Are you a criminal? Have you made telephone calls or sent texts that violated federal law?

You probably didn’t even know that you were violating federal law when you made a call or sent a text on your smartphone to another cellphone, but according to the Federal Communications Commission, you probably were. Under the Telephone Consumer Protection Act of 1991, it is a violation of federal law to use a “robo-dialer” (technically an “automatic telephone dialing system” or ATDS) to call a cellphone number except in a few limited circumstances. 47 U.S.C. § 227(b)(1)(A). A robo-dialer is defined as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”  47 U.S.C. § 227(a)(1). The Federal Communications Commission decided that, in an effort to be sure that telemarketers could not call cellphones, any equipment with those two capabilities would be considered a robo-dialer, even if the equipment wasn’t being used as a robo-dialer.

Have you looked at your smartphone recently? I bet it has a “contacts” function which stores numbers and can dial them.

So did you, some time in the past and probably without knowing,  actually use a “robo-dialer” ATDS to call or text a cellphone? The FCC thinks you probably did.

Fortunately, a three-judge panel of the D.C. Circuit, led by Judge Sri Srinivasan, widely-thought to have been a top contender for a Supreme Court seat in a Hillary Clinton administration, said: “Wut?”

Here, the Commission adopted an expansive interpretation of “capacity” having the apparent effect of embracing any and all smartphones: the device routinely used
by the vast majority of citizens to make calls and send messages (and for many people, the sole phone equipment they own). It is undisputed that essentially any smartphone, with the addition of software, can gain the statutorily enumerated features of an autodialer and thus function as an ATDS. The Commission in its ruling did not question the observation of a dissenting Commissioner that “[i]t’s trivial to download an app, update software, or write a few lines of code that would modify a phone to dial random or sequential numbers.” 2015 Declaratory Ruling, 30 FCC Rcd. at 8075 (Comm’r Pai, dissenting). The Commission itself noted that “[d]ialing options” are now “available via smartphone apps” that enable “[c]alling and texting consumers en masse.” Id. at 7970 ¶ 7. …

If every smartphone qualifies as an ATDS, the statute’s restrictions on autodialer calls assume an eyepopping sweep. Recall that the statute generally bars the use
of an ATDS to make any call (or send any text message) without prior express consent, and tags each violation with a minimum $500 penalty in damages for each individual recipient of each prohibited call or message. The reach of the statute becomes especially pronounced upon recognizing that, under the Commission’s approach, an uninvited call or message from a smartphone violates the statute even if autodialer features were not used to make the call or send the message. Id. at 7976 ¶ 19 n.70. …

Imagine, for instance, that a person wishes to send an invitation for a social gathering to a person she recently met for the first time. If she lacks prior express consent to send the invitation, and if she obtains the acquaintance’s cell phone
number from a mutual friend, she ostensibly commits a violation of federal law by calling or sending a text message from her smartphone to extend the invitation. See 2015 Declaratory Ruling, 30 FCC Rcd. at 8076 (Comm’r Pai, dissenting). And if she sends a group message inviting ten people to the gathering, again without securing prior express consent from any of the recipients, she not only would have
infringed the TCPA ten distinct times but would also face a minimum damages recovery against her of $5,000.

Those sorts of anomalous outcomes are bottomed in an unreasonable, and impermissible, interpretation of the statute’s reach. The TCPA cannot reasonably be read to render every smartphone an ATDS subject to the Act’s restrictions, such that every smartphone user violates federal law whenever she makes a call or sends a text message without advance consent. …

It is untenable to construe the term “capacity” in the statutory definition of an ATDS in a manner that brings within the definition’s fold the most ubiquitous type of phone equipment known, used countless times each day for routine communications by the vast majority of people in the country. It cannot be the case that every uninvited communication from a smartphone infringes federal law, and that nearly every American is a TCPA-violator-in-waiting, if not a violator-in-fact.

Actually, this kind of legislative and regulatory over-reach happens all the time in today’s rapidly-advancing technology. The TCPA started out with a noble idea: protect consumers from too many junk phone calls, especially with cellphones where, in 1991, consumers paid dearly for every second of airtime their phones were used. That, in fact, was the rationale for the government’s ability to limit people’s speech: if people were paying for the incoming phone call, then it could stop the phone calls that were made without the recipient’s consent. The First Amendment does not stop government from limiting speech that is financially injurious.

But technology and society relentlessly move on, even if statutes and government agencies do not. It wasn’t just telemarketers who were silenced by the TCPA limit on speech. It was also political campaigns, health care providers and others. Gradually a few exceptions, as for health care information, calls from schools about closures, and government callers, crept into the TCPA.

But like the monster in a horror movie who is resurrected to scare again, everyone who owned a cellphone was still subject to the 1991 definition of a robo-dialer. Until March 16, 2018, when the D.C. Circuit shed a bit of light into an increasingly-dim room.

Many people will see this as a logical – almost inevitable – conclusion in today’s connected world. And this is a very limited decision, not touching the free speech issues involved in government regulation, but going off only on statutory interpretation. That restraint is  usually welcome when judges find statutory grounds on which to rule before going to constitutional ones. But here Judge Srinivasan missed an important boat:

There is a bigger message here: when government sets its hand against private speech, even for the most popular or logical reasons, that hand better not be dead. A living hand can move with the passage of time, but a dead hand just ends up strangling an unintended and unexpected victim. Unfortunately, neither legislators nor regulators are particularly foresighted, farseeing or flexible, and rarely do government speech limitations, no matter how hotly promoted, govern so surgically precisely that they only touch the intended targets.

In other words, the speech protection of the First Amendment is often most important when the cause of the moment burns the brightest. For it is caution and restraint that protects the unimagined and unexpected future, even in the face of claims of immediate existential threat. There are a very few exceptions to the First Amendment (such as “fighting words” or other sources of imminent injury), but in almost every other case, the right response to “dangerous” or “annoying” speech is not to limit it, but to counter it with more and better speech.

Maybe now you can use that smartphone to call a few friends and let them know. … Unless the FCC appeals its loss at the D.C. Circuit.

 

We should be happy that the U.S. Court of Appeals for the Fourth Circuit took our advice in its latest decision enjoining the Trump Administration’s “travel ban” Executive Orders. After all, as the Public Policy Legal Institute and the Institute for Free Speech (formerly called the Center for Competitive Politics) requested last year, the Supreme Court instructed the Fourth Circuit not to restrain candidates’ campaign-trail speech, and the Fourth Circuit said in its February 15 decision: “we need not and thus do not rely on pre-election statements in assessing the constitutionality of the Proclamation.” Slip op., 46.

Except … despite that declaration, they did.

They didn’t themselves cite the candidate’s statements, except in a footnote. But the District Court below used campaign-trail quotes as the basis for its holding against the travel ban, and then the Fourth Circuit cited that holding without qualification or correction. Ironically, the Fourth Circuit was doing the same thing it condemned the Trump Administration for doing: although the Fourth Circuit’s official action was facially neutral, it used improper prior statements to justify its final action.

Background: The Fourth Circuit had enjoined the Trump Administration’s “travel ban” Executive Order as violating the Establishment Clause of the U.S. Constitution, relying in large part on campaign-trail quotes from then-candidate Donald Trump. The Fourth Circuit, doubling down on its disregard for the First Amendment, said:

To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint.
Int’l Refugee Assistance Project, et al. v. Trump, et al., 857 F.3d 554, 600 (4th Cir. 2017).

PPLI and IFS filed briefs with the Supreme Court asking the Court to first review and then, after the Court decided to review the case, to reverse or vacate the Fourth Circuit’s “welcome restraint” opinion. While not taking a position on the “travel ban” itself, the PPLI/IFS briefs pointed out that political campaign speech enjoys the highest level of First Amendment protection, that the Supreme Court has long held that free and full campaign speech is “essential” to democracy (not least because the people should be able to hear a candidate’s true feelings and positions without regard to political correctness), and that the Court has never permitted a court to silence campaign speech on religious grounds or any other “free-floating test for First Amendment coverage … [based on] an ad hoc balancing of relative social costs and benefits.”

The Supreme Court subsequently vacated the problematic Fourth Circuit’s “welcome restraint” opinion, with a rare citation to earlier cases saying that lower courts should not cite the vacated opinion. And on its face, the latest Fourth Circuit opinion appears to respect the Supreme Court’s vacating of its earlier opinion. But let’s let the dissenting Fourth Circuit judges explain the problem:

[R]ather than determining from the face of the Proclamation whether the reasons given for the entry restrictions were legitimate and bona fide, which would preclude a “look behind” it for extrinsic evidence of bad faith, the court looked behind it first to conclude that the Proclamation was not bona fide. With this twist of Mandel, the court then reviewed candidate Trump’s campaign statements …

Slip Op., 244.

[The Plaintiffs] urged the district court to “look behind” the Proclamation, which is concededly neutral on its face, and to rely on the same statements of candidate Trump that provided the basis for the majority’s earlier decision. The district court ruled as the plaintiffs urged …

Slip Op., 261.

Why was that bad?

The [Supreme] Court’s reluctance to consider statements made in the course of campaigning derives from good sense and a recognition of the pitfalls that would accompany such an inquiry.

Because of their nature, campaign statements and other similar statements, including tweets, are unbounded resources by which to find intent of various kinds. They are often short-hand for larger ideas; they are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise. And they are often susceptible to multiple interpretations, depending on the outlook of the recipient. A court applying this new rule would thus have free reign to select whichever expression of an official’s developing ideas best supports its desired conclusion.

Moreover, opening the door to the use of campaign-trail statements and  similar musings or tweets to inform the text of later executive orders has no rational limit. If a court, dredging through the myriad remarks of an officeholder, fails to find material to produce the desired outcome, what stops it from probing deeper to find statements from a previous campaign, or from a previous business conference, or from college?

And how would use of such statements take into account intervening acts, events, and influences? When a candidate wins the election to the presidency, he takes an oath of office to abide by the Constitution and the laws of the Nation. And he appoints officers of the government and retains advisors, usually specialized in their field. Is there not the possibility that a candidate might have different intentions than a President in office? And after taking office, a President faces external events that may prompt new approaches altogether. How would a court assess the effect of these intervening events on presidential intent without conducting “judicial psychoanalysis”?

At bottom, the danger of this new rule is that it will enable a court to justify its decision to strike down any executive action with which it disagrees. It need only find one statement that contradicts the official reasons given for a subsequent executive action and thereby pronounce that the official reasons were a pretext.

Moreover, the unbounded nature of the new rule will leave the President and his administration in an untenable position for future action. It is undeniable that President Trump will continue to need to engage in foreign policy regarding majority-Muslim nations, including those designated in the Proclamation. Yet, the district court’s opinion presupposes that the Proclamation is tainted by prior campaign-trail statements and prior executive orders, clearly indicating that future actions might also be subject to the same challenges made today.

Finally, the new rule would by itself chill political speech directed at voters seeking to make their election decision. It is hard to imagine a greater or more direct burden on campaign speech than the knowledge that any statement made might be used later to support the inference of some nefarious intent when official actions are inevitably subjected to legal challenges.

Slip Op., 264-66.

Pretty much what PPLI and IFS told the Supreme Court last year.

We also warned the Supreme Court that it needed to speak strongly about the need to protect free speech, even politically incorrect free speech about religion. Otherwise the lower courts would find ways to continue using the Fourth Circuit’s vacated “welcome restraint” theory to justify chilling campaign speech. And the District Court in this case did just that.

And the Fourth Circuit, despite no longer using its “welcome restraint” language, did too. So, no, we’re not happy.

The Public Policy Legal Institute began in April 2017, and, for a small, all-volunteer  organization, had a pretty busy first year:

Litigation: PPLI filed two amici curiae briefs in the Supreme Court of the United States, both in No. 16-1436, Trump v. IRAP. The first requested the Court to grant certiorari in the case in order to review the opinion of the U.S. Court of Appeals for the Fourth Circuit and that opinion’s “welcome restraint” legal theory, which could threaten the freedom of political candidates to speak; the Court did grant certiorari in that case. The Bureau of National Affairs, a legal journal, reported on and analyzed the PPLI cert petition. The second requested the Court to vacate the Fourth Circuit’s decision and to speak strongly against the “welcome restraint” legal theory; the Court vacated the Fourth Circuit’s decision with an unusual reference to U.S. v. Munsingwear, which emphasized that the Fourth Circuit’s decision should not be cited in future litigation by lower courts. Both briefs were filed in conjunction with the Institute for Free Speech, another charity working to protect advocacy and free expression.

Government Regulation: PPLI filed comments with the Internal Revenue Service concerning the proposed Form 1024-A. The comments noted that the proposed form did not respond to Congressional concerns clearly enunciated in the legislative history of Internal Revenue Code § 506, especially those related to the amount of work engaged in by the Service during processing of applications for determination letters by section 501(c)(4) organizations. The comments propose that the Service adjust its efforts to implement section 506 by shifting resources to educational activities, and utilize the Service’s recent experience with “self-declaring” organizations and applications and with analytics to deploy available resources.

Public Education: From April to December, PPLI published 39 posts on its blog Vox PPLI. Topics included:

• analyses of the new tax law
• important litigation
• the IRS’s targeting of organizations based on names and perceived ideology
• free speech and advocacy
• new IRS forms and regulatory efforts.

One post which received significant attention in the legal and trade media was the October 6, 2017, post on a Treasury Inspector General for Tax Administration’s September 28 report noting that liberal organizations received scrutiny by the IRS during the “scandal” period. News media portrayed the report as justifying the IRS’s targeting actions. The PPLI post noted that the treatment of liberal organizations was not news, since the Washington Post, congressional committees and many others had already reported on this treatment shortly after the scandal became public. The post also explained the difference between the treatment of liberal organizations (under an older established process, known as Touch-and-Go or “TAG,” with procedural and policy safeguards) and the later, rogue treatment of mostly conservative organizations (under what was known as “Be On the Look Out” or “BOLO”) without those safeguards. Former Deputy Assistant Attorney General for Civil Rights Justin Levitt called the post “an interesting primer” on the differences between treatment afforded the two types of groups.

 

Mark Fitzgibbons, a member of the First Tuesday Lunch Group, has an article in yesterday’s Daily Caller about how governments engage, probably unintentionally, in “doxxing.” For those not entirely current on slang, “dox” means

verb (used with or without object), doxed or doxxed, doxing or doxxing.

1. Slang. to publish the private personal information of (another person) or reveal the identity of (an online poster) without the consent of that individual: The professor was doxed by a bitter student who failed her class. Several players doxed the programmer because the final version of the game disappointed them.

Disclosure is often cited as an unalloyed good, as in Justice Louis Brandeis’ famous formulation: “”Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” But remember that Brandeis also said: “I abhor averages. I like the individual case. A man may have six meals one day and none the next, making an average of three meals per day, but that is not a good way to live.”

Mark’s piece shows how government disclosures lead inevitably to doxxing; that is, after all, the point of government-mandated disclosure — to force people to reveal publicly what they would generally prefer to keep private. We live in a far different world today from when many of these disclosure requirements were originally hatched. Today, what was once a shield against miscreants has become a sword used by them.

Like any powerful tool, disclosure can be a force for good. Its use should not be mindless. And those who are subject to it must take special precautions to defend themselves.