The issue is:did the Huffs have a reasonable expectation of privacy and did Spaw violate the Wiretap Act?
First:
Review and apply the requirements for areasonable expectation of privacyin section 9-2a and the requirements of the Wiretap Act in section 9-2c.
As the judge, decide for one party or the other(consider each Huff separately). State your reasoning. Go beyond reiterating the arguments given in the text. Also, don't rely on your instinct. Apply the law.
Second:
Consider what would you do ethically if you were Spaw in this situation?
9-2a Constitutional Law: The Fourth Amendment The Fourth Amendment to the Constitution prohibits unreasonable searches and seizures hythe government. As we saw in Chapter 6 on crime, the Fourth Amendment protects the privacy rights of criminal defendants. These same protections also extend to other citizens, such as government workers and public school students. In enforcing this provision of the Constitution, the courts ask whether a person had a reasonable expectation of privacy. The two requirements for establishing a \"reasonable Reasonable expectation expectation of privacy\" are: of privacy The test to analyze whether 1. The person had an actual, subjective expectation of privacy. Most people expect privacy should be protected privacy in restrooms, even those at work. Some people might expect that no one will rummage through their desk drawers in their cubicle; others might think that the personal emails they send on the company computers are private. These exam- ples are subjective expectations of privacy. 2. Society accepts the person's expectation of privacy as reasonable. Everyone agrees that a bathroom stall is private. (Note to employers: Two-way mirrors in an employee bathroom are a bad idea.) However, the privacy of a cubicle or personal emails depends on the circumstances. Did the person know the employer might search the area? Did others have access to it? The answers to questions like these help courts determine what people generally would think. Courts have generally held that employees do not have a reasonable expectation ofpri- vacy in the workplace, especially if using hardware provided by the employer,\" or if the employee handbook says they may be monitored.\" When a police ofcer persistently exceeded his monthly quota of text messages (SMS), his superior reviewed his texts to determine if they were work related. It turned out that they were mostly sexts (sexual texts) sent to the married ofcer's mistress. After the ofcer was disciplined, he led suit alleging that the department had violated his Fourth Amendment rights. The Supreme Court held that a government employer has the right to review its employee's electronic communica- tions for a work-related purpose, if the search was \"justied at its inception\" and if \"the measures ad opted are reasonably related to the objectives of the search and not excessively intrusive in light of the circumstances giving rise to the search?\" The Fourth Amendment also protects public school students. In the following case, a bikini-clad teenager claimed she had a reasonable expectation of privacy in her Facebook picture. (Sexts. Bikinis. Who said privacy is boring?) 9-20 Privacy Statutes Instead of having a single comprehensive data privacy law, the United States has adopted a collection of federal and state privacy laws that apply to particular types of personal data. Dif- ferent laws apply to your consumer credit information (discussed in Chapter 25, on consumer protection), your medical data, and even the movies you stream. Some laws also apply to the way information is collected and from whom.We will first focus on federal laws addressing surveil- lance and spying, then turn to a variety of state laws that broaden privacy rights for their citizens. Wiretapping and Electronic Surveillance The Electronic Communications Privacy Act of 1986 (ECPA) is a federal statute that pro- hibits unauthorized interception of, access to, or disclosure of wire and electronic commu- nications. It addresses the real-time interception of conversations in a section known as the Wiretap Act and access to communications that have been stored, such as email and voicemail, in the Stored Communications Act. We will address each in turn. Violators of the ECPA are subject to both criminal and civil penalties. Wiretapping. As we saw in the chapter opener, in the early days of the telephone, the Supreme Court held that the police could legally tap into an individual's private telephone lines (or wiretap) without a warrant. Six years later, in 1934, Congress made unauthorized wiretapping illegal for the first time. Today, the Wiretap Act makes it illegal to intercept or record face-to-face oral com- munications and telephone calls during their transmission.\" It also prohibits disclosing the contents of an illegal recording. The statute applies to both law enforcement and private individuals and has both criminal and civil penalties.As a result, police require a valid warrant to listen in or monitor a person's telephone calls. However, the Wiretap Act does not protect every conversation. 0 If one party to the conversation consents, secret recording is legal under federal law. However, many states have their own laws requiring the consent of all parties to the conversation for recording to be legal. 0 Businesses may monitor conversations with their customers in the ordinary course of business provided they give notice.This rule explains why we often hear \"this call may be monitored for training purposes" when we call companies. 0 Finally, wiretap laws only protect speakers with a reasonable expectation of privacy in the conversation.The two-step test for a reasonable expectation is the same as the one for the Fourth Amendment. Electronic Communications Privacy Act of 1986 (ECPA) A federal statute prohibiting unauthorized interception oi, access to, or disclosure of wire and electronic communications Wiretap Act The section of the ECPA that prohibits the interception oi iace-to-face oral communica- tions and telephone calls Stored Communications Act The section of the ECPA that prohibits the unlawful access to stored communications, such as email You Be the Judge Facts: James Huff was the chairman of the Kenton County Airport Board. which manages the Cincinnatil Northern Kentucky International Airport (CVG). While at a conference in Italy with his wife Bertha and a colleague named Larry Savage. Huff used his iPhone to call Carol Spaw for help with dinner reservations. Spaw. who was the executive assistant to CVG's CEO. did not answer. so Huff hung up and put his iPhone in his jacket pocket. Later. Huff and Savage retreated to an outdoor hotel balcony to discuss CVG personnel matters. including the possible ring of the CEO. Du ring this conversation. Huff's iPhone inadvertently placed a call to (\"pocket-dialed") Spaw's office phone. When Spaw answered. she quickly realized that the call was unintentional. but continued to listen in anyway. Concerned that the men were plotting against her boss. Spaw put her office phone on speaker mode and used an iPhone to record Huff's call. For one hour and 31 minutes. Spaw listened. recorded. and transcribed. Her iPhone first captured Huff's discussion with Savage and. later his personal conversations with Bertha in their hotel room. Spaw typed up her notes. hired a company to improve the quality of the iPhone recording. and shared the result- ing information with other Board members. Huff sued Spaw under the federal Wiretap Act. alleg- ing that she violated his privacy when she intentionally intercepted and disclosed his confidential communica- tions. The district court entered summary judgment for Shaw. reasoning that Huff did not have a reasonable expectation of privacy in his pocket-dialed call. and there- fore the Wiretap Act did not apply. Huff appealed. You Be thejudge: DidHu'km a reasoned/e expectation of privacy in [his pricier-dialed conversations? Argumentfor Huff: To demonstrate a reasonable expec- tation of privacy. Huff must first show that he had an 0mm! expectation ofprivacy and. second. he must prove that his expectation was reasonable. Huff and Savage retreated to an outdoor balcony to make sure their conversation was not overheard. Seeing no one within earshot. they had an actual expectation that their conversation was private. The defendant suggests that. because Huff knew his iPhone was capable of pocket-dialing. his expectation was not re a- sonable. If this view were true. no one in modern society could ever expect privacy. Argument for Spaw: James Huff's statements do not qualify for Wiretap Act protection because he did not have a reasonable expectation of privacy. The question is not what Huff thought. assumed. or wantedit is whether it was reasonable for him to believe he was entitled to complete privacy under the circumstances. Huff knew his phone was capable of pocket-dialing and transmitting his conversation. but he took no precautions to safeguard against this foreseeable event. He could have locked his phone or powered it down. His carelessness exposed his conversation to Spaw. If a person inadvertently undresses in front of an uncovered window. he cannot claim that he deserved privacy when a passerby takes his picture. The same concept applies here
