The same applies to pocket-dialed calls, according to the court. If a person doesn't take reasonable steps to keep their call private, their communications are not protected by the Wiretap Act.
The court also cited a case in which police discovered a defendant's child pornography using Limewire, the peer-to-peer file sharing service. The defendant there claimed the evidence had been gathered in a warrantless search, but a different appeals court said the defendant had failed to demonstrate an expectation of privacy, because he "opened up his download folder to the world."
"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 to the Wiretap Act as well, the appeals court said.
However, it noted, the same may not apply to Huff's wife, Bertha, who couldn't be expected to know that a person she was talking to had a smartphone in their pocket and hadn't taken steps to secure it.
"If Bertha waived her reasonable expectation of privacy from pocket-dials 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 court said.
"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."
That doesn't necessarily mean Spaw is liable, however, because liability applies under the Wiretap Law only when a person "intentionally" uses a "device" to intercept oral communications.
The appeals court sent the case back to the lower court to decide if Spaw's actions -- including transcribing notes from the call and recording part of it -- constituted an "intentional use of a device" to intercept Bertha Huff's communications.
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