[HN Gopher] Supreme Court sides with Facebook in narrowing the f...
___________________________________________________________________
Supreme Court sides with Facebook in narrowing the federal robocall
ban
Author : protomyth
Score : 76 points
Date : 2021-04-02 14:18 UTC (8 hours ago)
(HTM) web link (www.scotusblog.com)
(TXT) w3m dump (www.scotusblog.com)
| ErikVandeWater wrote:
| 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?
| anothernewdude wrote:
| > 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.
| sxp wrote:
| 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 wrote:
| 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!
| Der_Einzige wrote:
| Two factor auth is so bad over SMS for security that id love
| to see it banned (even for the wrong reasons).
|
| The other two are fine casualties for a world with far less
| autodialing. Call centers probably ought not exist.
| toast0 wrote:
| > 2) sending a one-time password over SMS, unless you had
| already validated that the telephone number belonged to your
| customer
|
| 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.
| connorproctor wrote:
| Rather than texting the consumer a security code and having
| them enter it in the browser, you could display a security
| code in the browser and have them text it to your automated
| system.
|
| But there's still no way to know if that number later gets
| released to another person.
| toast0 wrote:
| As the sibling comment says, spoofing sender ID or caller
| ID is relatively easy. You can't trust it, outside of
| some very narrow cases (although, shaken/stir may change
| that).
|
| 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.
| DangitBobby wrote:
| If they prompoted to receive a code during sign-up it
| would make the system immune to a person accidentally
| entering the wrong number. Only malicious entry would
| remain, which I suspect the company would ultimately not
| be liable for. So I believe it would actually be a better
| solution if the goal is to prevent robotexting people who
| didn't consent to it.
| toast0 wrote:
| So I think you're proposing, enter your number, get a
| code, send a text to a special number with that code, get
| a text reply and enter that. Then the service has done
| their best job of validating the number before they
| validated it.
|
| 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.
| anticristi wrote:
| AFAIU, caller ID can be faked. Getting an SMS from a
| phone number does not demonstrate anything. Probably this
| is why the send factor is received, not sent.
| privacylawthrow wrote:
| These were already violations of the TCPA in the 9th Circuit
| under the 9th Circuit's previous ruling in _Marks_ where the
| court found that an autodialer is any equipment that dials a
| number from a stored list.
|
| _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.
| NovemberWhiskey wrote:
| Having now read _Marks_ it now makes a whole lot more sense
| why this is in the Supreme Court; the Ninth Circuit seems
| to have gone off the deep end with that decision.
| andjd wrote:
| >Marks was widely regarded as a terrible decision because
| it made no sense at the time.
|
| 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.
| kmonsen wrote:
| 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.
| nulbyte wrote:
| Regarding the first two, it's not just a matter of an
| existing relationship, but also consent. As to the latter,
| this was the effect, and likely will continue to be, until
| companies decide to implement changes in response to this
| ruling. Especially larger corporations have been capturing
| consent and even relying on third-parties to manually dial
| numbers, because this was the prevailing interpretation until
| the Supreme Court reintroduced common sense.
| NovemberWhiskey wrote:
| I don't see the relevance of consent: you can't consent on
| behalf of a third party.
|
| 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.
| Traster wrote:
| Reminds me of a kafkaesque situation I had a few years back. I
| was getting text messages from Barclays about my account (I
| don't have an account). I contacted them telling them to desist
| but because I'm not a customer I can't actually tell them to
| change details on an account that isn't mine.
| an_ko wrote:
| I keep getting email from PayPal about their terms and
| conditions changing. I have a PayPal account, which I can't
| delete, because to delete it, I'd have to log in, but when I
| enter my details (which I know are correct; I use a password
| manager), I get a generic error message. Trying the password
| recovery procedure with my username gives me the same generic
| error message. I've emailed customer support twice, but they
| don't seem to be staffed by humans, because both times I got
| the same "you should use the password recovery procedure"
| template response, even though I explained it doesn't work.
|
| I've created a filter to send them to trash, but it just
| feels so very sad.
| chiefalchemist wrote:
| Perhaps. But when a phone # gets entered then FB should
| authenticate it on the spot. Then someone else can't use your
| number nefariously.
|
| 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?
| flyingfences wrote:
| > The offender here was whoever put Duguid's phone number into
| FB's database.
|
| 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.
| whoopdedo wrote:
| > 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.
|
| 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.
| nonameiguess wrote:
| I once had an internal number on a corporate system that, for
| some reason, was assigned to multiple desks at the same time.
| It took a while for us to figure out that anyone who called
| the number just called both of us simultaneously and only got
| to talk to whoever happened to answer first.
| throwawaysea wrote:
| I might not understand the terminology or process here, but
| doesn't SCOTUS often refuse to hear cases that aren't worth
| their time? Last year they chose not to hear a number of second
| amendment cases where it seemed like there was much more on the
| line and they would have overturned lower court rulings, so I'm
| surprised they chose to spend time on this one, which seems
| uncontroversial given the 9-0 vote.
| nulbyte wrote:
| The effect of declining a case is to leave the lower court's
| decision in place. However, the lower court sided with
| Duguid, not Facebook. Here, the Supreme Court overturned that
| decision.
| xxpor wrote:
| Were they resolving a circuit split? That's usually the way
| "silly" cases get up there.
| my_username_is_ wrote:
| That does seem to be the case here.
|
| >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.
| tick_tock_tick wrote:
| It came to them from a weird Ninth Circuit ruling. The Ninth
| Circuit is pretty much the poster child for weird ruling and
| judicial overreach. I wish there was more repercussions for
| it's behavior maybe for some of these cases where it is such a
| clear 9-0 kind of case the Supreme Court should look into if
| the lower justices are fulfilling there duty.
| Feneric wrote:
| 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.
| Causality1 wrote:
| 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 wrote:
| 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.
| NovemberWhiskey wrote:
| 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".
| sparker72678 wrote:
| 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 wrote:
| 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.
| aksss wrote:
| > legislation is practically impossible
|
| 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.
| jfengel wrote:
| Unfortunately, the nation hasn't been in a mood to
| compromise since before social media. When was the last
| time that a President wasn't actively hated by the
| opposition? Not merely disliked or opposed, but actively
| considered incompetent and detrimental to the nation? The
| last time people talked about a "honeymoon period"?
|
| 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.
| Spooky23 wrote:
| Nixon broke a lot of stuff
| aksss wrote:
| Yeah, never in my lifetime. I remember a college prof in
| the late nineties telling me she though Reagan was the
| worst president in the country's history. I remember
| thinking at the time, "jeez, that's a bit much for a
| variety of reasons". At the time though there was as much
| vitriol against Clinton.
|
| 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.
| jfengel wrote:
| I definitely wish people thought more locally -- really
| locally, like their towns. I don't think it's a
| coincidence that the time frame I outlined above is the
| same as the emergence of 24 hour news, which rapidly
| became 24 hour infotainment -- the news as a big
| Manichean football match. I believe that pushed people
| into thinking about Big Issues and lost any focus on
| things that actually matter in their daily lives.
|
| 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.
| AnthonyMouse wrote:
| The real problem with this is federal preemption. What
| happens at the federal level isn't just that they don't
| do anything good, it's that they actively do something
| bad or ineffective, but in so doing wade into the swamp
| and throw out the ability of the states to do anything
| better because of preemption.
|
| 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.
| clairity wrote:
| > "...but rather to note that it's the system of checks and
| balances that encourages that partisanship."
|
| 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).
| jfengel wrote:
| Absolutely.
|
| 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."
| linuxftw wrote:
| 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.
| clairity wrote:
| > "...give governors a 51% veto power."
|
| 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).
| zacharycohn wrote:
| 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.
| AnthonyMouse wrote:
| > 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 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.
| zacharycohn wrote:
| And average education, health, and quality of life
| outcomes are significantly higher now.
| willcipriano wrote:
| 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 wrote:
| We should have gone to Jefferson and Washington's farms
| and taken a vote on what kinds of changes were necessary.
| willcipriano wrote:
| 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.
| lukeschlather wrote:
| > 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 wrote:
| 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).
___________________________________________________________________
(page generated 2021-04-02 23:00 UTC)