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1968 Federal Law basis for Pocket-Dial Decision:  In July, the 6th Circuit Court of Appeals affirmed summary judgment in part in Huff v. Spaw, a matter in which the listening and recording of a 91 minute pocket-dial was determined to not be eavesdropping.  James Huff, chairman of the Kenton County, Kentucky, Airport Board, had the unfortunate luck of discussing firing the airport’s CEO at length, all while the recipient of his pocket-dial, the CEO’s executive assistant, listened and recorded. 

Huff alleged, among other things, that the executive assistant violated Title 18, section 2511(1)(a) of the United States Code, which relates to intentionally intercepting oral communications.   Section 2511 was enacted in 1968 as part of the Omnibus Crime Control and Safe Streets Act of 1968, and was intended to “assist State and local governments in reducing the incidence of crime, to increase the effectiveness, fairness, and coordination of law enforcement and criminal justice systems…”

In his signing statement, President Johnson noted reservations, but that he was signing the bill “because it responds to one of the most urgent problems in America today—the problem of fighting crime in the local neighborhood and on the city street.” 

The Court in Huff noted that in his deposition, Huff “admitted that he was aware of the risk of making inadvertent pocket-dial calls and had previously made such calls on his cellphone.”  (Opinion, page 11)  The opinion further noted “simple and well-known measures” including locking the phone, setting up a passcode or using one of many apps, and that Huff did not employ any of these measures.  The Court opined, “[h]e is no different from the person who exposes in-home activities by leaving drapes open or a webcam on and therefore has not exhibited an expectation of privacy.”  (Id.)

Most of Huff’s statements were made to a fellow board member, however some were to his wife.  The Court held that Bertha Huff did have an expectation of privacy because she could not be held responsible for her husband’s pocket dial.  (Opinion, page 17) 

Be careful with those pocket dials!

Now in California: Transfer on Death Deeds: Last week, Governor Brown approved Assembly Bill 139, which will allow for revocable transfer upon death deeds (RTDD).  RTDDs will provide Californians with a non-probate option for conveying real property for anyone who dies on or after January 1, 2016.  According to author Assembly member Mike Gatto, “[t]hese streamlined transfers help families avoid the ridiculously high fees and time consuming bureaucracy of probate.  Even though family members can easily deed a house to a loved one while alive, California provides no easy way to do so upon death.”  In addition to providing forms for the creation and revocation of the RTDDs, Assembly Bill 139 also tasked the California Law Revision Commission with studying the effects of RTDDs and to report back to the Legislature in 2020. 

With this new law, California joins 25 other states and the District of Columbia in allowing some version of RTDDs.  Many are based on the Uniform Real Property Transfer on Death Act (2009).

October 11 is coming:  The legislative session in California ended September 12th but many bills are still sitting on Governor Brown’s desk.  He has until October 11 to approve, veto or pocket-veto the measures.  Stay tuned!

In Case You Missed It on our Blog:  Learn more about the legislative practice of gutting and stuffing bills. 

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