The Robocall Conundrum
Frustrating robocalls, in the form of cell phone calls and texts are increasing. The April, 2021 Supreme Court decision in the Facebook case makes it even easier for corporations to spam you.
Assault on PrivacyThe assault on our privacy (and sanity) gained momentum with the Supreme Court decision in Facebook, Inc., v. Duguid last week. (Aptly decided on April Fool’s day). The Telephone Consumer Protection Act, (TCPA), was the law at issue, enacted in 1991, that restricts the ways and amount of times corporations can infiltrate your phone, bug the hell out of you and invade your life.
Robocall law is evolving, frustrating and massively inadequate. But this Supreme Court decision was correct, based on the laws we currently have on the books.
Nobody likes receiving robocalls or texts. Yet, we can’t stop it. In February 2021, Americans received more than 4.6 billion robocalls, a 15% increase from January. And folks, it’s about to get worse. Why are companies like Facebook, Google, and others allowed to send you this rubbish?
Facebook v. DuguidThe lawsuit involved text messages that notify Facebook users of an attempted login. Plaintiff, Noah Duguid, sued after receiving multiple texts despite not having a Facebook account. Duguid argued that Facebook was violating the TCPA. An appeals court agreed, but the Supreme Court interpreted the law’s definitions differently.
For the layman, the succinct explanation is this: robocalls are illegal only if they are sent to you from an "automatic telephone dialing system, (ATDS). So if companies can find a way around the ATDS, they can spam at their leisure. The TCPA specifies that a calling device must have the capacity either to store or produce a telephone number using a random or sequential number generator. What does that mean? It’s complicated, but SCOTUS found that the TCPA applies to systems that generate lists of numbers and call them indiscriminately, not a system that simply stores numbers and automatically calls them.
For 30 years, over literally thousands of lawsuits, our courts have grappled with the definition of ATDS. During this time, technology has changed and improved so quickly that legislators can’t keep up. What we are left with is a Model-T law in a Tesla world. Phone calls are not made with a telephone, they are sent using super computers.
Justice Sonia Sotomayor wrote the unanimous opinion in the Facebook case and found that Facebook didn't break the law. "Duguid's quarrel is with Congress, which did not define an autodialer as malleably as he would have liked," she wrote in the opinion. "This Court must interpret what Congress wrote. . .” In sum, the law has not kept up with technology.
No Current SolutionIn the important battle between corporations’ freedom to brainwash you, scam you, mine your personal information and nag you to death, and your freedom to privacy, the corporations are winning in a blowout. And they will keep winning.
Presumably, the solution is to change the law. But with every change that is made, corporations will find a loophole, a weakness, or a new technology. "Companies will use autodialers that are not covered by the Supreme Court's narrow definition to flood our cellphones with even more unwanted robocalls and automated texts," said NCLC senior counsel Margot Saunders in a statement.
And behind the scenes, legislators on both sides of the aisle are romanced by corporate lobbyists. Beholden to the money and power of corporate interests, our government does not have the will or desire to curtail the robocall onslaught. It’s a minor annoyance, a small intrusion. In the short term at least, you’ll have to live with most robocalls and texts it if you want to use a cellular phone.