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Privacy, Technology and Perspective

Like We Need This:  SCOTUS rules that the TCPA allows Robo-Texting. In another example of how hard it is to apply strict “textualism” analysis in the cyber age, this week, the United States Supreme Court looked at the exact language of the 30 year-old Telephone Consumer Protection Act (TCPA), and concluded that its language doesn’t reach to automated sending of text messages – a technology which didn’t exist at the time the TCPA was passed. 

When the TCPA was enacted in 1991, the problem was automatic telephone dialing systems which used computerized voices to deliver an ad. Sometimes the systems picked numbers at random, and other times they called numbers in sequence, but however they were picked, they were an exasperating nuisance. Not only would these calls drive people crazy (especially at dinnertime), but the auto-dialers could also call emergency lines at random, or tie up all of a large business’s extensions by starting with its main number.

In this week’s case, Facebook v. Duguid (filed in 2014), the problem was unwanted text messages.  Mr. Duguid was receiving such messages from Facebook – with which he did not have an account, and to whom he had not given permission – and was representative of a class which sought $1,500 per message, under the TCPA.  The Ninth Circuit had permitted the action to go forward. 

You can read the text of the TCPA by clicking on the following link:

The key issue is the definition of an “automatic telephone dialing system.”  The TCPA defines this as a system able “to store or produce telephone numbers to be called, using a random or sequential number generator” (emphasis added).  That was a fair description of what was happening in 1991, but Facebook simply was not using a “random or sequential number generator” to select which text numbers to contact.  As is true of so much that happens with Facebook, there was nothing “random” or “sequential” about it. 

Applying a textual analysis, the Supreme Court ruled unanimously (!) that the TCPA’s definition of an “automatic telephone dialing system” does not include Facebook’s text-selection system within its grasp.  To “[expand] the [TCPA] definition of an auto-dialer to encompass any equipment that merely stores and dials telephone numbers would take a chain saw to these nuanced problems when Congress meant to use a scalpel,” wrote Justice Sotomayor. 

You can read the full text of the opinion, with Justice Alito’s concurrence, here:

Two points leap out: 

First, we see again how hard it is to legislate – or even regulate – in the cyber field when the technology seems always to be many steps ahead.  In an era of near-universal judicial “textualism” this is bound to get worse before it gets better, especially since there’s so much confusion and debate over what “textualism” actually means. 

Second, we see again a growing disconnect between what “privacy” ought to be and how it is actually regulated.  In this case, Mr. Duguid said he didn’t even have an account with Facebook and certainly hadn’t given it permission to text his number.  Justice Sotomayor speculated that he may have been given a “recycled number” once owned by someone who had.  In short, here’s another example of too much focus on the time-consuming minutiae of notice and consent, and not enough on how people should be (or needn’t be) free of intrusions without having to swat them down.

For an excellent discussion of the problems of “textualism” in the context of this case, click on the following link:

Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.