Do you hate robocalls and robotexts? So do I. Shouldn’t they be illegal? Yes, in fact they are — or at least mostly were — under a 1991 federal law that prohibits many automated calls.
Do you hate robocalls and robotexts? So do I.
1991, you say? That’s right. More than a decade before Facebook launched and asked for our phone numbers (and, some would say, everything but our DNA), Congress passed legislation dealing with robocalls. That was more than a year before the first text message was sent, and many years before texting became the main method of communication for most of us.
This week, the Supreme Court unanimously concluded that the 1991 federal law, the Telephone Consumer Protection Act, does not apply to a system Facebook uses to alert users to questionable logins. Any federal law that uses the word “telephone” is bound to be at least a few decades old. And herein lies our problem.
This is the story of technology that changes faster than the law. It’s a story of the Supreme Court trying to determine how a 30-year-old law applies to newer technology; a story of how seemingly mundane issues of statutory interpretation can affect our lives; and this is a story of a federal law that is likely already outdated and needs updating to reflect how companies and political campaigns actually try to contact us.
If you are reading this article, you almost certainly have, or know a number of people who have, a Facebook account. That means you or a bunch of people you know have gone through the process of signing up for a Facebook account and perhaps opting in to a security notification system that sends text messages in the event of a suspicious login.
The days of landlines and companies using random or sequential number generators are apparently gone.
That takes us to the recent case at hand. Noah Duguid does not have a Facebook account, and he apparently does not want one. And he certainly doesn’t want to receive text messages from Facebook about suspicious login attempts to a Facebook account he does not have. And yet, it was Facebook text messages he received, for almost a year.
Facebook posited that Duguid’s current number could be the former number of a Facebook user who never updated their contact information, which is a perfectly plausible situation. (Sincere apologies to the poor soul who received my friend’s old cellphone number; no person should have to receive that many frantic texts from me about how to use kitchen appliances — not everyone’s culinary skills soared during the pandemic.)
But Duguid was not amused by these unwanted text messages from Facebook. In fact, he was so unamused that he tried to bring a class-action lawsuit against Facebook claiming that the social media giant violated the 1991 Telephone Consumer Protection Act.
He alleged that Facebook’s program of sending text messages regarding suspicious login attempts is the equivalent of an “autodialer,” which is “equipment with the capacity both ‘to store or produce telephone numbers to be called, using a random or sequential number generator,’ and to dial those numbers.”
Duguid lost in the trial court but then appealed his case to the 9th U.S. Circuit Court of Appeals, where he won. Facebook appealed; then appealed to the Supreme Court.
Justice Sonia Sotomayor, writing for a unanimous court, was having none of Duguid’s argument. The court concluded that Facebook’s system of texting about suspicious login attempts did not amount to using a random or sequential number generator, which Sotomayor said was required to fall within the purview of the federal law.
She concluded, “Expanding the definition of an autodialer to encompass any equipment that merely stores and dials telephone numbers would take a chainsaw to these nuanced problems when Congress meant to use a scalpel.” This was more or less Supreme Court speak for, “Calm down, Duguid. We know you didn’t like the text messages, but let’s not blow up this federal statute to prohibit conduct it wasn’t intended to conclude.” The practical effect of this ruling, unfortunately for the Duguids of this world, is that you’re likely to get more text messages. The practical effect of this ruling, unfortunately for the Duguids of this world, is that you’re likely to get more text messages. Few companies and political campaigns who want to contact you use the type of random or sequential lists that are now the main type of robocalls prohibited under the federal law. This means many more private companies and political campaigns will now be able to call or text your cellular phone without first obtaining permission. But the sure result of this decision is that people will start lobbying Congress to update the federal law to prohibit the kind of automated calls that companies and political campaigns actually make. Once again, technology appears to have moved faster than the law, which desperately needs to play a bit of catch-up to protect us from a coming avalanche of unwanted texts. The days of landlines and companies using random or sequential number generators are apparently gone. But the days of receiving more unwanted text messages are just beginning. Is that your blood pressure rising?
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
