> As we head into election season, a lot of us are going to get unsolicited text messages like this. You too can sue for them!

Can you elaborate? Every source I've seen says that politicians have exempted themselves from the spam laws. e.g. a random google result: https://www.cincinnati.com/story/news/politics/elections/202...

> That's because the National Do Not Call Registry does not apply to political text messages.

If you know a way around this, please spill the beans!

I would LOVE to be able to sue political spammers. I donated to many candidates in 2016 and have been getting crazy amounts of text spam from pols ive never heard of for the past 5 years.

Politicians shouldn't have zero consequences for selling my personal data.

You will never be able to do so; campaign calls are exempt from FCC rulemaking not because the FCC is particularly warm to political campaigns (though maybe they are), but because the Constitution forbids them from restricting political speech in this manner.

Municipalities run into a similar problem with those awful circulars that pile up on your front stoop: ordinances to prohibit them have been struct down as unconstitutional. And that's not even political speech, generally!

Stand by while I make the case that politicians filling my phone with texts and voice messages is a violation of the third amendment.

> because the Constitution forbids them from restricting political speech in this manner

What if texts cost you money per-message though? Isn't that why most places get permission before texting you? Do politicians have a constitutional right to drain your money this way?

Freedom of speech isnt freedom to make people listen. If I tell someone to stop calling me and they dont its harassment.

> You will never be able to do so

Could the constitution not be amended, at least in theory? Or the supreme court create a new interpretation?

> Could the constitution not be amended, at least in theory?

Sure, but amending the Constitution for the purpose of permitting the government to impose greater limits on political speech is...going to be a hard sell for a lot of people, and have a high risk if successful of having pretty severe unintended (for non-autocratic supporters of whatever the particular measure is) consequences.

> Or the supreme court create a new interpretation?

Easier than passing an amendment, similar downsides.

Not in our generation. The current thought process of conservative jurists is that money is speech and the founders wanted corporate entities to have unencumbered speech.

I wasn't paying attention and used one my primary email addresses when donating. Account is basically worthless now. So much spam. Even from candidates in states I've never lived in or currently reside in.

I did too, and so far I've been able to end the messages with "STOP"

They all appear to comply with that older school SMS norm. Who knew?

If you do it for a few, they tend to end overall. Now, instead of getting a few a day (right?!?), I get one out of the blue.

I did not "STOP" Bernie. I like Bernie. I don't like how it went with Bernie and all the people trying for better. Those messages have been considerate, infrequent, etc...

So far, all of the others hit pretty hard and fast, but do "STOP"

This suggests some entities, like Bernie for example, do maintain a list but are not necessarily sharing it. Other entities either share their lists, or will send messages for hire.

Your mileage may vary. Hope sharing these experiences helps.

I saw that as well on the FTC's website [0]. Curious if you can actually prevent them.

[0] https://consumer.ftc.gov/articles/national-do-not-call-regis...

Political txt, email and calls are (mostly)protected by the first amendment as free speech. It would be unconstitutional for the government to restrict it with very limited exceptions, mostly related to imminent threats of violence.

Commercial speech can be regulated provided certain requirements are met that are more widely applicable, a four part test is used. See Central Hudson Gas & Electric Corp. v. Public Service Commission. Also under Zauderer v. Office of Disciplinary Counsel the government can compel commercial speech, require advertisers to include factual disclaimers.

So laws like the CAN-SPAM act prohibit unsolicited commercial advertising via txt or email if certain requirements are not met.

There's a big difference between "freedom of speech" and "requirement to listen". You can speak all you like, but you cannot intrude upon others and force everyone to listen to you.

I'm not constitutionally required to let political campaigners onto my private property (my home), and I shouldn't be required to receive their text messages on my private property (my phone).

> I shouldn't be required to receive their text messages on my private property (my phone).

A lot of people agree with you but that’s not typically how it works IRL for USPS either. Generally if you keep trying to deny delivery of junk mail your letter carrier will tell you “you can’t just refuse mail”.

Although I think maybe you are supposed to be able to refuse it, just doesn’t work IRL? People are also supposed to be able to send the mail regardless.

I do think it’s a cost issue. Should cost the standard $0.60 stamp per each bulk mailer (bulk mailers are much cheaper.

Text messages and emails should also cost something reasonable which would dissuade abuse. Perhaps “accepting” a text (or at least not rejecting it) would waive/reimburse that fee so “good” texts could be free? Seems easy for this to be abused though by the body public when temporarily enraged against a corporation/small business.

USPS will always deliver mail, but you can refuse to accept it. If your mail carrier doesn't follow procedure, then... ¯\_(ツ)_/¯

https://faq.usps.com/s/article/Refuse-unwanted-mail-and-remo...

I agree with your other points. Stop the subsidies. I'm not sure why spam makes me so irrationally angry, but it does.

But they cant use automated means. That’s what allows them to blast out texts.

Generally, there are two subcategories of TCPA claims: DNC (227(c)) and ATDS/prerecorded voice (227(b)). The latter claims are still available against politicians, last I checked. The latter claims regulate the technology that allows blast calls and messaging with pre-recorded messages.

not legal advice

At least in San Francisco, I took my phone number and email off my voter registration years ago and now almost never get any political texts, calls, or email, despite being quite politically active.

He mentioned the exact jurisdiction where it happened. Can you point at least one thing, that is wrong?

Sure, I know of no jurisdiction that requires a pre-suit demand for a TCPA claim.

“Issue a notice of demand explaining that you are seeking payment for TCPA violation and give them 10 days to respond. Send mail with signature delivery. (You can't sue without having issued a notice of demand.)”

You do have to serve them once you file the case, but generally, I’m aware of no pre-suit-demand obligation for a TCPA case in small claims court that prevents you from filing.

not legal advice

Well, there is an article on this on Californian Court website: https://www.courts.ca.gov/9739.htm?rdeLocaleAttr=en

"Small claims cases require that you ask the other side for payment before you go to court (unless there is a good reason why you cannot). You can ask in person, by phone, or in writing. You will have to tell the court you did this and how on your court form."

It does not specifically exclude TCPA statutory damage, so I think it does apply in this case.

And it does logically apply here too, small claims court is somewhere between an actual court and mediation and it is in place to save cost when possible. So it is reasonable to expect they want an attempt to resolve it before even before to file.

Anything else?

In California small claims court, they typically want you to try and make a demand. But you don’t have to make a demand in all instances to sue. OP made a blanket statement that you have to make a demand or you can’t sue. That’s not correct under CA law, and that’s generally not correct in other jurisdictions. And we will set aside a preemption analysis because the TCPA is a federal law for another day. (I don’t know if there is one. But could be.)

Ultimately, OP was recounting what he did, and, as I said, I think OP did great. But he shared it for a reason, and so I wanted to make clear that everyone’s circumstances and judicial systems may be different. This is why I said:

“Depending on your jurisdiction, the way you can pursue a case like this is going to vary, so I’m not going to give any hard and fast rules in this comment.”

A couple other potential, and admittedly minor, misstatements from OP

Trebling under the TCPA does not necessarily turn on whether you were on the DNC list (as OP states), it generally turns on a showing willfulness.

And winning a judgment does not mean that the Court just seizes the defendants property. I think that was addressed in another comment.

I wasn’t trying to crap on OP. I simply wanted to point out that OP‘s experience was specific, localized, and not universal. I thought this important because OP’s tweets read sort of like a how-to, and I want to educate others to the nuance that may be required in their specific jurisdictions.

not legal advice

OP here - really appreciate these bits of nuance and correction. That's how everyone learns!

Meta: I wish that Twitter had a better format for iterative discussion: "Hey, I just did X, I wonder how broadly it is applicable?" -> people join in with experience and data points offering nuance about the above -> output reference document with rough consensus and nuance. (This is kind of what happened with my Guide to Stock and Options like 10 years ago - I only got it materially right on the third draft after people constructively dogpiled in with the things I got wrong on the first two takes!)

Now back to the thread - is there case history showing whether presence on DNC constitutes (or doesn't) a wilful TCPA violation? My presumption was that an unsolicited text to a DNC number de facto constituted a wilful violation since best practice is to scrub DNC numbers from cold outreach.

> I wasn’t trying to crap on OP.

Fair, I did not imply that you are, just being genuinely curious.

> In California small claims court, they typically want you to try and make a demand. But you don’t have to make a demand in all instances to sue. OP made a blanket statement that you have to make a demand or you can’t sue. That’s not correct under CA law.

I don't understand this part, the court page says that you "must" do it. Is there a CA law that prohibits CA court from requiring this? My vague understanding is that many things in judicial system are "customary" or administratively driven. Maybe this is the case, while not required by CA law, but required by courts as an optimization technique.

> And we will set aside a preemption analysis because the TCPA is a federal law for another day.

Ah, this is actually interesting. So the TCPA is a federal law and he used it as a basis for his lawsuit in the CA court. How does it work? Can you bring a lawsuit based on federal law in a state law? I just pulled TCPA [1] and in the PRIVATE RIGHT OF ACTION section it clearly mentions a state court:

  A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State

If a federal law explicitly allows state courts, does a state court have to listen such cases unless there is a state law that prevents it?

[1] https://www.fcc.gov/sites/default/files/tcpa-rules.pdf

Related question I’m hoping you know the answer to: can I use this as a recourse against debt collection calls or texts? I get numerous calls and texts for the prior owner of my cell phone number (to whom I have no relation to be clear) that have persisted for ~6 years despite repeatedly informing them I am not the individual they want to contact and asking to be removed from their records.

This is actually one of the most common TCPA claims out there these days.

They are sometimes referred to as “wrong number“ claims, or “reassigned number“ claims. You get a cell phone with a new number, and the old owner of that number was, for lack of a better word, a deadbeat. You spend the next 5 years being hounded by the previous owner’s collectors. This can potentially give rise to Claims under the TCPA

OP here. I'm definitely not a lawyer, so apologies for incorrect statements made in the thread. I'd love to learn more about correct framing / case history / rights here to avoid sharing misinformation. If you'd rather provide the feedback privately / off-the-record, my email is david at weekly dot org. Thank you!

The only thing that I noticed was not 100% correct is:

5. [..] courts will seize from them what you are owed

The process to get a court to do this is extremely difficult. It often starts with Debtor Examination followed by filing a bunch of documents to start the seizing process. If the person really doesn’t want to pay the judgement though, good luck. For example, during the Debtor Examination they have to answer truthfully under oath where their bank accounts and other property are. And then as soon as the meeting is over they can move to a different bank.

Getting a judgement is the easy part. Collecting it is the hard part.

https://www.nolo.com/legal-encyclopedia/what-is-debtor-exami...

Ah! Yes, my statement was incorrect. I had observed wage garnishment on the other side of the fence as an employer and had assumed courts would do this processing after a default judgement. This turned out to be a wrong assumption.

No problem. Wage garnishment is interesting by the way - some states don’t allow it for judgements like this.

It really makes it almost impossible to collect judgements in those states for a determined debtor.

Campaign calls and texts are explicitly exempt from the Do Not Call registry, as they must be.

>as they must be.

Why is there legally allowed spam? Because it's for democracy? I don't care, I don't want to receive calls and texts related to it. Spamming my phone is more likely to make me go out and vote for the opposition out of spite than anything.

Because the government's ability to regulate communications is at its absolute nadir when it concerns political speech regarding an upcoming election. Your best bet to press your case on this policy issue is to invent a time machine and plead your case to James Madison.

You can vote for the opposition if that makes you feel better, but know right now that the opposition, whatever it may be, for any major political office is doing exactly the same thing. Every significant political party has list-making and trading as one of its highest priority goals.

But they cant use automated means. That’s what allows them to blast out texts and calls with a pre-recorded voice.

Generally, there are two subcategories of TCPA claims: DNC (227(c)) and ATDS/prerecorded voice (227(b)). The latter claims are still available against politicians, last I checked. The latter claims regulate the technology that allows blast calls and messaging with pre-recorded messages.

not legal advice

So, someone hired you to try and monetize their inbound spam? How lucrative is that?

Very. There’s a whole industry around it. Folks on record is saying that this law has made more millionaires in the plaintiff’s bar than any other law.

Check out TCPAworld.com if you want to go down the rabbit hole!