The subject of robocalls went before the U.S. Supreme Court this week, as the court heard arguments in a case that asks whether the computer programs Facebook uses to send text messages are illegal under a 1991 law.
The Court is likely to say no. The Telephone Consumer Protection Act of 1991 (TCPA) was written with a specific 1980s-era technology in mind. Modern computer systems that Facebook and other companies use to manage their automated calls don’t fit that definition. And most importantly, it is up to Congress — not the courts or the Federal Communications Commission — to update the law for the internet era.
For a preview of how the court is likely to rule, one need only look to the opinion then-Judge Amy Coney BarrettAmy Coney BarrettSupreme Court low on political standing Graham tries to help Trump and McConnell bury the hatchet Are COVID-19 vaccine mandates a strategy to end the pandemic? MORE wrote less than a year ago in a nearly identical case for a unanimous panel of the U.S. 7th Circuit Court of Appeals. The 7th Circuit found that modern automated systems used to contact consumers with whom companies have existing business relationships are different from the “automatic telephone dialing 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 effectively throw out this anti-robocall law, there will be predictable outrage, with blaring headlines decrying the court siding with robocallers over consumers. The partisan rancor will only be magnified if, as appears likely, it is Justice Barrett who writes the Court’s majority opinion.
In truth, it would be good riddance to a bad law.
The TCPA was written for a different era. Some robocallers, to be sure, do still use systems that randomly and indiscriminately dial phone numbers. These callers are scammers, typically using fake caller-ID information and calling from untraceable phone numbers routed through overseas VoIP networks. These lawless scammers, who comprise the majority of the nearly 4 billion robocalls made each month, are undeterred by the law because they are almost impossible to find.
Other automated callers are companies like Facebook, pharmacies reminding customers to pick up prescriptions or sporting venues using text messages as part of in-stadium jumbotron games. Some consumers may find these calls unwelcome; others may find them useful or entertaining. In any case, these are legitimate calls, not scams. But while the scam callers escape legal liability by hiding from the law, these legitimate users are often caught up in strict TCPA liability.
We don’t use telephones today the same way we did in the 1980s. We have moved from an era in which most households shared a single phone line that disruptively demanded someone answer it anytime it would ring to one in which a single smartphone can have multiple phone numbers routed to it. What’s more, that phone’s ringer can be silenced, pervasive caller-ID allows calls to be screened and transactional calls can be replaced with text messages that don’t impose any immediate burden on the recipient. Unlike in the 1980s, it makes no sense today to prohibit entire categories of calls based solely on the technology used to make them.
The TCPA’s demise would offer a chance to rethink our approach to the problem of robocalls. Substantial progress has already been made in recent years by the telecom industry, working with the FCC and Congress, to launch a new, encryption-based technology that will make it nearly impossible to forge caller-ID information.
But truly addressing robocalls — and many other forms of undesirable speech — requires a more fundamental shift away from the 20th-century approach of thinking in terms of “good” and “bad” speech. A 21st-century approach to these issues empowers consumers to make their own decisions about whether speech is desirable. With robocalls, for instance, callers could be required to provide information about the purpose of the call by text before making a voice call or to use standardized tools to allow consumers to opt out of receiving further information.
Millions of Americans justifiably hate robocalls, but we should gladly cut the cord on a bad law that fails to protect us from them. The nature of these calls, the technology used to make them and the harms they can pose all have changed over the past three decades. Rather than rely on the government to ineffectively prohibit broad categories of speech, let’s instead rely on technologies that can empower consumers to make their own choices about what speech they want to receive.
Justin (Gus) Hurwitz is an Associate Professor of Law and Menards Director of the Nebraska Governance & Technology Center. In January 2018, he joined ICLE as a Director of Law & Economics Programs.