Supreme Court sides with Facebook in narrowing the federal robocall ban
scotusblog.com
scotusblog.com
> Noah Duguid sued Facebook under the act because he received several text messages from the company, alerting him that someone had attempted to access his Facebook account from an unknown browser — even though Duguid never had a Facebook account or gave the company his number. Those messages were sent to him using a form of automated technology, but one that did not use a random or sequential number generator.
It's obvious that companies should be allowed to contact you for a good reason if your number was entered into the system by someone else. Whether it was done by a robot or a human doesn't matter. The offender here was whoever put Duguid's phone number into FB's database.
I've created a filter to send them to trash, but it just feels so very sad.
It was ebay, not paypal. Think I was paying ebay through paypal at the time.
Or are you saying you couldn't access it because it doesn't exist
I think he's saying he didn't even have access to the DB of non-plaintext passwords.
You do now :-)
Without reading further into the details of this case than what's given in TFA, I would go so far as to say that there probably wasn't an "offender" in any strict sense. Most likely what happened is that someone entered their own number in connection to their own account, then they got a new number and never bothered updating Facebook, then the number got recycled and assigned to Duguid so he got the alert. That's what happened to me when I first got the number that I have now -- it had, from what I could piece together, belonged to a young woman from a couple towns over who had apparently up and moved halfway across the country and gotten a new number without bothering to tell anybody at all. It was an annoyance to be sure but never once did I think of blaming the callers/texters.
I've had this happen to me and really wish phone companies would wait at least 90 days before putting a disconnected number back in service. The worst part of it is I was given the option to "disable" SMS. But it turns out that doesn't actually prevent shortcode messages from going through.
1) using caller ID to return a missed call unless you were sure you were calling an existing customer
2) sending a one-time password over SMS, unless you had already validated that the telephone number belonged to your customer
3) using call-center software that automatically connects an operator to the customer's on-file telephone number in order to validate that the number was correct!
Note that it's pretty hard to validate a phone number belongs to someone. You could ask their telephone company, but their telephone company shouldn't disclose subscriber information, and even if they did, maybe you get a name, but lots of people have the same name as me, so what does that show?
Commonly, people send a text message with a code or a phone call with a code to demonstrate control (not belonging), but that's almost always automated, and you would need the number to be validated before you could validate it.
But there’s still no way to know if that number later gets released to another person.
Some carriers do make available lists of recycled numbers, and some telephone information companies aggregate these lists, when I was looking, coverage was sparse though, and questions about reliability and privacy were too big relative to the limited coverage. Sharing of confidential information was an issue too: carriers wanted to provide events only for numbers of interest to a 3rd party service, so the carrier didn't divulge the number of customers leaving their service; the 3rd party service didn't want to provide numbers of interest because it would divulge user count. I may be biased (I was working for a service), but the recycled number list feels less privacy invasive than providing numbers of intetest. The numbering space is small, so you can't meaningfully obscure the numbers, etc. Determining which carrier is responsible for a number is also tricky, of course.
Of course, getting a working incoming number for all countries worldwide that doesn't cost users an arm and a leg to message is not exactly easy.
Marks was used as precedent for this lawsuit. Facebook argued that this case was different from Marks. The Ninth Circuit found otherwise. SCOTUS appears to have shot down the ruling from Marks.
Marks was widely regarded as a terrible decision because it made no sense at the time. It's nice to see SCOTUS return some common sense to the law.
Note also that the TCPA allows for statutory damages of up to $1500 per violation, so it takes less than 675 calls/texts to rack up $1M in liability. Class action attorneys love it because they don't have to show damages. They only have to show that the call or text was sent using an autodialer.
Citation? I've looked over _Marks_, and it doesn't seem unreasonable, and the 9th circuit was not the only court to adopt the same interpretation of the statute. I can see why certain industries would lothe that rule, but it doesn't seem to me that the Court's opinion is a fine, if not exemplary, example of legal interpretation. Similarly, it's far from clear that Congress intended that such behavior be permissible when they passed the law.
Honestly, _Marks_ makes more sense to me than the Supreme Court's interpretation does. Reading a law's text in the narrow and formal way that they did causes the law to be nonsensical.
So even if you are sure it is the number of a customer, it is verified and used for correspondence it can still be sometime else number a year (I don’t know how long the recycling waiting time is) later.
There's work being done to address that:
The evidentiary question of whether a customer had actually consented to receive calls/texts from a service to which they had subscribed is separate from the question of liability for using automation to call/text a number that turns out not to belong to a customer.
The other two are fine casualties for a world with far less autodialing. Call centers probably ought not exist.
In other words, it is not obvious at all. It just unfortunate turn of events for average prole.
That said, it seems quite reasonable that companies collect ways to contact you, including email and phone number (at least until there are ways to easily make these unique per business so they can't be used to track you).
I'm just confused about how his phone number got associated with another account. Doesn't FB include a verification step for setting a phone number?
>the Third, Seventh, and Eleventh Circuit Courts of Appeal require number generation in order for technology to qualify as an ATDS. [...] The Second and Ninth Circuit Courts of Appeal, in contrast, have liberally construed the statutory text and do not require number generation.
https://www.mintz.com/insights-center/viewpoints/2301/2020-0...
This was an appeal from the 9th Circuit, so provided an opportunity for the Supreme Court to overturn the lower Court's ruling.
As it is, couldn't this be FB more or less phishing? That is, baiting non-users to register? Certainly, such tactics have been used with email. Why not SMS?
Passing legislation requires the approval of three bodies: the Senate, the House, and the President. That's before you add in the filibuster in the Senate, which sets a very high bar on its approval. For the Supreme Court to add a fourth check-and-balance means that legislation is practically impossible.
There is an enormous pressure to not do anything. That feature is well-intended, to ensure the legislation is passed with due deliberation and protect minority interests. But it means that any sizeable minority can throw a wrench into it. Legislation simply does not get passed.
It would almost certainly be possible to construct a rewrite of the robocall rules that would be broadly agreed on and suit the Supreme Court's concerns. But it will also be in somebody's interest to see that not happen, and they'll have allies who want to leverage that interest: "I'll vote to suppress this law if you'll vote for my thing."
I'm not calling on the Supreme Court to legislate from the bench, but rather to point out that the widely-praised system of checks and balances is far from perfect. It gets in its own way a lot, and it's very easy for everybody to point fingers at everybody else and claim it's their fault. It practically begs people to do that.
Increased partisanship has certainly made that worse. And I'm not so much interested in pointing fingers here, either, but rather to note that it's the system of checks and balances that encourages that partisanship. It sets such a high bar on passing laws that only dedicated allies are capable of passing anything -- and to ensure that dedicated allies can stop anything. With a huge thumb on the scale towards the latter, so that no amount of "surely we can all agree to be agreeable..." can compensate.
To add some color, federal legislation affecting fifty states equally is hard to pass without broad consensus. I agree that was designed in as a feature, not a bug. It means when the nation doesn’t feel in the mood to compromise, the status quo holds more weight. The federal legislature has certainly had no issue passing laws in its time and certainly will continue to do. I think we’re still wrestling with the impacts of social media on politics though, trying to incorporate that dynamic for good or ill.
The last one I can remember is George HW Bush -- unless you want to count the brief honeymoon his son was given in the immediate aftermath of 9/11. Not that people liked George HW Bush (he didn't win reelection), but he was opposed rather than actively harassed. Arguably Bill Clinton got such a "honeymoon" period, but after that he was opposed with a literal vengeance.
Presidents are a very particular lens to look at this with, but I think it's illuminating. I believe it reflects the nation not being interested in compromise. (There are other interpretations, but I think it's indicative.)
If there was a time that the federal legislature had no issue passing laws, it's at least 30 years ago. That's before a lot of HN users were even born. And it shows no time of abating any time soon. Indeed, it only seems to be growing.
I guess a difference may have been that legislators weren’t as accountable in the same way as they are today, and had more room to negotiate and engage in generalized reciprocity.
Today, politics has a very distasteful air of religious zealotry, where “sinning” against the orthodoxy of the true believers on both sides is shamed, purity idolized. So everyone is fighting tooth and nail for the barest majorities and procedural tricks to let them manifest their will with nothing more than that.
On one hand I find the accountability good, but on the other I wish as a nation we cared less about “national conversations” and thought/acted more locally. National solutions are rarely a well-suited or efficient fit, so in a way, the harder it is for party zealots of either side to enforce their will across fifty different states, the better, IMO. The threat that either side will be successful is what keeps everyone overly-anxious and hyper-engaged/enraged. In a way, having confidence in the inefficiency is good medicine.
If there was a "golden age" of national collegiality, it was the postwar era -- exactly the time we were busily building infrastructure that made interstate commerce and travel much easier. That ended when genuinely national and world issues came to the fore -- a push to end minority abuse in some states, and a war that forced young men to participate. I believe that the lines were set then and we continue to re-fight that same fight.
The issue in TFA is exactly the kind of thing that needs a national-level response: the only thing more distasteful than a national rule about robocalls is going to be 50 state rules about robocalls that would require federal court litigation anyway. Past interstates and airplanes, the Internet has replaced ordinary telecommunications, and blurred state lines almost to invisibility.
There are two main problems here, I think:
States and localities are usually not funded very well. With the exception of high-tax states like CA and NY, most states don't take in enough revenue to do anything of significant size, and residents are generally against tax hikes.
While the federal government was designed to be fairly limited, that's not remotely the case anymore, and even when states get money from the federal government, they're limited in what they can do with it. For example, several CA legislators would love to set up single-payer health insurance in CA, but federal Medicare dollars come with too many strings attached (and only the US Congress can grant CA the ability to use that money in different ways).
I feel like in many ways we have the worst of all worlds. The federal government doesn't want to invest in services for citizens, but the states and cities don't have enough money to do it themselves, and aren't allowed to do things with much of the money they get.
Which implies that the problem is still that it's too easy to do things at the federal level. Let them actually do nothing so the states can do something.
And people would care more about state elections if the federal government wasn't preempting everything.
i'd argue 'encourage' too strongly leans into intent here, and that 'permit' seems closer to what's going on. any multi-party, adversarial system is prone to partisanship. 'checks and balances' may be more explicitly adversarial, but making that explicit isn't necessary for people to line up against each other in a political context and create gridlock. plus, 4 factions aren't really better than 2 at creating gridlock (because they often devolve into 2 opposing factions anyway).
I just have a slightly hard time believing the Supreme Court when it throws up its tidy hands and says, "Well, this is a problem for the legislature", knowing full well that the legislature won't.
Especially what it's done along partisan lines, though it isn't the case with this one. The Supreme Court is dominated by fans of the status quo, who then set the rules to further encourage the status quo.
It's very hard not to read it as "Everything is fine with me, and if it's not fine with you, go get the House and the Senate and the President to agree with you (snicker). Then come back and I'll have a look at it."
Close to perfect is a pretty high bar.
When a system of checks and balances lasts a quarter of a millennium, it got more right than it did wrong.
>> Legislation simply does not get passed
The Justice Department once tried to figure out how many federal crimes there were, they gave up and could only estimate. That was 35 years ago, they estimated something like 3000 crimes that were defined, it is estimated to be 4500 now. There are tens of thousands of pages of federal legislation. There are thousands of pages in the federal tax code alone.
Legislation obviously does get passed.
The US constitution was supposed to limit the power of the federal government. It has failed to do that in a meaningful way.
What you are saying is that senators representing as little as 2% of the US population should be able to overrule the senators representing the other 98%.
For practical purposes since we know which side are complete obstructionist what you are saying is that Democrats should surrender control of the country regardless of how much of the vote they win. On the An unholy alliance of Oklahoma, Utah, Alaska, Mississippi, Kansas, Nebraska, Idaho, West Virginia, Montana, South Dakota, North Dakota, Alaska, and Wyoming. Republicans controlling 51% of the vote in states representing 7.8% of the US population could block all progress forever until they got their way. That is to say they would retain a death grip on all progress with as little as half of that 7.8% of the population behind them.
This micro minority death grip on our nation would be so strong that the governors veto power hardly matters because anything that wasn't blocked by 1/4 of the senate would never find itself blocked after.
In practice the uneven representation that is a design goal of the senate makes it both too easy for flyover states to force their agenda and too hard for policies that are broadly popular to be blocked by the flyover states.
The Constitution puts limits on the power of government, the goal isn't a limited federal government.
The country thrived under the Constitution with a narrow interpretation of the commerce clause and a federal government that spent 3% of GDP instead of 20% for more than a hundred years.
The expansive "reinterpretation" of federal power in the 20th century was the source of all the existing trouble.
If anything we're under-funding it now for precisely that reason. The federal government extracts money from every state's tax base and then spends it on the F-35. Whereas the states have to compete with each other for talent, so California given their proportion of the same money would want to give it to UCLA or Berkeley to attract the sort of high-earning taxpayers who want to send their kids to those schools or graduate from them and stay in the state, or cause local research grant recipients to put down roots and found successful companies. And so would all the others.
"The course of history shows that as a government grows, liberty decreases."
Washington seems to agree, for example this quote from his farewell address:
"It is important that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position."
the senate was the selected compromise in this regard. give each state 2 senators that collectively have the power to represent state interests with majority vote, while being less prone to the corruption of single individuals (governors).
This seems incorrect. "Predictive dialing" sounds like it should meet the definition of a sequential dialer.
This ruling seems a little odd but also I understand why the court ruled the way it did, even if the grounds seem like an excessively tortured reading of the statute. (Like, there was probably an easier way to get this ruling.)
The key distinction is not whether the system can dial numbers from a list randomly or sequentially, but whether it can generate numbers randomly or sequentially (as opposed to being provided by another party).
Those would still be illegal under TCPA, because either the use of "an artificial or prerecorded voice" or "automated dialing system" establishes the illegal action.
This case only deals with the definition of "automated dialing system".
Why would it be horrible if there were a well-defined grammar for legal texts?
1. What would a device having "the capacity to store a telephone number using a random or sequential number generator" look like? That seems self-contradictory.
2. Does this now mean any company can open up a phone book (or even more exhaustive source) and automatically dial every number and get away scot-free?