless recording of damaging information to yourself could be used against you, and that even if you obtain damaging information by accident, it may still subject you to wiretap violations.

If you have any doubts about whether you should record a conversation and how to do so, you should consult with an attorney first.

If you have questions about phone calls and the wiretap acts, contact us – we can help.

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