The MTTLR Blog

New Jersey senators Joseph Vitale and Sean Kean have proposed legislation that would impose heavy fines on entities that sent unsolicited text message advertisements. Though the Telephone Consumer Protection Act was enacted prior to the advent of text messaging, such unsolicited text message ads have recently been found to fall under the TCPA. The 9^th Circuit has declared this interpretation of the FCC to be reasonable and other circuits are likely to follow. The FCC prohibitions, however, do not include all text messages; rather, they only prohibit those sent from an internet domain name. Messages sent from cell phone to cell phone are exempt.

Vitale and Kean’s bill provides that fines will only be levied in two instances: if the text message causes the recipient to incur a fee or decreases the number of text message the recipient is allocated by his cell phone provider. The fines, only imposed if the advertiser sends more than one per year, are very steep; $10,000 for the first offense, $20,000 for subsequent offenses, and $30,000 if the advertiser knew or should have known the recipient was disabled or elderly. The bill also contains a provision requiring all phone companies to offer New Jersey consumers the option of blocking all incoming and outgoing text messages. Senator Vitale explains the motivation of the legislation, “We have to do a much better job in New Jersey to protect consumers from unsolicited text advertisements which can drive their cell phone bills through the roof.”

Certainly the New Jersey bill correctly recognizes the need to close the loopholes in the FCC’s regulation; however, it is still deficient. Firstly, in many cases it would be impossible to determine whether an advertiser knew or should have known if the recipient was disabled or elderly. The bill contains no guidance on what type of inquiry, if any, the advertiser should undertake to determine if the recipient falls into one of those categories. In many cases, it seems unlikely the advertiser would have enough information to know the recipient’s status. If the bill’s intent is to protect these groups, the additional fee should be levied regardless of the advertiser’s knowledge; otherwise, it is unlikely they will ever be subject to this additional fine.

More importantly, under the terms of the bill, unsolicited text messages to a recipient who had an unlimited text messaging plan would be permitted; a consumer with an unlimited plan would not incur a fee or a decreased number of available messages. Thus, the bill does not properly deal with the nuisance of unsolicited texts, rather it only recognizes the monetary cost. Such a stance is unreasonable; a consumer would have to receive a massive amount of unsolicited ads for any real cost to be incurred. Sprint, AT&T and T-mobile charge only twenty cents per text message. Most consumers would not be aggravated by this minimal charge, but rather at the annoyance of unsolicited contact. The bill should be amended to prohibit all unsolicited text ads, even if the consumer suffers no monetary loss. With this alteration, the bill would operate as an effective deterrent.

Google has revolutionized the way we access information by providing world wide knowledge and information at our fingerprints- all for free.  However, there is a hidden cost of accessing this information: your privacy.  Unbeknownst to many Google users, Google maintains a log of every search with IP addresses and other information that can be used to uniquely identify the user.  Furthermore, Google keeps this data from 9 to 18 months before ‘anonomyzing it‘, or getting rid of data that can be used to trace searches back to individuals.

The contents of Google searches are often intensely private – people often search for information they otherwise are too ashamed of talking about with others.  A search done out of curiosity could easily be misconstrued by another person.  Additionally, Google’s products have the potential of capturing much more than our search queries – including email, health records, phone calls, text messages, and even your physical location.  The potential for other party’s to get this information is concerning.  For example,  U.S. Department of Justice has subpoenaed this data in the past.

But what’s really concerning is not the potential for abuse, but rather Google’s attitude about data privacy.  In a recent interview with CNBC, Google CEO Eric Schmidt said, “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place…the reality is that search engines including Google do retain this information for some time...”  This attitude is sickening, and is a serious threat to data privacy.  Afterall, it is Google who we entrust to protect our personal data against hackers, overzealous government prosecutors, or disgruntled company employees.  Furthermore, what happens to this data if Google is acquired by another company or goes out of business?

by Melanie Persinger, MTTLR Associate Editor

Image Lincoln by Katy/teapics. Used under a Creative Commons BY-NC-SA 2.0 license.

As new technologies become part of our lives, teenagers figure out a way to use these technologies to do what it is they do best: get themselves into trouble. Cell phones and picture messaging are no exception. This fall, a fifteen-year-old girl in Ohio was arrested for taking nude photographs of herself and sending them to other minors. The teenager was charged with illegal use of a minor in nudity oriented materials and possession of criminal tools under Ohio law 2907.323(A)(3). The charges could also qualify the girl to be classified as a sex offender, requiring her to register annually. An Ohio prosecutor, Ken Oswalt, said that the other minors who received the photographs might also be charged for possession of child pornography.

The Ohio case was recently settled out of court, and the young woman in that case will not have to register as a sex offender. But the law at issue was Ohio’s version of Megan’s law, which has been enacted, with slight variations, in all fifty states and the District of Columbia. This means that a similar case could potentially come up anywhere in the United States. In fact, the case in Ohio is by no means the first instance of a minor being faced with criminal charges for taking and sending, or posting online, nude photographs of themselves. According to Fox News, “Similar cases have been reported in New Jersey, New York, Alabama, Utah, Pennsylvania, Texas and Connecticut.” Michigan and Florida have also seen similar cases. Because this is a growing trend, it is important to ask ourselves if criminal charges are the appropriate way to deal with these teenagers’ misconduct.

The aim of laws of this type (preventing sexual offenses against minors) is to prevent harm to the child. Proponents of the law in issue argue that this means protecting children from harm they could cause to themselves in addition to protecting them against harm caused by others. While the current law does this to a certain extent, it is also overly broad in that it imposes a different, and arguably worse, harm on the minor. It is true that once the photographs become public, they will likely haunt the teenager forever or could possibly end up in the hands of adults who are looking for child pornography, both of which are harms that we should be concerned about. However, imposing criminal charges will not undo the fact that the photograph(s) are now out in public. Additionally, imposing criminal charges, especially requiring the minor to register as a sex offender, is also likely to haunt them forever. It is hard to see how preventing harm to minors justifies imposing other harms on them: the stigma of a criminal record and being labeled as a sex offender.

by: Marc Kaplan, MTTLR Associate Editor

Image Andy texting what Cheney should say by Steve Rhodes.
Used under a Creative Commons BY-NC-SA 2.0 license.

Text messaging has exploded in popularity in the U.S. and around the world. Indeed, 75 billion text messages were sent in the U.S. in June 2008 and 40% of American teenagers believe they can text blindfolded. With so many communications exchanged through this medium, the privacy of text messages has come under legal challenge in a number of contexts. Employees frequently have access to text-messaging through work-provided devices, and not-uncommonly use the devices to send personal messages. Whether they can expect privacy in relation to those messages is an unsettled legal matter.

A case study: the Kilpatrick Scandal

In one example, former Detroit mayor Kwame Kilpatrick resigned from office in September, under criticism after his “private” text messages – from his government-issued pager – were revealed following a whistler-blower suit. The suit alleged that the mayor unlawfully discharged Detroit police officers because he was afraid the officers would reveal his extra-marital relationship with his Chief of Staff, Christine Beatty. At trial, the mayor contended that allegations of an affair were “preposterous”, and the vigorous defense was able to preserve the text messages from discovery before the trial. Even without the messages as evidence, the jury found the mayor guilty and gave the aggrieved officers a multi-million dollar verdict.

After the trial, the plaintiffs succeeded in obtaining the text messages through subpoena, and discovered that they bared a rather different story than that maintained by Kilpatrick.

Beatty: “And, did you miss me, sexually?”
Kilpatrick: “Hell yeah! You couldn’t tell. I want some more. “
Detroit Free Press

With this new leverage, the plaintiffs offered to settle as opposed to fighting through the appeal. The mayor agreed to the settlement, in what appears to have been an attempt to cover up the newly exposed text messages.Although the issue was litigated all the way to the Michigan Supreme Court it was eventually ruled that the settlement agreement was a public record and subject to the state’s freedom of information act.The text messages, now accessible to the public, have continued to be relevant in subsequent proceedings against Kilpatrick and Beatty for perjury, conspiracy, obstruction of justice, misconduct, and other charges.

Employee privacy protections

Courts have split over the protections given to text messaging, attempting to weigh the need to access communications in the ubiquitous and casually-used medium against privacy concerns.

In Quon v. Arch Wireless Operating Co, a highly publicized case factually similar to Kilpatrick’s, a police department searched an officer’s text messages to determine whether the officer exceeded his quota of text messages by using it for personal communications. The district court held that the officer’s text messages sent through the government-issued pager were subject to the privacy protections of the Stored Communications Act and were therefore not searchable by his employer. The 9^th Circuit affirmed in part and held that the officer had a reasonable expectation of privacy in the text messages and that the search had violated his 4^th Amendment rights.

Not all courts have broadly construed the Stored Communications Act or constitutional protections of text message privacy. Indeed, in a separate case involving Mayor Kilpatrick’s text messages as they related to a murder investigation, a district court in the 6^th Circuit breezily distinguished Quon by holding that it was inapplicable to a case with the same fact pattern but where personal text messages were not the targetof the search.

These holdings appear contradictory, but the more important issue may be what questions the cases leave unanswered. Quondoes not specify whether the holding should apply to both public and private employers. Commentators also also disagree on whether Quon will change employers’ practices significantly. Drawing general rules from these cases or trying to predict the direction of this fertile area of the law appears fraught with danger, as does texting personal messages from your work-issued Blackberry®, unless you live in California.