9 ms·

Supreme Court sides with Facebook in narrowing the federal robocall ban

100 points by protomyth 6y ago

Causality1 6y ago
Consider the difference between the way the law and the platform treats transmission of spam calls over the telephone and pirated content over YouTube. You can tell which one is the concern of moneyed interests.
BitwiseFool 6y ago
Sounds like a straightforward case of congress not realizing how software would change the nature of robocalls 30 years after the law was passed. Looks like Congress will have to amend the law and this decision should not be seen as some sort of constitutional right to spam people.
sparker72678 6y ago
The practical consequences sorta suck, but the concept of a narrow reading of the law, leaning on the legislature to actually, you know, legislate — we could use more of that.
- jfengel 6y ago
  I'd have more sympathy for that if the legislature hadn't been designed to not legislate. 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.
  - linuxftw 6y ago
    IMO, still too easily to legislate. I would require at least 3/4ths of both houses for all bills and give governors a 51% veto power. The US constitution was supposed to limit the power of the federal government. It has failed to do that in a meaningful way.
    - zacharycohn 6y ago
      The Articles of Confederation were designed to give limited power to a weak federal government and more power to stronger state governments. It was a disaster, then we tried again - the other way - with the Constitution. The Constitution puts limits on the power of government, the goal isn't a limited federal government.
      - willcipriano 6y ago
        Limited government was certainly Jeffersons aim: "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."
        jfengel 6y ago
        We should have gone to Jefferson and Washington's farms and taken a vote on what kinds of changes were necessary.
        willcipriano 6y ago
        If you think about that a bit more deeply, if Washington and Jefferson had been fans of a strong federal government slavery would've been a federal policy as opposed to a per state policy and likely would've been much more difficult to end as the northern states would've contained slave owners as opposed to only the southern states.
sxp 6y ago
How did this even get to the Supreme Court? This was a 9-0 decision because it was such a clear cut case. > 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.
- NovemberWhiskey 6y ago
  I agree entirely; this is a dumb case. If decided for Duguid, here's a list of things that would probably have become illegal for businesses to do under TCPA: 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!
  - kmonsen 6y ago
    2) and 3) would probably always be illegal since phone numbers are recycled and you can never know when that happens. I guess it’s fairly likely that is what happened in this case? 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.
    - duskwuff 6y ago
      > you can never know when that happens There's work being done to address that: https://www.fcc.gov/reassigned-numbers-database https://www.fcc.gov/reassigned-numbers-database https://www.reassigned.us/ https://www.reassigned.us/
NovemberWhiskey 6y ago
Based on my reading of the decision, this doesn't change anything to do with robocalls, as I understand the term: i.e. an unsolicited, automated call where you hear a recording when you pick up. 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".
lukeschlather 6y ago
> Of most import, it means that the act does not ban the use of now-dominant predictive dialing technology that can call or text targeted customers 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.)
- nulbyte 6y ago
  Predictive dialing refers to a system capable of placing calls that are likely to be answered by the called party at a time when the calling party is available. Under this ruling, such a system may or may not be an ATDS; the predictive capability is irrelevant. 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).
anothernewdude 6y ago
> the justices made clear that it’s the job of Congress, not the court, to update statutes in the face of technological change. Uh oh, lobbyists just came in their pants.
- dang 6y ago
  Please don't do this here.
  - anothernewdude 6y ago
    Apologies, forgot this was a libertarian echo chamber.
    - dang 6y ago
      You need to do better than that if you want to keep posting here. Comments like the GP are unacceptable because they're cheap internet dross, regardless of what politics you're battling for or against. If you'd please review https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html and stick to the rules, we'd appreciate it. Perceptions like that are notoriously in the eye of the beholder. The other side sees HN as exactly the opposite sort of "echo chamber": https://hn.algolia.com/?dateRange=all&page=0&prefix=true&query=by%3Adang%20sjw&sort=byDate&type=story&type=comment https://hn.algolia.com/?dateRange=all&page=0&prefix=true&que.... Neither side is assessing accurately—they're simply perceiving their own bias (or rather the inverted image of it) and calling that the entire community.
Feneric 6y ago
I can understand the ruling, but it sounds like it also means it's now pretty trivial to bypass restrictions by getting a massive list of numbers to dial from a third party.
ErikVandeWater 6y ago
2 Questions: 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?
alwaysdoit 6y ago
> To the extent that interpretive canons accurately describe how the English language is generally used, they are useful tools. … [But w]hen this Court describes canons as rules or quotes canons while omitting their caveats and limitations, we only encourage the lower courts to relegate statutory interpretation to a series of if-then computations. No reasonable reader interprets texts that way. [Alito in concurrence] Why would it be horrible if there were a well-defined grammar for legal texts?

100 points by protomyth 6y ago

Consider the difference between the way the law and the platform treats transmission of spam calls over the telephone and pirated content over YouTube. You can tell which one is the concern of moneyed interests.

BitwiseFool 6y ago

Sounds like a straightforward case of congress not realizing how software would change the nature of robocalls 30 years after the law was passed. Looks like Congress will have to amend the law and this decision should not be seen as some sort of constitutional right to spam people.

sparker72678 6y ago

The practical consequences sorta suck, but the concept of a narrow reading of the law, leaning on the legislature to actually, you know, legislate — we could use more of that.

jfengel 6y ago
I'd have more sympathy for that if the legislature hadn't been designed to not legislate. 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.
- linuxftw 6y ago
  IMO, still too easily to legislate. I would require at least 3/4ths of both houses for all bills and give governors a 51% veto power. The US constitution was supposed to limit the power of the federal government. It has failed to do that in a meaningful way.
  - zacharycohn 6y ago
    The Articles of Confederation were designed to give limited power to a weak federal government and more power to stronger state governments. It was a disaster, then we tried again - the other way - with the Constitution. The Constitution puts limits on the power of government, the goal isn't a limited federal government.
    - willcipriano 6y ago
      Limited government was certainly Jeffersons aim: "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."
      - jfengel 6y ago
        We should have gone to Jefferson and Washington's farms and taken a vote on what kinds of changes were necessary.
        willcipriano 6y ago
        If you think about that a bit more deeply, if Washington and Jefferson had been fans of a strong federal government slavery would've been a federal policy as opposed to a per state policy and likely would've been much more difficult to end as the northern states would've contained slave owners as opposed to only the southern states.

sxp 6y ago

How did this even get to the Supreme Court? This was a 9-0 decision because it was such a clear cut case. > 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.

NovemberWhiskey 6y ago
I agree entirely; this is a dumb case. If decided for Duguid, here's a list of things that would probably have become illegal for businesses to do under TCPA: 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!
- kmonsen 6y ago
  2) and 3) would probably always be illegal since phone numbers are recycled and you can never know when that happens. I guess it’s fairly likely that is what happened in this case? 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.
  - duskwuff 6y ago
    > you can never know when that happens There's work being done to address that: https://www.fcc.gov/reassigned-numbers-database https://www.fcc.gov/reassigned-numbers-database https://www.reassigned.us/ https://www.reassigned.us/

NovemberWhiskey 6y ago

Based on my reading of the decision, this doesn't change anything to do with robocalls, as I understand the term: i.e. an unsolicited, automated call where you hear a recording when you pick up. 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".

lukeschlather 6y ago

> Of most import, it means that the act does not ban the use of now-dominant predictive dialing technology that can call or text targeted customers 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.)

nulbyte 6y ago
Predictive dialing refers to a system capable of placing calls that are likely to be answered by the called party at a time when the calling party is available. Under this ruling, such a system may or may not be an ATDS; the predictive capability is irrelevant. 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).

anothernewdude 6y ago

> the justices made clear that it’s the job of Congress, not the court, to update statutes in the face of technological change. Uh oh, lobbyists just came in their pants.

dang 6y ago
Please don't do this here.
- anothernewdude 6y ago
  Apologies, forgot this was a libertarian echo chamber.
  - dang 6y ago
    You need to do better than that if you want to keep posting here. Comments like the GP are unacceptable because they're cheap internet dross, regardless of what politics you're battling for or against. If you'd please review https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html and stick to the rules, we'd appreciate it. Perceptions like that are notoriously in the eye of the beholder. The other side sees HN as exactly the opposite sort of "echo chamber": https://hn.algolia.com/?dateRange=all&page=0&prefix=true&query=by%3Adang%20sjw&sort=byDate&type=story&type=comment https://hn.algolia.com/?dateRange=all&page=0&prefix=true&que.... Neither side is assessing accurately—they're simply perceiving their own bias (or rather the inverted image of it) and calling that the entire community.

Feneric 6y ago

I can understand the ruling, but it sounds like it also means it's now pretty trivial to bypass restrictions by getting a massive list of numbers to dial from a third party.

ErikVandeWater 6y ago

2 Questions: 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?

alwaysdoit 6y ago

> To the extent that interpretive canons accurately describe how the English language is generally used, they are useful tools. … [But w]hen this Court describes canons as rules or quotes canons while omitting their caveats and limitations, we only encourage the lower courts to relegate statutory interpretation to a series of if-then computations. No reasonable reader interprets texts that way. [Alito in concurrence] Why would it be horrible if there were a well-defined grammar for legal texts?