Justices Struggle to Measure Facebook Texts Against Outdated Spam Law

A Facebook start page is shown two years ago on a smartphone in Surfside, Fla. (AP Photo/Wilfredo Lee, File)

WASHINGTON (CN) — Justice Clarence Thomas voiced annoyance Tuesday at a case that seeks to update a 1990s-era law targeting and prohibiting robotic prerecorded calls so that text messages are also covered.

“I think it’s a little odd when … we make great effort to interpret statute that really wasn’t intended for the universe in which we are operating now,” Thomas said. “And at what point do we simply say that?” 

Thomas was referring to part of the Telephone Consumer Protection Act, or TCPA, which was enacted in 1991 to curb robocalls that invaded homes as Americans sat down to dinner. The law also banned automatic telephone dialing systems or calls placed with a prerecorded voice from generating random numbers and placing calls — often to cellphones, which had to pay a per-call fee.

Noah Duguid brought the suit here as a class action after Facebook texted him about recovering an account password. Duguid does not use the social media site, however, and the account-resetting instructions persisted for months even after Duguid contacted Facebook representatives.

Though the Ninth Circuit would later reverse, a federal judge initially dismissed the suit on the basis that Facebook’s texts were specific to thwarting inauthentic login attempts and that Duguid had failed to show how the company had automatically generated and then dialed his information. 

The Ninth Circuit concluded that any device or system with the capability to randomly generate and store numbers and dial them automatically could qualify as a TCPA restricted system. 

Supporting Facebook’s position that its system did not fall into the TCPA’s definition of automatic dialing systems, Assistant Solicitor General Jonathan Ellis agreed with Thomas’ point Tuesday that technology had advanced beyond the statute.

Moreover, Ellis argued, Duguid’s reading about any device used to store then automatically dial phone numbers could present potential problems for personal cellphone use — devices that could be interpreted to randomly generate numbers, store them and dial them automatically.

As for ruling the statute was obsolete, as Thomas suggested, Ellis agreed an opinion saying as much would resolve the issue.

“I think that the court’s approach shouldn’t change based on that,” Ellis said. “I think the right approach for the court is to still engage with the statutory text as it’s written and if it needs to be updated, leave that updating to Congress.” 

Class counsel Bryan Garner with the firm Garner & Garner argued that the issue involves only “ordinary lexical meaning, grammar and cognition.”

“An example: to maintain or acquire lands to be developed using eminent domain,” Garner said. “No linguistic rule should lead us to conclude that we must maintain lands using eminent domain. The adverbial modifier links up with the verb acquire; that’s ordinary meaning.”

Chief Justice John Roberts said it was not assumed that ordinary English speakers are applying advanced grammatical analysis when interpreting statutes or provisions within laws. Garner agreed, saying most native English understand syntax without needing extra directive.

“For example, cookbooks are full of statements that say, ‘using a spatula, lift the omelet and tilt the pan,’” Garner said. “Nobody stops to parse it and says, ‘oh, do I have to use the spatula to lift the pan?’” 

Arguing for Facebook Tuesday, Kirkland & Ellis Attorney Paul Clement said Garner’s reading created “a statute of impossible breadth and a fundamental mismatch” between the definition of an automatic dialing system set forth in the TCPA and its targeted conduct. 

Under ordinary rules of grammar, Clement said, a restrictive modifier following two disjunctive verbs modifies both words. Supporting that argument, he said, are three features of the TCPA statute, including the punctuation, which offset by a comma, shows intent for the law to modify both devices used for randomly generating and automatically dialing those numbers.

“The direct object that follows ‘produce,’ ‘telephone numbers to be called,’ concededly applies equally to ‘store’ as well as ‘produced,’” Clement said. “Having some but not all of the text that follows ‘produced’ refer back to ‘store’ requires a significant judicial rewrite.”

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