It’s time to hang up on a bad anti-robocall law
The topic of robocalls went to the United States Supreme Court this week, as the court heard arguments in a case that asks whether computer programs used by Facebook to send text messages are illegal under a law. 1991 law.
The court is likely to say no. The Telephone Consumer Protection Act of 1991 (TCPA) was drafted with specific technology in mind from the 1980s. Modern computer systems that Facebook and other companies use to manage their robocalls do not meet this definition. And more importantly, it’s up to Congress – not the courts or the Federal Communications Commission – to update the law for the Internet age.
To get a glimpse of how the court is likely to rule, one need only consult the opinion of the judge at the time. Amy Coney BarrettAmy Coney BarrettSupreme Court Reverses California Donor Disclosure Rule Supreme Court Leaves CDC Moratorium on Evictions NIGHTENING ENERGY: Supreme Court Rules Pipeline May Seize New Jersey Land | Study: EPA Underestimated Methane Emissions From Oil and Gas Development | Kevin McCarthy sets up working groups on climate, other issues READ MORE wrote less than a year ago in an almost identical case before a unanimous panel of the 7th U.S. Court of Appeals. The 7th Circuit discovered that modern automated systems used to contact consumers with whom companies have existing business relationships are different from the “automatic telephone numbering systems” used in the 1980s to indiscriminately call random numbers. The same argument applies in this week’s case and the same outcome is likely.
Assuming the court does indeed reject this anti-robocall law, there will be predictable outrage, with headlines screaming the court siding with robocallers at the expense of consumers. Partisan resentment will only be magnified if, as seems likely, Judge Barrett writes the majority opinion for the Court..
In truth, that would be good riddance of a bad law.
The TCPA was written for a different time. Some automated callers, of course, still use systems that dial phone numbers randomly and indiscriminately. These callers are scammers, typically using bogus caller ID information and calling from untraceable phone numbers routed through foreign VoIP networks. These lawless scammers, who account for the majority of the nearly 4 billion automated calls made each month, are not deterred by the law because they are nearly impossible to find.
Other auto callers are companies like Facebook, drugstores reminding customers to pick up their prescriptions, or sports venues using text messages as part of jumbotron games in the stadium. Some consumers may find these calls unwanted; others may find them useful or entertaining. Either way, these are legitimate calls, not scams. But while fraudsters escape legal liability by hiding from the law, these legitimate users are often caught in strict TCPA liability.
We don’t use the phone the same way we did in the 1980s today. We have moved on from a time when most households shared a single phone line that disruptively required someone to answer each time. that it was ringing at a line in which a single smartphone can have multiple phone numbers routed to it. In addition, this phone’s ringer can be muted, ubiquitous Caller ID can filter calls, and transactional calls can be replaced with text messages that impose no immediate burden on the recipient. Unlike the 1980s, it no longer makes sense today to ban entire categories of calls based solely on the technology used to make them.
The demise of the TCPA would offer a chance to rethink our approach to the robocalls problem. Substantial progress has already been made in recent years by the telecommunications industry, working with the FCC and Congress, to launch new encryption-based technology that will make it nearly impossible to tamper with caller ID information. .
But truly tackling robocalls – and many other forms of unwanted speech – requires a more fundamental shift from the 20th century approach to thinking in terms of “good” and “bad” speech. A 21st century approach to these questions allows consumers to make their own decisions about whether speaking is desirable. With robocalls, for example, callers might be required to provide information about the purpose of the call via text message before making a voice call or use standardized tools to allow consumers to opt out of receiving information. additional.
Millions of Americans rightly hate robocalls, but we should gladly cut the cord of bad law that doesn’t protect us from them. The nature of these calls, the technology used to make them, and the damage they can cause have all changed over the past three decades. Rather than relying on the government to ineffectively ban broad categories of speech, instead rely on technologies that can allow consumers to make their own choices about the speech they want to receive.
Justin (Gus) Hurwitz is Associate Professor of Law and Menards Director of the Nebraska Governance & Technology Center. In January 2018, he joined ICLE as Director of Legal and Economic Programs.