By: Ben Cashdollar

There are no two-ways about it: robocalls are the worst. At one time or another everyone has been waiting to receive an important phone call, felt the paroxysm of equal-parts excitement and anxiety accompanying their phone’s ringing, only for that emotive maelstrom to be compounded with frustration and annoyance when the caller is revealed to be a robot informing them of an “exciting, once-in-a-lifetime opportunity!” Unsatisfied by merely preying upon our emotions, robocallers prey upon our wallets as well – according to Consumers Union robocalls, and other such phone scams, result in more than $350 million in financial losses annually.

From a Legal Point of View

The onslaught of robocalls has prompted a response from the judiciary and created a path to restitution for affected consumers. In Mey v. Got Warranty, Inc., et al, the Northern District Court of Western Virginia held that the robocallers caused a concrete, particularized harm such that the plaintiff’s Telephone Consumer Privacy Act putative class action claim could survive a motion to dismiss. In their decision, the court held that the robocalls at issue had caused the intangible harms of invasion of privacy, intrusion upon and occupation of the consumer’s phone, wasting the consumer’s time, and creating a risk of personal injury due to distraction and interruption. While this is undoubtedly a step toward a better telephonic tomorrow, it is also unsustainable policy to expect consumers to bring independent legal action for every robocall.

Ask a Robocaller to Stop Calling?

Veritable postmodern snake oil salesmen, robocallers will persist until measures are put into place that frustrate their efforts. A basic protection available to the public is registering phone numbers with the National Do Not Call Registry. This is a list of numbers that telemarketers are not supposed to call. Unsurprisingly, this is not 100% effective. The FTC admits that registering a phone number does nothing to stop scammers who are willing to ignore the registry. While the FTC does take legal action against such individuals, these lawsuits target the symptoms rather than the disease itself. Moreover, the Registry only prohibits sales calls; those registered may still receive political calls, charitable calls, informational calls, and surveys. Preventative protection measures would be far more efficacious. Telephone companies have the technology and positioning to help filter out robocallers, but their actual efforts to do so are best categorized as lackluster.

The Government Answers the Call

Fortunately, technological solutions are not the only recourse to terminating robocallers. Congress passed the Telephone Consumer Protection Act in 1991 (“TCPA”), which specifically restricts the use of automated dialing and pre-recorded messages in telemarketing. Another proposed bill, the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED; S.3655) was referred to the Committee on Commerce, Science, and Transportation by the Senate in November 2018. TRACED, a would-be amendment to the TCPA, would “deter criminal robocall violations and improve enforcement of section 227(b)” by adding a $10,000 civil forfeiture penalty and $10,000 criminal fine for any person who violates the TCPA, in addition to directing the FCC to require telephone services providers to implement an “effective call authentication framework.”

Additionally, in a press release on November 5^th, 2018, FTC Chairman Ajit Pai “demanded that the phone industry adopt a robust call authentication system to combat illegal caller ID spoofing” to launch “no later than [2019].” Such a system was deemed “critical to protecting Americans from scam robocalls.” In particular, telephone service provides were asked to implement the framework interchangeably called “STIR/SHAKEN” and “SHAKEN/STIR.” Aside from being the best federally-contrived acronym in existence, STIR/SHAKEN uses digital certificates to verify an incoming call’s number as accurate and not being spoofed by an unscrupulous caller. Calls that cannot be verified by this authentication protocol are marked as such, and the recipient receives information regarding the caller’s verifications status. For example, a call originating from outside the country that appears to be from a local number would be marked as a robocall–there’s no reason for a phone call to fake an incoming number unless it’s an attempt to deceive the call recipient.

T-Mobile was the first major carrier to deploy the STIR/SHAKEN protocol, albeit in a limited fashion. Customers who own a Samsung Galaxy Note 9 and receive a call from another Note 9 user will be informed whether the caller is verified or likely spam. More recently, on March 20, 2019 AT&T and Comcast successfully tested an implementation of STIR/SHAKEN on their network. Eight days later Verizon rolled out their free Call Filter app, which uses STIR/SHAKEN to flag potential incoming robocalls.

While not quite a robocall-killer as of yet, this technology represents the beginning of the end of robocalls. Developing the technological means for accurately identifying robocalls is the first step towards blocking them entirely. Years ago, a phone carrier automatically blocking calls would be unthinkable; on June 6, 2019 the FCC was lauded for voting to give carriers this exact ability. AT&T announced that they will begin automatically blocking identified robocalls “in the coming months.”

Contrived acronyms and corporate vagaries aside, these recent developments lend credence to the notion of a robocall-less future. And while such an existence would benefit society, it remains to be seen whether these services will be implemented as public or premium goods. In a society where subscriptions, microtransactions, and software-as-a-service business models have become the norm, monetizing the privacy of one’s phone seems a logical next step.