Will 1st Amendment snip anti-robocall deal?

            When all 51 state and district attorneys general and a dozen major phone providers announced a planned war on robocalls Thursday, commentators hailed it as so transcendent it could unify America.

Participants came from all parts of the political, economic and philosophical spectrum and spent 18 months working out battle plans. In short, it was hailed as a miracle--for the few hours before a new Kerfuffle involving Donald Trump grabbed the headlines.

            But a potential 1st Amendment clash looms, though so far it has drawn little public attention. The plan uses technology and massive data collection on specific business telephone customers to identify and end potentially improper robocalls.

 The problem is, no provisions are outlined for due process before a business customer can be denied phone service or have existing service cut off based only on a suspicion of what content calls might contain or what will separate illegal scams from constitutionally protected speech.

That’s First Amendment territory. A federal court has already voided one recently approved amendment to the Telephone Consumer Protection Act of 1991 (TCPA) that actually would have exempted robocalls being used to collect debts owed to the federal government from the law.

 The court ruled that any government action which affects speech based on its content must include “strict scrutiny review,” to survive any court challenge. Summaries of the eight key principles of the anti-fraudulent robo call plan contain no mention of such scrutiny, although that issue so far has not been widely discussed.

Key plan points

• One plan principle is consumer activated but the others involve decisions made by the telephone companies in consultation with the Attorneys General and law enforcement. Actions are based mostly on high technology analyses of data on outgoing calls from certain business users and collecting additional data on businesses to determine if some fit profiles which would allow denial of service based on how the patterns compare to those of rogue robo callers.

The consumer-initiated component provides access to free call blocking and labeling services. It seems unlikely to pose problems because consumers can choose whether to participate. Plan backers say customers’ only option now is to not answer incoming calls.

New Hampshire Attorney General Gordon MacDonald said using that option almost killed a state resident. The woman had been awaiting a match that could be used for a liver transplant needed to save her life. But when the call came, Caller ID did not show a name or number she recognized so she did not answer.  Fortunately, an alternate contact reached her in time, MacDonald told a news conference in Washington.

• A pair of automated systems called STIR and SHAKEN prevent robo-call systems from spoofing the number from which a call originates so the recipient’s caller ID shows it as a local call—even one from their own phone. This deals directly with consumer fraud laws already on the books in various forms nationwide, the Attorneys General said.

• Phone companies would analyze high-volume voice network traffic to identify and monitor patterns consistent with robocalls. But there’s no indication of what kind of strict scrutiny would be required before they could start monitoring and analyzing calls without raising both privacy and 1st Amendment questions.

• Phone companies would investigate suspicious calls and calling patterns “if a (phone service) provider detects a pattern consistent with illegal robocalls or…otherwise has reasons to suspect illegal calling or spoofing is taking place over its network” and try to identity the origin of the calls followed by taking “appropriate action.” That is defined as everything from tracing calls and cutting off service to the calling party, investigating its business records, or notifying law enforcement. Again, there is no explanation of what kind of strict supervision would be used for the measures that might raise constitutional issues.

• Phone companies would require traceback cooperation for all new and renegotiated contracts with customers.

• Phone companies, working through USTelecom would cooperate in traceback investigations by simplifying information exchanges among the parties to the agreement and giving priority to traceback investigations.

• Phone companies would stay in close touch with Attorneys General about recognized scams and trends in illegal robocalling and update the prosecutors about additional solutions to ever-changing technology used in scams.

Thus, it appears two of the eight points of the plan now described publicly raise specific constitutional issues, and several others might depending on how they are actually used.

Court fight predates plan

Several political parties, groups and companies who contact voters using robocalls sued the FCC May 12, 2016. They asked the U.S. District Court in Raleigh, NC to void the TCPA and especially the debt collection exemption clause. However, the district court granted the FCC a summary judgment leaving both intact.

But April 24 a 3-judge panel of the Richmond, Va.-based U.S. 4th Circuit Court of Appeals unanimously sided with the plaintiffs. In a 25-page order it barred allowing the federal debt collection exemption, saying it clearly did not pass 1st Amendment muster, although the other exemptions in the original act for such things as official notifications to the public of emergency weather or disaster situations and providing instructions on how to respond, or calls requested by recipients such as notification of medical test results, doctor appointments and similar events.

The ruling quoted a 2015 Supreme Court ruling in Reed v. Town of Gilbert (135 S. Ct 2218, 2227) which stated a restriction on such calls at issue there flunked a 1st Amendment test since it “applies to particular speech because of the topic discussed or the idea or message expressed.” Regulations can only be applied to or waived for such calls without breaching 1st Amendment requirements following “a strict scrutiny review” which a court “must conduct” if a challenge to the regulation or waiver is filed.

The two original portions of the TCPA met that test, the judges ruled, but the debt exemption did not and must be severed from the acceptable portion of the law, the court ruled.

The FCC and Justice Department appealed for the full appeals court to re-hear the case, but that motion was unanimously denied without hearing or written explanation.

A 3-line document issued by the Appeals Court Clerk said only, “The petitions for rehearing en banc were circulated to the full court. No judge requested a poll.”

No notice of appeal of that order had been filed as of Friday, meaning the April 24 order apparently stands as the governing precedent on the issue, which appears to have a direct bearing on this case.

The case, filed by the state Democratic Parties of Washington and Oregon, the Tea Party Forward PAC, the trade association for political consultants and a Washington-based polling company, was not widely publicized as it wound through the system nor was it mentioned when the Attorneys General and the telecom companies’ trade association unveiled the new robocall rules.

However, the U.S. Chamber of Commerce raised similar concerns about robocall laws or regulations in a letter to a House subcommittee earlier this year.

The 32-minute press briefing on the new robo call control plan featured the Attorneys General of North Carolina (Joshua H. Stein), New Hampshire (McDonald) and Arkansas (Leslie Rutledge) as well as Patrick Halley of USTelecom, representing the phone providers.

While nobody mentioned the recent federal court decision, all spoke in unison stressing that the problem was universal and critical, that immediate action was needed.

Reporters from McClatchy inquired about the general legal framework and timing for the effort.

“We’re trying to shine a bright light on this sordid industry that exists in the darkness,” AG Stein said, citing the enormous financial and emotional damages “they are costing our people.”

MacDonald continued, “We can’t wait for Washington to act. We need to get the information and the ability to identify the errant carriers so that we can exercise our existing authority to take appropriate action…

“This is a collaboration. From the beginning we realized that we as states can’t solve this problem without the help of industry and industry can’t solve this problem without the help of law enforcement to go after the bad actors...

“In terms of whether the companies don’t live up to it, we have other ways than going to court to encourage their ongoing cooperation.”

Calls and emails to various participants in the plan as well as the American Civil Liberties Union seeking clarification of any 1st Amendment issues were not returned.

Oklahoma Attorney General Mike Hunter said in a statement released in Oklahoma City simultaneously with the Washington press conference praised the phone companies for working with Attorneys General “to implement new technology while actively monitoring networks for robocall traffic.”

 He described the plan as providing “much-needed prevention and enforcement mechanisms that will have a meaningful impact for all Americans,” but mentioned only the benefits to consumers of reducing unwanted robocalls and reining in criminal or fraudulent schemes. His press office was among those contacted that did not respond to questions on what constitutional safeguards were built into the plan.