In the late 1970s, the cutting edge of communications technologies was the autodialer, a machine capable of calling up scores of people in one shot, with little human involvement. It was innovative, and annoying. By the early ’90s, Congress had had enough. “Computerized calls,” railed South Carolina Democrat Fritz Hollings from the Senate floor, “are the scourge of modern civilization.”
And so, Congress legislated. But the focus was on commercial calls. Mindful of the free flow of speech and – let’s be honest – interested in self-preservation, lawmakers exempted political calls from its Telecommunications Consumer Protection Act. But Congress decided that some phones were too sensitive to get even autodialed political calls: those in hospitals, those designated for emergency purposes – and those in our pockets.
But here we are, some two decades later, and voters across the country are getting political text messages they never asked for.
“Do you agree government unions are being greedy in Wisconsin?” read one text reportedly sent to voters in the Badger State last April, tied to an email address of a little-known PAC called Americans in Contact.
In a state Senate race in Virginia last year, Democrat David Marsden got slammed in a text from “Concerned Parents” over a vote Marsden made against a bill that would notify parents when their children were being disciplined in school.
In the 2012 Republican presidential primary in Michigan, local media reported that Mitt Romney was being targeted with texts sent under the banner of “West Coast Republicans” that pointed voters to decontextualized comments the candidate had made about his feelings toward poor people.
Most recently, voters in next week’s hotly contested Wisconsin gubernatorial recall election have reported receiving texts from one “firstname.lastname@example.org,” a bogus address, that read “Tom Barrett is a Union Puppet who will give Union Thugs everything they want.”
To reiterate, those voters never asked for these texts. And there was no real way to trace them back to any actual human. So, given congressional action in the ’90s, wasn’t that illegal? Wasn’t the scourge ended then, especially because federal regulators later decided that text messages count as a “call” when it comes to this sort of thing?
No. And here’s why: These text messages aren’t actually, technically text messages as we normally think of them. They’re more like emails that show up as texts. And that introduces a loophole through which these texts are arriving.