Supreme Court Sides With Facebook Over Unwanted Automated Texts

The court ruling could open door for a flood of unwanted robocalls and texts on consumers' cell phones

By Bree Fowler

April 1, 2021

The Supreme Court on Thursday unanimously ruled (PDF) in favor of Facebook in a dispute over whether unwanted text notifications sent by the social media giant violated a 30-year-old federal law designed to protect consumers from abusive telemarketing practices.

Facebook had argued that the Telephone Consumer Protection Act of 1991 was never intended to stop automated calls and texts from being sent unless the phone numbers were either chosen randomly or were sent in numerical sequence. Facebook says the ruling will allow it to continue sending targeted security notifications to protect user accounts.

But consumer advocates say the case is about more than security notifications. They argue that if robocallers are not covered under the law, there would be nothing to stop them from sending out a potentially unlimited stream of automated recorded calls and texts to consumers’ cell phones.

George Slover, senior policy counsel at Consumer Reports, which joined in an amicus brief in the case, says that in winning the case, Facebook has “succeeded in punching a huge loophole in the law’s core protection.”

Slover says it’s now up to Congress to quickly update the law, “or consumers will be vulnerable to their phones being tied up by a potentially constant flood of robocalls and texts, with no way to stop it.”

Oddly, in the end, the ruling came down to grammar more than anything.

The case stemmed from a lawsuit filed by Noah Duguid after he received numerous texts from Facebook to his phone alerting him that someone had tried to log in to his Facebook account from a new device or browser.

But Duguid didn’t have a Facebook account and hadn’t given the company his phone number.

Duguid tried to stop the texts without success and eventually brought a case against Facebook claiming that the company had violated the TCPA, which largely bans autodialer technology.

The problem is, the language and grammar used in the law, which significantly predates text messages and social media, makes it unclear as to what an autodialer exactly is.

The TCPA says that in order to qualify as an autodialer, a technology must have the capacity both “to store or produce telephone numbers to be called, using a random or sequential number generator,” and to dial those numbers, the court said in its ruling, written by Justice Sonia Sotomayor.

The question was, does the clause “using a random or sequential number generator” apply to both of the verbs that came before it—“store” and “produce”—which is what Facebook argued, or just the closest one, “produce,” which is what Duguid claimed.

In the end, the court relied on a grammar interpretation to side with Facebook.

Slover says that this interpretation does not make logical sense. It renders the TCPA’s core requirement, that automated calls and texts be made only with the consumer’s consent, meaningless. It would make it impossible for a caller to ever comply with the consent requirement because making calls randomly or sequentially does not involve knowing who is being called.

Bree Fowler

I write about all things "cyber" and your right to privacy. Before joining Consumer Reports, I spent 16 years reporting for The Associated Press. What I enjoy: cooking and learning to code with my kids. I've lived in the Bronx for more than a decade, but as a proud Michigan native, I will always be a die-hard Detroit Tigers fan no matter how much my family and I get harassed at Yankee Stadium. Follow me on Twitter (@BreeJFowler).