Facebook, Inc. v. Duguid

Facebook Inc. v. Duguid
Supreme Court of the United States
Argued December 8, 2020 Decided April 1, 2021
Full case name	Facebook, Inc. v. Noah Duguid, et al.
Docket no.	19-511
Citations	592 U.S. 395 ( more ) 141 S. Ct. 1163 209 L. Ed. 2d 272
Case history
Prior	Motion to dismiss granted, Duguid v. Facebook, Inc., No. 3:15-cv-00985, 2017 WL 635117 (N.D. Cal. Feb. 16, 2017) Reversed and remanded, 926 F.3d 1146 (9th Cir. 2019) Cert. granted, Facebook, Inc. v. Duguid, 141 S. Ct. 193 (July 9, 2020)
Subsequent	Remanded, Duguid v. Facebook, Inc., 847 F. App'x 464 (9th Cir. 2021)
Questions presented
Whether the definition of automatic telephone dialing system in the Telephone Consumer Protection Act of 1991 encompasses any device that can "store" and "automatically dial" telephone numbers, even if the device does not "us[e] a random or sequential number generator".
Holding
To qualify as an "automatic telephone dialing system" under the TCPA, a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator
Court membership
Chief Justice John Roberts Associate Justices Clarence Thomas  · Stephen Breyer Samuel Alito  · Sonia Sotomayor Elena Kagan  · Neil Gorsuch Brett Kavanaugh  · Amy Coney Barrett
Case opinions
Majority	Sotomayor, joined by Roberts, Thomas, Breyer, Kagan, Gorsuch, Kavanaugh, Barrett
Concurrence	Alito (in judgment)
Laws applied
Telephone Consumer Protection Act of 1991 (TCPA)

Facebook, Inc. v. Duguid, 592 U.S. 395 (2021), was a United States Supreme Court case related to the definition and function of auto dialers under the Telephone Consumer Protection Act of 1991 (TCPA) to send unsolicited text messages. In a unanimous decision based on statutory interpretation of the TCPA, the Supreme Court ruled that auto dialers are defined by their function to either store or produce telephone numbers from a random or sequential number generator.

Contents

• Background
• Supreme Court
• Impact
• References
• External links

Background

The Telephone Consumer Protection Act of 1991 (TCPA) was passed to cut down the number of unsolicited calls that consumers were receiving. Among its provisions, the TCPA disallowed the use of automated dialers from being used to contact consumers through services that may cost the consumer money, such as through cell phones or text messaging, with violations accessed and fined by the Federal Communications Commission (FCC). Amendments have been made to the TCPA; relevant to this case was an amendment added in 2015 that exempted automated calls made to pay-for consumer lines for federal debt collection purposes. Since its inception, this "autodialer" provision of the TCPA has been challenged as a violation of free speech rights under the First Amendment of the United States Constitution, but the federal Circuit Courts have generally upheld all challenges to the statute. The 2015 amendment created a new line of arguments to challenge the autodialer statute of the TCPA as it carved out an exception for one type of speech and making the whole statute fundamentally content-based and unconstitutional. ^[1] Concurrent to this case, the judicial proceedings of Barr v. American Assn. of Political Consultants, Inc. , ^[2] one of the direct challenges to the 2015 amendment that sought to invalidate the autodialer statute of the TCPA, began working its way to the Supreme Court. ^[3]

Starting in 2014, Noah Duguid began receiving text messages on his cell phone from Facebook warning him about suspicious account activity, despite the fact he had not set up a Facebook account. Duguid reached out to Facebook to rectify the situation, but Facebook did nothing to stop the messages. Duguid filed a class-action lawsuit in the United States District Court for the Northern District of California in March 2015, asserting that Facebook violated the autodialer statute of the TCPA because the messages he received were being placed by an automatic telephone dialing system (ATDS) and seeking US$1,500 for each message he had received. Facebook objected to the lawsuit, challenging both Duguid's claim that their notification system for logic security was an ATDS, as the messages sent were targeted to specific phone numbers and not the sequential or random number behavior associated with ATDS, and asserting that the autodialer statute of the TCPA with the 2015 amendment was a content-based speech restriction that violated the First Amendment. Due to the latter complaint, the federal government injected itself into the case to seek its dismissal in favor of Facebook as to protect the constitutionality of the TCPA. The judge agreed on the case's dismissal, ruling in Facebook's favor that Duguid had failed to show that Facebook's logic security notification system qualified as an ATDS. ^[4]

Duguid appealed to the United States Court of Appeals for the Ninth Circuit. ^[1] Facebook's defense was again joined by the federal government in interest of protecting the constitutionality of the TCPA statute. Though Facebook reasserted its stance that their notification system was not an ATDS, the Ninth Circuit had precedence from Marks v. Crunch San Diego, LLC ^[5] that an ATDS was not limited to devices that dialed numbers sequentially or randomly, but also include those that could dial stored numbers, and that it categorically fit a device that sends "automated, unsolicited, and unwanted" messages to consumers. ^[6] The Ninth Circuit thus ruled in Duguid's favor in that Facebook had used an ATDS and proceeded then to evaluate the First Amendment challenge to the autodialer statute raised by Facebook. ^[7] In this, the Ninth Circuit determined that the 2015 amendment did add content-based exemptions for free speech and thus was unconstitutional, but was also severable from the rest of the TCPA, leaving in place the autodialer statute. As such, the Circuit Court ruled in favor of Duguid and that Facebook had violated the autodialer statute of the TCPA. ^[8]

Supreme Court

Facebook petitioned to the Supreme Court, seeking judgement on two questions: whether the auto dialer statute was an unconstitutional content-based restriction on free speech, and whether the TCPA definition of an ATDS includes any device that can store and dial stored numbers. In the latter case, Facebook identified that the Ninth Circuit's ruling had established a split circuit with a ruling out of the United States Court of Appeals for the Third Circuit. On July 6, 2020, the Supreme Court issued its judgement in Barr v. American Assn. of Political Consultants, Inc. which affirmed that the 2015 amendment to the TCPA was unconstitutional but was also severable from the TCPA. The Court subsequently certified Facebook's case, but limited the case to the second question on the definition of an ATDS. ^[6]

The Supreme Court held oral arguments on December 8, 2020. In oral hearings, the Justices debated on the statutory interpretation of the law with Duguid's counsel, Bryan A. Garner, one of the experts in the areas of law and grammatical interpretation. ^[9]

The Court issued its unanimous decision on April 1, 2021, reversing the Ninth Circuit's latest ruling and remanding the case for further review. The majority opinion was written by Justice Sonia Sotomayor and joined by all except Justice Samuel Alito, who wrote a concurring opinion. The Court found that under a statutory interpretation of the TCPA, the dialing system used by Facebook did not qualify as an "automatic telephone dialing system", and stated that only systems that "have the capacity either to store a telephone number using a random or sequential number generator", or that "produce a telephone number using a random or sequential number generator" can qualify as an automatic dialer under the TCPA. ^{[10] [11]} Sotomayor wrote that "Congress’ chosen definition of an autodialer requires that the equipment in question must use a random or sequential number generator. That definition excludes equipment like Facebook's login notification system, which does not use such technology." ^[10] Sotomayor further wrote "Congress found autodialer technology harmful because autodialers can dial emergency lines randomly or tie up all of the sequentially numbered phone lines at a single entity. Facebook's interpretation of [the TCPA] better matches the scope of the TCPA to these specific concerns. Duguid's interpretation, on the other hand, would encompass any equipment that stores and dials telephone numbers." ^[11]

Impact

The Supreme Court's ruling was seen to be favorable to the telemarketing industry, since the decision narrowed the definition of an automatic dialing system of which are regulated under the TCPA. As few actual automated dialers in use at the time of the decision incorporate the random or sequential number generator, telemarketers would be able to use other automatic dialing systems that do not meet this definition to engage in their business, according to the National Consumer Law Center. ^[11] The National Consumer Law Center as well as Consumer Reports expressed concern that there would be a significant increase in unwanted telemarketing calls due to this decision. ^[11]

Senator Ed Markey, one of the authors of the TCPA, along with Representative Anna Eshoo, called the ruling "disastrous", as the Congressional intent of the TCPA was "to ban dialing from a database", and announced the same day of the decision that they would be looking to introduce amended legislation to address the Court's decision. ^[11]

Related Research Articles

Telemarketing is a method of direct marketing in which a salesperson solicits prospective customers to buy products, subscriptions or services, either over the phone or through a subsequent face to face or web conferencing appointment scheduled during the call. Telemarketing can also include recorded sales pitches programmed to be played over the phone via automatic dialing.

Mobile phone spam is a form of spam, directed at the text messaging or other communications services of mobile phones or smartphones. As the popularity of mobile phones surged in the early 2000s, frequent users of text messaging began to see an increase in the number of unsolicited commercial advertisements being sent to their telephones through text messaging. This can be particularly annoying for the recipient because, unlike in email, some recipients may be charged a fee for every message received, including spam. Mobile phone spam is generally less pervasive than email spam, where in 2010 around 90% of email is spam. The amount of mobile spam varies widely from region to region. In North America, mobile spam steadily increased after 2008 and accounted for half of all mobile phone traffic by 2019. In parts of Asia up to 30% of messages were spam in 2012.

The Telephone Consumer Protection Act of 1991 (TCPA) was passed by the United States Congress in 1991 and signed into law by President George H. W. Bush as Public Law 102-243. It amended the Communications Act of 1934. The TCPA is codified as 47 U.S.C. § 227. The TCPA restricts telephone solicitations and the use of automated telephone equipment. The TCPA limits companies or debt collectors from calling clients or prospective customers using automatic dialing systems, artificial or prerecorded voice messages, SMS text messages, and fax machines. It also specifies several technical requirements for fax machines, autodialers, and voice messaging systems—principally with provisions requiring identification and contact information of the entity using the device to be contained in the message.

United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), was a federal criminal prosecution filed in the United States District Court for the Central District of California in Los Angeles against X-Citement Video and its owner, Rubin Gottesman, on three charges of trafficking in child pornography, specifically videos featuring the underaged Traci Lords. In 1989, a federal judge found Gottesman guilty and later sentenced him to one year in jail and a $100,000 fine.

Olmstead v. United States, 277 U.S. 438 (1928), was a decision of the Supreme Court of the United States, on the matter of whether wiretapping of private telephone conversations, conducted by federal agents without a search warrant with recordings subsequently used as evidence, constituted a violation of the target’s rights under the Fourth and Fifth Amendments. In a 5–4 decision, the Court held that the Constitutional rights of a wiretapping target have not been violated. This decision was overturned by Katz v. United States in 1967.

The Junk Fax Prevention Act (JFPA) of 2005, Pub. L.Tooltip Public Law (United States) 109–21 (text)(PDF), 119 Stat. 359 (2005), was passed by the United States Congress and signed into law by President George W. Bush on July 9, 2005. The law amends the Communications Act of 1934, significantly altering some aspects of prior amendments made by the Telephone Consumer Protection Act of 1991 and the CAN-SPAM Act of 2003 as they relate to the issue of junk fax.

Voice broadcasting is a mass communication technique, begun in the 1990s, that broadcasts telephone messages to hundreds or thousands of call recipients at once. This technology has both commercial and community applications. Voice broadcast users can contact targets almost immediately. When used by government authorities, it may be known as an emergency notification system.

A robocall is a phone call that uses a computerized autodialer to deliver a pre-recorded message, as if from a robot. Robocalls are often associated with political and telemarketing phone campaigns, but can also be used for public service or emergency announcements. Multiple businesses and telemarketing companies use auto-dialing software to deliver prerecorded messages to millions of users. Some robocalls use personalized audio messages to simulate an actual personal phone call. The service is also viewed as prone to association with scams.

The Stored Communications Act is a law that addresses voluntary and compelled disclosure of "stored wire and electronic communications and transactional records" held by third-party Internet service providers (ISPs). It was enacted as Title II of the Electronic Communications Privacy Act of 1986 (ECPA).

American Booksellers Foundation for Free Expression v. Strickland, 560 F.3d 443, is a decision of the Sixth Circuit Court of Appeals involving a constitutional challenge—both facially and as-applied to internet communications—to an Ohio statute prohibiting the dissemination or display to juveniles of certain sexually-explicit materials or performances. The Sixth Circuit panel declined to resolve the constitutional issue but, instead, certified two questions to the Ohio Supreme Court regarding the interpretation of the statute. The Ohio Supreme Court answered both questions affirmatively and placed a narrowing construction on the statute. Since the Ohio Supreme Court's decision, the Sixth Circuit has not reheard the case.

Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), is a decision of the Supreme Court of the United States concerning the constitutionality of funding restrictions imposed by the United States Congress. At issue were restrictions on the Legal Services Corporation (LSC), a private, nonprofit corporation established by Congress. The restrictions prohibited LSC attorneys from representing clients attempting to amend existing welfare law. The case was brought by Carmen Velazquez, whose LSC-funded attorneys sought to challenge existing welfare provisions since they believed that it was the only way to get Velazquez financial relief.

Cahaly v. LaRosa is a lawsuit filed in federal court in 2013 that challenged South Carolina's law prohibiting most types of unsolicited consumer and political calls made by Automatic Dialing and Announcing Devices (ADAD), also known as "robocalls". The plaintiff won in U.S. district court in June 2014, and the Fourth Circuit Court of Appeals upheld that ruling in part, while vacating part in August 2015.

Heffernan v. City of Paterson, 578 U.S. ___ (2016), was a United States Supreme Court case in 2016 concerning the First Amendment rights of public employees. By a 6–2 margin, the Court held that a public employee's constitutional rights might be violated when an employer, believing that the employee was engaging in what would be protected speech, disciplines them because of that belief, even if the employee did not exercise such a constitutional right.

Campbell-Ewald Co. v. Gomez, 577 U.S. ___ (2016), was a case in which the Supreme Court of the United States clarified whether a case becomes moot when a party provides a settlement offer that satisfies a named plaintiff's claims in a class action suit and whether a government contractor is entitled to "derivative sovereign immunity".

Ringless voicemail, also called a voicemail drop, is a method in which a pre-recorded audio message is placed in a voicemail inbox without the associated telephone ringing first. This practice is commonly associated with spamming and debt collection services.

Minnesota Voters Alliance v. Mansky, 585 U.S. ___ (2018), was a landmark decision of the US Supreme Court concerning the constitutionality of governmental speech restrictions in a polling place venue. The case challenged a century-old Minnesota law that prevents voters from wearing clothing or items considered political while voting. While the Supreme Court previously affirmed that political campaigning near polling places may be restricted, the Minnesota law was challenged on being overbroad and violation of free speech rights under the First Amendment. The case's decision was issued on June 14, 2018, with the Court finding 7–2 that the Minnesota law was overbroad of what could be considered "political" speech, violating free speech rights and deemed unconstitutional.

Sergei Lemberg is a consumer rights attorney, practicing since 2006. He is known for a United States Supreme Court case defending consumers from autodialers under the Telephone Consumer Protection Act of 1991 to send unsolicited text messages. He filed the first known lawsuit to involve an autonomous car crash, and others.

Barr v. American Assn. of Political Consultants, Inc., 591 U.S. ___ (2020), was a United States Supreme Court case involving the use of robocalls made to cell phones, a practice that had been banned by the Telephone Consumer Protection Act of 1991 (TCPA), but which exemptions had been made by a 2015 amendment for government debt collection. The case was brought by the American Association of Political Consultants, an industry trade group, and others that desired to use robocalls to make political ads, challenging the exemption unconstitutionally favored debt collection speech over political speech. The Supreme Court, in a complex plurality decision, ruled on July 6, 2020, that the 2015 amendment to the TCPA did unconstitutionally favor debt collection speech over political speech and violated the First Amendment.

Van Buren v. United States, 593 U.S. ___ (2021), was a United States Supreme Court case dealing with the Computer Fraud and Abuse Act (CFAA) and its definition of "exceeds authorized access" in relation to one intentionally accessing a computer system they have authorization to access. In June 2021, the Supreme Court ruled in a 6–3 opinion that one "exceeds authorized access" by accessing off-limit files and other information on a computer system they were otherwise authorized to access. The CFAA's language had long created a circuit split in case law, and the Court's decision narrowed the applicability of CFAA in prosecuting cybersecurity and computer crime.

Spence v. Washington, 418 U.S. 405 (1974), was a United States Supreme Court case dealing with non-verbal free speech and its protections under the First Amendment. The Court, in a per curiam decision, ruled that a Washington state law that banned the display of the American flag adorned with additional decorations was unconstitutional as it violated protected speech. The case established the Spence test that has been used by the judicial system to determine when non-verbal speech may be sufficiently expressive for First Amendment protections.

References

External links

• Text of Facebook, Inc. v. Duguid, 592 U.S. 395(2021) is available from:  Google Scholar    Justia    Oyez (oral argument audio)    Supreme Court (slip opinion)