Telecommunications Policy

Facebook Has No First Amendment Right to Send Unauthorized Texts, Says Court

The company argued that it had a free-speech right to text users unauthorized birthday reminders.

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Mauro Grigollo Westend61/Newscom

"Today is Jim Stewart's birthday. Reply to post a wish on his Timeline or reply with 1 to post 'Happy Birthday!'" That's the text, from Facebook to Colin Brickman, that launched a legal battle between Brickman and the social-media giant.

You see, Brickman had opted out of receiving texts from Facebook via the platform's notification settings. In response to the unwanted birthday reminder, Brickman filed a class-action lawsuit against Facebook, representing "all individuals who received one or more Birthday Announcement Texts from [Facebook] to a cell phone through the use of an automated telephone dialing system at any time without their consent."

The suit, filed in the U.S. District Court for the Northern District of California, argues that Facebook's sending unauthorized text messages is a violation of the federal Telephone Communications Privacy Act (TCPA). "A valid TCPA claim requires plaintiff to allege (1) a defendant called a cellular telephone number; (2) using an automated telephone dialing system ('ATDS'); and (3) without the recipient's prior express consent," explains lawyer Jack Greiner in the Cincinnati Enquirer. "A text message is a 'call' within the meaning of the TCPA."

In its defense, Facebook alleged that the TCPA in unconstitutional. Citing the U.S. Supreme Court's 2015 decision in Reed v. Town of Gilbert, Facebook attorneys argued that the TCPA's allowed exceptions—for emergency communications and debt collectors—render it an umpermissable, content-based restriction on speech. But the judge, while agreeing that the TCPA's restrictions are content-based (and thus subject to strict scrutiny, legally speaking), found that the law passed constitutional muster nonetheless.

The case will go forward with Facebook defending its text messages on technical grounds; it argues that the texts were not automated because Brickman and others who received them had supplied Facebook with their phone numbers. But, for now, Facebook's argument that it has a First Amendment right to send people text messages against their will has been rejected.

The 9th U.S. Circuit Court of Appeals has twice found the TCPA to be constitutional in previous cases—Moser v. Federal Communications Commission (1995) and Campbell-Ewald v. Gomez (2016)—the Department of Justice pointed out in a memorandum in support of TCPA's constitutionality. In the latter case, the 9th Circuit rejected the idea that the government's interest with the law "only extends to the protection of residential privacy, and that therefore the statute is not narrowly tailored to the extent that it applies to cellular text messages."

"There is no evidence that the government's interest in privacy ends at home," ruled the 9th circuit in Campbell-Ewald. Furthermore, "to whatever extent the government's significant interest lies exclusively in residential privacy, the nature of cell phones renders the restriction of unsolicited text messaging all the more necessary to ensure that privacy."

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    1. Take the belt from around your neck and unclip some of those clothespins from your nipples and you’ll be fine.

      1. You assume he wants it to stop.

      2. I once met a guy with four inches long nipples. I will never be able to get that image out of my head.

        1. I once met a man from Nantucket!

    2. Good Alt Text at that!
      AND, in a post about texts. So meta.

    3. Take a bath. Dizziness is what everyone else experiences around you.

      1. That guy in the picture needs to take a bath. Ugh.

  1. Cash grab or legitimate grievance?

    new tech companies seem to be extremely vulnerable to this kind of suit as they operate on an act first, check later basis

    1. If he really did communicate to facebook “don’t text me,” and they did anyway, then legitimate grievance. Small, petty even, but legitimate.

      1. If he is paying for texts, then that small grievance can add up if they doing it for everyone on his friends list.

        1. Who pays for texts, anymore?

      2. It’s not petty when you multiply it by a billion subscribers. If you say you don’t want a text then you don’t want a text. There is no way to block the text without special effort. It’s not freedom of speech if you are forcing someone to listen to you. You can walk away from the crazies on campus. You can’t walk away from your cell phone, hence you are infringing on the cell phone users’ privacy after he explicitly told you do not call.

        1. You can walk away from Facebook.

    2. Sprint did something similar to me. Very legitimate grievance.

      And they paid the price. And then some.

  2. I understand the appeal of keeping in contact with people’s lives that you otherwise wouldn’t and of the narcissistic notion that other people really care about the activities of your daily life, but for me this is just another reason why the costs outweigh the benefits of facebook. I don’t want to be stalkable and all my information out for anyone to find and I definitely don’t want facebook to have total control of my info and media to use for whatever purposes it desires, including selling for advertising ( I knew a guy who had a picture of him and his son taken from facebook appear on the sides of rubber bins in the store). But I guess that’s why I’m a weirdo, tinfoil hat wearing libertarian.

    1. I’m about 6-8 months in without Facebook and I don’t miss it at all.

      1. Is there some magic “get me out” button? I heard it’s like dropping your cable provider.

        1. I simply logged out on all my devices.

    2. It’s fairly trivial to lock your shit down and to not provide them with anything of consequence.

      Of course, people don’t understand this, so they continue to willingly expose themselves..

      1. Yeah, give them your phone number?! Dumbass.

    3. Sadly, since everyone else you know is still plastering you all over their posts and pages, you are still owned by the book of faces.
      You can run, but you can’t hide.

      1. People like that are not your friends or people you should be friendly with; they are ignorant fools who don’t respect your privacy. Do not allow such people to be in your presence and certainly do not allow them to take photos of you. Wear a mask if you must go somewhere where someone may take a photo of you and then post it on Facebook. Clearly tell everyone that you are opposed to Facebook and do not want any of your information or photos uploaded there, and discard from your life anyone who does not comply

        What sucks even more than this Facebook problem, though, is that pictures on state IDs and driver’s licenses are being added to government facial recognition databases, all without your permission of course. The government can’t even be trusted to not maliciously abuse identification photos, so I hope idiots remember that the next time they say ‘But how could giving the government the power to do X possibly be abused!?’, but they probably won’t. Just because some random unintelligent person can’t fathom how the government will abuse a certain power doesn’t mean that it won’t do so, and in fact there are many people working for the government whose entire job it is to find ways to exploit people and their information, so they can often think of things no one else would.

    4. Avoiding facebook doesn’t make you a libertarian. I know plenty of libertarians on there, they just aren’t private people, nor do they feel superior because they choose to open up their lives to more or less public viewing. Facebook is a private company that they use by choice. Lots of people like me just use it as an easy way to keep in touch and share a few photos of the kids and family shit. Idgaf if anyone looks at them, it’s as much for me as a kind of diary, I’ve gone back to see what I was doing last year around this time, and found it mildly interesting. I just don’t put shit on there that looks bad to me as a professional .

    5. Nobody forces you to use Facebook.

  3. to whatever extent the government’s significant interest lies exclusively in residential privacy, the nature of cell phones renders the restriction of unsolicited text messaging all the more necessary to ensure that privacy

    Now, if the NSA wants information from the phone, however. . . .

  4. it argues that the texts were not automated because Brickman and others who received them had supplied Facebook with their phone numbers.

    lolwhut?

  5. Lawsuits are so old fashion, just declare Mark Zuckerberg to be a Nazi and punch him in the face

    1. +1 Antifa

  6. I am not sure about the constitutuonal implications, but if the man had opted out of being texted should not Facebook have a contractual obligation to honor that? If so, Facebook has no 1st Amendment right to not honor that obligation.

    1. “[…] if the man had opted out of being texted should not Facebook have a contractual obligation to honor that?”
      Only if it’s in their Terms of Service, which they can change at any time.

  7. I’m pretty ignorant of online social networking stuff. But why the hell would you give Facebook your phone number?

    1. Plenty of sites have an option for “I forgot my password, text it to me.” The idea being that it is more secure to do it that way than via e-mail.

      1. Plenty of sites have an option for “I forgot my password, text it to me.”

        The fact that a site stores customers’ passwords in plaintext is in itself fuckin’ outrageous. What a site supposed to do at setup (or at resetting the password) is hash the password, and store only the hash. At login hash the incoming password again, and compare to the stored hash. This way authentication is possible (properly set up hash algorithms practically never generate the same hash from different password plaintexts), but if the site gets hacked, the hackers can’t get a hold of the passwords. I would venture the notion that storing the users’ passwords in plaintext is civil negligence by the site.

      2. Mm, I think it’s more “verify I’m who I am via a text”. I’ve never been on a site that texts you your password. I’m not saying they don’t exist, but as neoteny says above, the site owner doesn’t “know” your password… they just have a hash/authenticator for it. They can’t text you your password if they’re doing it right.

      3. Generally, they text you a timed, single-use passcode to type in so you can reset your password.

    2. They have been posting notices to the “these friends of yours have given us their numbers, why not you?”

      I amnot sure why.

      1. That’s almost as creepy as that “here are your neighbors who voted” crap.

        1. I don’t have neighbors.

    3. But why the hell would you give Facebook your phone number?

      More and more sites are REQUIRING a mobile number for two-factor authentication.

      The other day, a financial institution’s site wanted my mobile number for me to log in (I logged in just fine last month).
      I had to call them to explain that, “No, I don’t have a mobile phone and fix your shitty web site”, after which they finally sent me a code by e-mail.

      They said it might happen again.

      1. Yeah, having a (text-capable) mobile phone really should not be something that is required of people. As for Facebook, I resisted joining it for years. I finally created an account so I could post comments on sites using the Facebook commenting system, and view info on FB pages without half the screen being covered with a request to log in or create an account. But my FB page is empty.

        1. “Yeah, having a (text-capable) mobile phone really should not be something that is required of people.”
          Correct.

          But online-banking is a privilege, not a right.

  8. Somebody actually sued about getting a Facebook birthday reminder???

    1. Lawyers got student debt to pay off; they will sue anyone over anything.

  9. Wasn’t there a story one time about a frog who gave his phone number to a scorpion? I don’t remember the details but it wound up with the frog getting herpes from some skank-ass princess who was going around sexing up frogs for some reason, IIRC.

    1. Gay frogs, actually

  10. You’d think the guy complaining would be the one getting his birthday mass-texted to identity thieves.

  11. Never joined FBook, never missed it.

  12. Raise your hand if you’re retarded enough to put your real cell phone number in Facebook.

  13. Corporations are people – take out a restraining order and have them arrested next time they contact you.

  14. All facebook customers will get a settlement of $5.00 each to cover potential texting fees. And the lawyer will get 350 million dollars.

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