Totally random

Thanks Facebook! And Supreme Court! And legislators who did not predict the Internet! Also, 7 other things worth your time.

Get ready for more robocalls! We’ll have Facebook to thank, and also the U.S. Supreme Court.

Depsite the fact that I’m a lawyer (non-practicing, but still), it’s surprising the degree to which far-reaching court decisions sometimes come out, and I find I’ve never heard a word about the case before.

That’s what happened Friday, when the Supremes voted unanimously in a case called Facebook vs. Duguid.

Noah Duguid has never had a Facebook account, but he kept getting unsolicited text messages from Facebook telling him that someone had tried to log in to his (nonexistent) account.

So, Duguid sued Facebook under the Telephone Consumer Protection Act of 1991, which bans most unsolicited robocalls, and provides for up to $1,500 per violation. He also sought to certify his case as a class action.

Facebook’s defense, if I can summarize, was twofold.

  • First, it said that the whole thing was an excusable error, not spam, in that somebody else who had Duguid’s phone number before him had opted-in with Facebook. That meant there was no way for Facebook to know Duguid now had the number.

  • Second, it dug into the technical weeds of the 1991 law, which obviously predated the consumer Internet, and claimed that the automatic texts it sent Duguid were not produced from an “automatic telephone dialing system” that stores or produces calls using “a random or sequential number generator,” as the law envisioned.

Finding in favor of Facebook, Justice Sonia Sotomayor said Congress had meant to:

“target a unique type of telemarketing equipment that risks dialing emergency lines randomly or tying up all the sequentially numbered lines at a single entity.

Expanding the definition of an auto-dialer to encompass any equipment that merely stores and dials telephone numbers would take a chain saw to these nuanced problems when Congress meant to use a scalpel.”

I don’t want to bog us down here, but the decision also goes on at length debating about the placement of a single comma in the statute. Fun stuff, the law.

In any event, Facebook moves forward. Duguid doesn’t get his class action. Life goes on.

Only, as Kelly McLaughlin , Walt Hickey, and Paige Leskin wrote together at Business Insider, this decision is a big win for telemarketers, and opens the door for a lot more robocalls and texts.

Now, anything other than a random or sequentially dialed robocall system might now be allowed under this law.

Granted, there are other laws. And it’s also possible that companies would have to be able to point to at least one sort of “consent zero” on your number.

You or somebody who had your number before you, would have to have said sometime that companies could use it to contact you. But, you can imagine: fine print about how companies can “share your information with partners for other special offers” and the like. Who even remembers?

Net result? It seems quite likely that, as Margot Freeman Saunders, senior counsel at the National Consumer Law Center, told Insider previously, we’re all going to get “a tsunami of unwanted texts.”

To which, I can only add: “Hello, this is Lenny.”

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To those who celebrate, Happy Easter! To everyone else, have a great weekend. See you Monday.


7 other things worth your time

  • Correction: I wrote incorrectly yesterday that if you collected unemployment last year, and have already filed your 2020 taxes, you’d need to file an amended return to take advantage of a new tax break. It turns out the IRS says that’s not necessary, and it will automatically recalculate returns. Thanks to the dozen or so readers who pointed this out. The mistake was based on a WSJ article that contained it; they’ve now posted a correction, too. (WSJ)

  • Pfizer says a new study shows its two-dose shot gives people protection from COVID-19 for at least six months. (Business Insider)

  • Many of Microsoft’s services were offline for hours Thursday after an outage in the middle of the U.S. west coast working afternoon. “Besides its homepage, Microsoft’s Xbox and Office services went down, log-in pages didn’t load, and the company’s status pages were also knocked offline by the outage. Worse, Microsoft’s cloud service Azure also fell offline, causing outages to any sites and services that rely on it.” (TechCrunch)

  • Cameo, which I wrote about recently, is your latest unicorn, now valued at $1 billion, after another round of financing. (WSJ, $)

  • Amtrak released a new map showing all the service it wants to add if it gets $80 billion from President Biden’s new infrastructure plan. (Gizmodo)

  • While auto sales as a whole have suffered from factory shutdowns and other disruptions due to the pandemic, “sales of super-expensive cars, like Ferraris, Bentleys and Lamborghinis, finished 2020 at a blistering pace.” (CNN)

  • SpaceX says the Crew Dragon capsule that will fly four civilian astronauts to space this year will have a glass dome at the top to give space tourists a 360-degree view of the cosmos. (The Verge)


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