By: Jonathan T. Costello
Justice Kavanaugh, in a 2020 majority opinion, wrote: “Americans passionately disagree about many things. But they are largely united in their disdain for robocalls.” – The common questions people ask when their privacy is invaded by an unsolicited message are: How did a political campaign get my number? And is this legal, can politicians spam my phone?
Whether it be a default chirp or low rumble of a vibration notification, everyone knows their own phone’s text message notification sound. Typically, these notifications mean a friend or loved one wants to get in touch. However, in recent political cycles, more and more frequently the messages originate from the campaign of a politician running for office. To the average consumer, these unsolicited campaign texts elicit annoyance, the same emotional response as spam robocalls.
In the last five years, it has become a prolific issue, so much so that presidential campaigns have been sued over unsolicited political campaign text messages. To understand the legality of the political campaign texts, you must understand the history of cellular communication in the United States.
History of Text Messages and Regulation
Although text-based communication is as old as written word, the modern “text message” is just shy of 30 years old. It wasn’t until Blackberry, Apple, and Google took over the mobile phone market in the first decade of the 2000’s that text messaging became a part of every American’s daily life. Text messaging, much like other mobile communication, is under the regulatory power of the Federal Communication Commission (“FCC”). The FCC classifies text messages, Short Messaging Service (“SMS”) and Multimedia Messaging Service (“MMS”), as “information services” permitting users to benefit from measures that allow consumers to block unwanted messages.
In 1991, Congress passed, and President Bush signed into law the Telephone Consumer Protection Act (“TCPA”) of 1991, which was later codified as 47 § U.S.C. § 227. The TCPA restricts unwanted and unsolicited telephone communication, also known as telemarketing. The TCPA specifically targets the use of automatic dialing systems, pre-recorded messages, SMS messages, and faxes. The TCPA specially prohibits the use of “autodialers” and pre-recorded messages regarding cellphones, residential phone lines, and text messages.
In response to passing the TCPA, the government established the National Do Not Call Registry and implemented regulations prohibiting commercial telemarketers. These regulations included bans on autodialed calls to personal phones. However, the National Do Not Call Registry has gaping holes that include exceptions for political organizations, not-for-profit organizations, and surveys. In response to a recent surge in political campaign messages and litigation, the FCC has issued additional guidance in the P2P Alliance Declaratory Ruling. In response, the FCC has issued a declaratory ruling where the FCC clarifies that “if a texting platform actually requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time and lacks the capacity to transmit more than one message without a human manually dialing each recipient’s number… then such platform would not be an ‘autodialer’ that is subject to the TCPA.” This ruling clarifies that even if technology assists in the scaling of an operation, so long as there is a human pressing send, then that operation would not be restricted by the TCPA.
How Campaigns Circumvent Autodialer Restrictions: “Peer-to-Peer” Texting Services
Peer-to-peer (“P2P”) texting is a whole new kind of campaigning that has exploded in popularity in the past 5 years. Apps like Hustle and RumbleUp have given campaigning politicians unparalleled access to potential voters. By combining the resources and scalability of big data with the manpower of political campaigns, Hustle and RumbleUp have found success on the opposing sides of the American political spectrum by providing peer-to-peer texting services.
Political campaigns want to continue to use text messaging because it is effective, with experts claiming up to a 98% read rate, a 30% increase in campaign revenue, a 20% increase in event attendance, and even a 2% to 3% increase in voter turnout. P2P texting has gained political momentum since 2016 when the Sanders’ campaign sent out over 5 million texts to potential voters. President Trump’s reelection campaign plans to send out “almost a billion texts” to potential voters, which is two or more texts to every person in America, regardless of voting status.
How Did They Get my Personal Cellphone Number?
Almost everyone’s information gets vacuumed into the voter rolls hosted by data vendors. The Pew Research center found that over 90% of adults in the United States could be found in at least one registry. These data vendors collect information from a wide range of sources, but the main source is public voting records which include name, address, and party affiliation. The vendors then supplement this information with other sources such as phonebooks, credit data, and social media profiles. The vast amount of information collected can contain sensitive, personal information such as credit scores or current locations. These amalgamated profiles are then sold to political campaigns who combine the profile with profiles from other vendors, and user-submitted information from surveys and campaign events.
Is This Legal? Are they Allowed to Send Me Texts?
That is the key question. These political messages live in a legal gray area. Some service providers have recently blocked mass messages from the Trump campaign because carriers’ advisors were concerned that the mass text messages could violate federal anti-robocall rules and FCC rules, which attach a fine to each message sent.
For political campaign texts, the key issue is whether these text messages are “peer-to-peer” or if they involve a form of automation, possibly subjecting them to restrictions and consumer protection laws.
The legal gray area lives in the technical process. A human is needed to gather and compile contact information from various sources, such as voter files, surveys, events, and purchased lists. Those numbers are then shared with tech firms that compile the numbers and add them to the automated texting software. This software is then hosted by the tech company and allows the political campaign to utilize the contact profile in one of two ways, campaigns can either: have a volunteer or staffer manually press a send button, or software can be used to automatically send messages.
Political campaigns and distributions firms argue that the mass messages are peer-to-peer because a human must manually hit send before the text is distributed. Advocacy groups argue that many political texts rely on systems with the capacity to make automated robocalls.
According to the FCC, autodialed texts are not allowed without prior express consent. The TCPA rid the world of annoying robocalls. But the year it was written and codified, 1991, was a year before the first text message was ever sent. Without defining what an autodialer in the modern world is, there is no way of knowing how political texts might be regulated under TCPA. The FCC’s clarification in its 2020 Declaratory Ruling does help provide some clarity, but it is not enough to fully address the P2P system. The FCC notes that “only technology that has the capacity to store or produce numbers to be called using a random or sequential number generator and to dial such numbers, is deemed to be an autodialer. Whether a certain piece of equipment or platform is an autodialer turns on whether it is capable of performing those functions without human intervention, not whether it can make a large number of calls in a short time.”
This new clarification from the FCC does not provide enough specification as to what qualifies as an autodialer in the context of P2P campaigning. As discussed above, the P2P system does require human intervention to create a voter profile and enter it into a mass texting platform. The system also can, but does not require, human intervention to activate the mass texting platform, or “press send.” P2P texts are unlike traditional spam messages in that they must be sent out individually, one sender to one receiver. But they are like spam in that the sender can hire an unpaid staffer to send an unsolicited promotional message via an electronic channel to thousands of people they do not know and without the recipient’s consent.
As the issue stands now, no clear guidance specifically regulates unsolicited political campaign texts. It is clear that autodialed messages without prior consent are not allowed, however where is the line drawn when technical integration is so integral to peer-to-peer systems? The Federal Communication Commission, Federal Trade Commission, and Federal Election Commission have provided no firm guidance as to what specifically is or is not allowed. It is unlikely there will be any major changes before the fall election cycle concludes. Ultimately, the regulatory agencies will need to re-examine their regulations to provide guidance on what is and is not allowed in the modern world. If the regulatory agencies fail to act, it will fall to Congress to pass a new version of the TCPA and National Do Not Call Registry which includes texting, video chatting, and other modern forms of communication. However, some political consultants have been advising their clients’ that they should not rely upon P2P messaging for the next election cycle in 2022.
How can I opt-out and make them stop?
Replying “STOP” to a text indicates to legitimate businesses you no longer wish to be subscribed, unfortunately, this can also be abused by scammers to indicate a working cellphone number. You can forward messages to the Spam Reporting Service by typing “7726” or “SPAM” and you can report the message to the Federal Trade Commission’s complaint section. You can block the sending number using options found in the settings of your iPhone or android.
For the time being, Americans will need to endure unsolicited political texts for the rest of this political cycle. Hopefully, the FCC and legislature will take Justice Kavanaugh’s sentiment to heart and implement a modern version of the TCPA that adequately addresses modern technology.
Student Bio: Jonathan T. Costello is a second-year law student at Suffolk University Law School and a contributor for the Journal of High Technology Law. He is also the Treasurer of the Suffolk Law Business Law Association. Jonathan earned a Bachelor of Arts degree in History from Trinity College where he completed a junior thesis on recidivism in the United States. Between undergraduate and law school, Jonathan worked in real estate and insurance while coaching rowing in the Boston area.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
