Are Facebook’s “Security Alerts” Illegal Robocalls?

November 28, 2020

Robocalls: they interrupt, distract, and annoy almost everyone. The fact that Congress outlawed them in certain cases reflects American’s distaste for these pesky auto dialers. But what about automated messages sent to people’s phones that do good instead of harm? Such a question, defining what counts as a “robocall,” is about to find an answer at the Supreme Court.

A ruling against Facebook might scare companies from sending its customers useful or critical information about their user accounts.

The case puts a Facebook phone alert policy in the spotlight. Namely, Facebook uses automated messages to alert users of certain activity concerning their Facebook account—including messages about important security activity. An annoyed smart phone user sued Facebook under the Telephone Consumer Protection Act, claiming Facebook’s messages amounted to an “auto dialing” system in violation of the law.

The Telephone Consumer Protection Act & The “Auto Dialer”

Congress designed the TCPA purportedly to protect phone users from unwanted or annoying messages and calls. The law bans entities from sending such messages through telecommunication unless the entity establishes prior consent from the receiving user beforehand. The relevant legal question under the Act is what counts as an “auto dialer.”

Courts are split on the answer. The Ninth Circuit ruled against Facebook in the present case, Facebook v. Duguid, taking a broad view of the term “auto dialer” and declaring Facebook’s automated security messages illegal under the TCPA. The Ninth Circuit’s broad definition of auto dialer draws support from the Second Circuit as well; however, the Third and Eleventh Circuit courts have taken a narrow definition of the term, potentially giving tech companies larger discretion under the law for sending their users automated messages. Facebook asks the Supreme Court to resolve the discrepancy between the lower courts and to provide a clear definition of “auto dialer.”

Spam, or Useful Alert?

The outcome of the case could have potentially drastic implications for what notifications companies are allowed to send their users and for the types of messages people receive on their phone. Many might assume less notifications means less spam and a better user experience, but not all notifications are spam, and some provide useful or even critical insights regarding the services and applications most people use on their phones every day. A ruling against Facebook might scare companies from sending its customers useful or critical information about their user accounts.

In particular, if social media companies like Facebook fear lawsuits for texting their customers some important security information, like information related to bug updates or a possible account hack, social media companies won’t send it, making it harder for users to become aware of important activity. Further, social media is not the only type of technology that has a legitimate interest in sending these types of updates; banking, phone carrier services, and healthcare related applications may also struggle to reach their users if the Supreme Court affirms the Ninth Circuits broad definition of auto dialer.

Going Forward

Facebook has apparently won the Trump administration’s support on the issue, who also ask the Supreme Court to take a narrow view of the TCPA. If the Supreme Court sides with Facebook, it is unlikely to create a big change in how companies interact with their customers. A ruling for Mr. Duguid, however, will possibly create much uncertainty as to what types of messages or alerts would create liability for companies that send them, and possibly frustrate users who benefit from these messages if they are no longer sent. This is why the Supreme Court should side with Facebook and narrowly read “auto dialer” to not include the standard and routine updates companies have always sent phone users for their own benefit.

Nicholas Yakoobian

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