Political Campaigns Dial Up Text Messaging Outreach, But Is It Legal?

In recent weeks you may have received text messages from an unknown number, often times out of state. They are not selling anything or trying to steal your identity, they are trying to get you to participate in the political process and, more often than not, vote for a particular candidate. Unlike traditional robocalls, these text messages aren’t being sent from some automated device, but instead from a campaign volunteer.

In recent years, this practice, known as peer-to-peer texting, has only continued to expand as examples of its effectiveness grow. As peer-to-peer texting has continued to grow, so have consumer questions about its legality. These questions have resulted in lawsuits and complaints to state and federal regulators alike.

P2P Texting and the TCPA

Presently, the Federal Communications Commission makes clear that:[1]

Political campaign-related autodialed or prerecorded voice calls (including autodialed live calls, prerecorded voice messages, and text messages) are:

  • Not allowed to cell phones, pagers, or other mobile devices without the called party’s prior express consent.
  • Not allowed to protected phone lines such as emergency or toll-free lines, or lines serving hospitals or similar facilities, unless made with the called party’s prior express consent. Allowed when made to landline telephones, even without prior express consent.

These specified prohibitions stem from the regulatory framework found in the Telephone Consumer Protection Act (“TCPA” found at 47 U.S.C. §227 et seq.). This Act generally restricts certain behaviors, outside emergency situations, such as, but not limited to:

  • making any call using any automatic telephone dialing system or an artificial or prerecorded voice—
    • to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States;   
  • initiating any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party; or
  • using any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement (exceptions noted); or
  • using an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously.

However, to date, the Act has been interpreted in a way that does not preclude sending manual texts as they are not sent using an “automatic telephone dialing system.” The FCC makes clear that “the TCPA and the FCC’s rules do apply to political campaign-related calls or texts.”[2] While there is a certain degree of certainty now offered by the FCC, it remains to been seen whether there will be future regulatory changes to adapt to the changing landscape.

Privacy and P2P Texting

The legality under the TCPA is only one area of voter concern, however. Another, and perhaps more prevalent concern, rests in privacy considerations and a campaign’s willingness to give strangers access to your name and contact information. In this vein, it is important to note that, while every state is slightly different, most states make much of your voting registration information publicly available (name, address, phone number) to political campaigns and, often, individuals alike. While many states limit the use of this information to non-commercial purposes, few pair the misuse of such information with a criminal-felony penalty. As candidates and consultants expand their methods of information gathering to various forms of data mining, the voter file remains the first step in most campaigns.

As innovation begets new technology, political campaigns will continue to alter the methods of voter contact. Whether it is paid tweeters, misinformation bots, or peer-to-peer texting, today’s political landscape is something we could have hardly imagined even 5 or 10 years ago. With the exponential changes to how we communicate, we are equally as likely to have a new medium for voter contact before regulators weigh in on changes to peer-to-peer texting. Nevertheless, peer-to-peer texting is the norm for the foreseeable future.

So, with the Super Tuesday primaries around the corner, you may find yourself a popular target for political campaigns. Whether it’s texting, online advertisements, television advertisements, direct mail, or young campaign staffers knocking on your door, campaigns may not know who you are, but they will find you, and they will attempt to persuade you. While peer-to-peer texting from campaigns may be surprising, or even unwanted, it’s not going anywhere anytime soon. Be nice to the volunteer texting and be happy another person is participating in the democratic process.

[1] https://www.fcc.gov/political-campaign-robocalls-robotexts

[2] Id.

The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information, content, and are for general informational purposes only.  

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