University of Washington School of Law

Newspaper Reveals Source of Anonymous Online Comments

The Cleveland Plain Dealer recently decided to release the identity of an anonymous person who was posting online comments about a pending capital murder trial.  The newspaper revealed the person’s identity after linking comments to an e-mail address affiliated with a local court where the trial was pending.  The trial judge told the newspaper her daughter was responsible for posting the comments.

Anonymous online posts are raising a host of new legal issues.  In the litigation context, courts have struggled to adopt a uniform test balancing the First Amendment right to remain anonymous with plaintiffs’ desires to obtain identifying information through subpoenas.  The Shidler Journal (now the Washington Journal of Law, Technology & Arts) recently analyzed an Arizona court of appeals decision offering a new hybrid approach to balancing the rights of anonymous posters with litigants challenging online activities.

The News Room Blog has questioned the Dealer’s decision to out its anonymous reader: “Down the road, however, when the Plain Dealer seeks to quash a subpoena from a local politician seeking the identity of someone who he or she alleges posted defamatory material anonymously, Exhibit A to the plaintiff’s brief will almost certainly be this story.”

University of Washington School of Law

Telemarketers Beware: A Text Message is a Call

Telemarketers sued for sending text message advertisements still haven’t gotten the message: A “text message” is a “call” under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.  Therefore telemarketers must obtain prior consent to send text messages advertisements to cell phones just as if they were autodialing cell phones with recorded voice messages.

Last week the the U.S. District Court for the Northern District of Illinois, decided what is now the fourth case affirming the TCPA, which was enacted to protect consumers from unwanted telemarketing calls, also applies to unwanted text message advertising.  Lozano v. Twentieth Century Fox Film Corp., N.D. Ill., No. 1:09-cv-06344, 3/23/10.  The telemarketers had argued text messages were not “calls” because  § 227(b)(1)(A) only refers to “calls,” while § 227(a)(4) refers to both “messages” and “calls.”  The court rejected that argument.

Like Professor Goldman, we’re not sure what it will take for advertisers to get the message.  We’ve been pointing out since 2007 that TCPA also applies to text messages.  And Lozano is now the fourth decision affirming text messages are telephone calls under TCPA.  Satterfield v. Simon & Schuster Inc., 539 F.3d 946, 953 (9th Cir. 2009); Abbas v. Seeling Source LLC, 2009 WL 4884471, (N.D. Ill. Dec. 14, 2009); Joffe v. Acacia Mortgage Co., 121 P.3d 831, 837-38 (2005).  Each of these decisions has affirmed a 2003 FCC opinion that text messages are calls.  In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 F.C.C.R. 14014, 14115 ¶ 165, 2003 WL 21517853 (2003).  This should really be old news to telemarketers.

The result of these decisions is that telemarketers sending text messages must comply with the same TCPA requirements as telemarketers making voice calls.  TCPA prohibits “any call . . . using any automatic telephone dialing system [ATDS] . . . to any . . . cellular telephone service . . .” unless the recipient gave prior express consent.  47 U.S.C. § 227(b) (2006); 47 C.F.R. § 64.1200 (2010).

If telemarketers must continue parsing TCPA to seek shelter from litigants, perhaps they should raise the issue of whether they actually “dialed” telephone numbers within the meaning of the Act.  Like “calls,” TCPA does not define the term “dial.”  Joffe v. Acacia Mortgage Corp. is the only decision addressing this issue.  Citing Webster’s the court concluded “dialing” means “‘operate’ or ‘manipulate’ a device ‘in order’ to make or establish a telephone call or connection.”  Depending on the technology used to send the message, an argument could be made that dialing is not occurring with mobile advertising. 

At the end of the day, however, telemarketers really shouldn’t be sending unsolicited advertisements, voice, text, or otherwise.  The best practices guidelines issued by the Mobile Marketing Association clearly prohibit sending unsolicited messages, require that consumers affirmatively opt-in, and mandate that all messages contain directions on how to opt-out.


University of Washington School of Law

Who are we?

LTA-Blog is a new project started by students at the University of Washington School of Law.  The purpose of this blog is to publish twice-weekly analysis of current legal issues in IP, technology, commerce, and the arts.

The blog is a part of the Washington Journal of Law, Technology & Arts, formally known as the Shidler Journal of Law, Commerce + Technology.  The Journal collaborates with the Law, Technology & Arts Group (LTA), a new research program at the University of Washington School of Law.  LTA was formed in 2009 when the University of Washington School of Law merged the Center for Advanced Study & Research on Intellectual Property (CASRIP), the Shidler Center for Law, Commerce + Technology, and the Graduate Program in IP Law & Policy into a single research unit.  This new research group takes a comprehensive approach to the legal issues involving technological and artistic innovation.

The purpose of this blog is two-fold.  First, this blog will analyze key emerging legal issues in IP, technology, commerce and the arts.  This analysis will ensure that our authors and editors at the Journal stay abreast of emerging legal issues.  Second, this blog will showcase research being developed by authors at the Journal.  The Journal’s core mission is to publish clear and concise analysis of today’s legal issues.  This blog will allow the Journal to continue to carry out its mission by quickly transmitting current legal information to busy attorneys and industry leaders.