Mistaken Cell Phone Dial Ends Up In Lawsuit


UPDATED: Tuesday December 10, 2013 9:08 AM

Smart-phones have transformed the way we communicate, giving us the world at our fingertips. But they can also expose us in embarrassing new ways.

A Cincinnati Airport Board official is suing his secretary for sharing information from a phone call his smart-phone made without his knowledge, also known as a "pocket-dial."
   
It's been the subject of commercials and many an embarrassing misdial:  when your touch-screen phone decides to reach out and touch someone without your knowledge, giving the recipient of the accidental call and all-ears access to whatever you’re saying or doing.

"I've ‘butt-dialed’ my boyfriend, I've ‘butt-dialed’ my dad,” admits OSU student Tehja Rush, using the popular slang. “The most awkward people you could ‘butt-dial’ are the ones I end up ‘butt-dialing’.  Of course my dad's like ‘What are you doing? You're supposed to be studying right now. Why do I hear those people in the background?’"

OSU student Kelly Straniero has both made and received the unintended calls.

"It's always someone in the car singing to themselves, or my mom did it once. I just heard her talking to my little brother. It's never been really personal information, but it's usually pretty comical."
         
A Greater Cincinnati Airport official wasn't at all amused when he "pocket-dialed" his assistant during a particularly sensitive conversation. He says unbeknownst to him, she continued to listen as he discussed getting rid of another board member.

He says she recorded the call and shared that information, and now he's suing her for invasion of privacy.

"This is actually a new question that the courts haven't looked at yet," says OSU Moritz School of Law Professor Ric Simmons.

He says this is a first of its kind case, and a sign of the technological times.

"The question is what right to privacy do you have in an accidental phone call you make to somebody else?"

He says the law pertaining to privacy in communication is the 1968 Wiretapping Law, intended to keep third parties, like the government, from listening to your calls.

"That law is based on consent. The idea is if you call someone, you're consenting to the fact, implicitly, that they might record the call. Of course that's based on the assumption that you called them intentionally, and now we have a question where the call was not intentional."

With technology outpacing the law, Simmons says emerging issues like this could forge new legal ground.

But what we hope people would do, and what the law requires they do, aren't necessarily the same thing.

"The person who received the call can just say 'I was just sitting here and the call came in. I didn't do anything wrong here,'” says Simmons. “So I think it would be hard to argue that the person receiving the call did something wrong here, and therefore should be sued and pay damages for it."

So when it comes to your smart phone, Simmons says, handle with care.

"The person that is receiving it can do whatever they want with the information. That is currently law…so be careful.”

Simmons says while he doesn't see a strong legal case here, if the court does allow it, the case could set precedent, or be the basis for new legislation.

And as technology evolves, he predicts more of these new legal issues will crop up.

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