communication technology: Why your cell phone is ripe for spam - Yes

In the late 1970s, the cutting edge of communications technologies was the autodialer, a machine capable of calling up scores of people in one shot, with little human involvement. It was innovative, and annoying. By the early ?90s, Congress had had enough. ?Computerized calls,? railed South Carolina Democrat Fritz Hollings from the Senate floor, ?are the scourge of modern civilization.?

And so, Congress legislated. But the focus was on commercial calls. Mindful of the free flow of speech and ? let?s be honest ? interested in self-preservation, lawmakers exempted political calls from its?Telecommunications Consumer Protection Act. But Congress decided that some phones were too sensitive to get even autodialed political calls: those in hospitals, those designated for emergency purposes ? and those in our pockets.

But here we are, some two decades later, and voters across the country are getting political text messages they never asked for.

To reiterate, those voters never asked for these texts. And there was no real way to trace them back to any actual human. So, given congressional action in the ?90s, wasn?t that illegal? Wasn?t the scourge ended then, especially because federal regulators later decided that text messages count as a ?call? when it comes to this sort of thing?

No. And here?s why: These text messages aren?t actually, technically text messages as we normally think of them. They?re more like emails that show up as texts. And that introduces a loophole through which these texts are arriving.

There?s an another way to deliver text to a phone that most of us don?t use: sending an email to an address made up of a cell phone number and what?s called an SMS gateway, like @txt.att.net. To the person getting the message, it looks much like a text. To the person sending it, though, it feels like an email.

And if it?s the latter, the rules are different. Here?s where another piece of legislation comes into the picture. (Buckle up, we?re taking another brief trip through congressional history.)

In 2003, Congress passed the CAN-SPAM Act. Outside Congress, the bill was largely derided, partly because it formally validated some of the practices email users found most bothersome. More to our point, Congress once again exempted political communications from even those restrictions. So, if our spam texts are really?emails, then, well, you can see how they slip through both congressional attempts to protect citizens from messages they?d rather not get.

So, that leaves us with this, then: Unsolicited text messages via email are doubtlessly annoying and are of questionable legality. Who can step in and clear up this mess?

Maybe the guy who started it. As the creator of the Obama campaign?s mobile program in the 2008 race, Scott Goodstein put the marriage of cell phones and politics on the national stage. Recall the much-watched texts that went out one early Saturday morning in late August announcing that ?Barack has chosen Senator Joe Biden to be our VP nominee? and powered by the work Goodstein had crafted for the campaign.

But now, in 2012, Goodstein and his Washington, DC communications firm Revolution Messaging is trying to fight back against those it sees as corrupting the medium it has helped to build. Goodstein and his crew are asking the Federal Communications Commission to step in, quickly, and say loudly and clearly that the sort of texts seen in Wisconsin, Virginia and Michigan just aren?t all right. (The FCC acknowledged it had received the petition but declined to offer further comment.)

One of Goodstein?s prime targets is Gabriel Joseph, president of a northern Virginia firm called ccAdvertising. At a recent industry conference, Goodstein called out Joseph as a particularly bad actor, as detailed in an article in?Slate. ?I stand up and do the right thing,? says Goodstein in a phone call, of abiding by the opt-in, short code-only standards of the mobile marketing field. ?But now the right wing is adopting bad tactics.

For Joseph?s part, he opted out of commenting on the record, instead pointing me to a ccAdvertising press release praising an FCC commissioner?s reaffirmation that most call restrictions are on commercial calls only ? rather beside the point, given that the commission has long affirmed that cell phones are something special and are treated that way.

But his ccAdvertising website is more revealing. There, the company celebrates its use of email-to-text technologies, as well as what it describes as ?artificial intelligence calls.?

The first technique buys Joseph some distance from, as discussed, the charge that it?s really sending texts in the first place. The second provides some wiggle room around whether its communications are of the automated and blast nature contemplated by Congress back in the ?9os. Those distinctions don?t matter much when it comes to the experience of the end user.

Whether those distinctions matter much at all is up to federal regulators.

And while it?s tempting to dismiss this situation as Goodstein versus Joseph, two mobile vendors fighting over a profitable and growing pie, what?s at issue is really the future of mobile political communications. To make good decisions about that future, the powers-that-be are going to have to grapple with what cell phones mean and will mean to Americans in the 21st century.

One issue: cost. It?s a quirk of the U.S. telecom system that Americans get charged for incoming texts and phone calls on our mobile devices. (Not to get too far in the weeds, but that has to do with the fact that our landlines and cell phones share a common pool of area codes ? and that our phone company carriers freely nickel and dime us.) A study of the contemporaneous record reveals that Congress worried about end-user cost 20 years ago.

Today, many Americans, though not all, pay one set price for unlimited text messages each month. If I?m not paying to get a text I don?t want, what does that do to my ability to complain about it? Does it make it go away?

Some practitioners of email-to-text will no doubt argue that, yes, it does, and end the discussion there. But that?s a shallow reading of congressional intent.

Keep in mind that text messages are perhaps the most intimate communications technology yet invented. That?s a proper public policy concern. ?Junk mail can be thrown away,? said Senator Larry Pressler of South Dakota during the autodialer debate. ?Television commercials can be turned off. The telephone demands to be answered.? Text messages don?t even bother to ask. They pop up with no chance for the recipient to object.

What?s more, in the ?90s Congress took into consideration that with robocalls there was no one on the other end of the line for a peeved call-getter to yell at. The same dynamic is at work with a text that arrives out of the ether.

And then there?s a broader civic concern: the medium?s quality as a method for political communications. Forget 2008?s mass Joe Biden text. Today, that exercise would rate as old hat, if not also a bit of a gimmick.

Campaigners are finding new and creative ways to tap into the power of mobile, from outreach to field organizing to fundraising. A recent text to Romney?s subscriber list, for example, offered a chance for a sneak peek at his first general election ad. And shortly after Obama came out in favor of same-sex marriage, his campaign hit his opted-in list with a note reading, ?If you?re proud of our president, get his back by pitching in today,? tied to the campaign?s innovative one-click fundraising system. Mobile is intimate, immediate and largely trusted.

?Texting,? said Romney?s digital director?recently, ?is the cleanest channel available to engage with supporters.? But it?s at real risk of being polluted.

Of course, this being the United States, anything done to restrict the freedom of speech, especially political speech, can?t and shouldn?t be done lightly. But the courts have made it clear that there are some time, place, and manner restrictions that are useful without being too onerous. That has been true when it comes to automated calls. In 1995, a U.S. Court of Appeals found that a Minnesota restriction on robocalls was acceptable, even when it prohibited a candidate for governor from contacting voters.

The candidate, one Richard Van Bergen, found the court, had ?ample alternative channels? for getting his message out. Human-to-human phone banking is still an option. So, indeed, is email. Online operatives will tell you that email has proved to be an enormously successful way of communicating with citizens, especially when it comes to raising money. And as we?ve seen, it?s little restricted.

To hear Goodstein tell it, what?s at stake is our democracy itself. ?A lot of my friends don?t like it when I use the language of ?voter suppression,?? he tells me. ?But that?s what this is.? Maybe. But things don?t have to get that dire for it to make sense for Washington to clarify the law here.

And the FCC should. The Federal Election Commission, besides being focused on campaign finance issues, moves especially slowly; that body has, for years, been considering the question of how you go about fitting disclaimers in tiny digital spaces where character count is key. Important, perhaps, but with less immediate impact on elections than unwanted texts.

For its part, the FCC likely?won?t take up the question of email-to-texts unless there?s more public clamor for it to do so. It?s also not likely to do it once election season really heats up. Which means the window for doing it at all is only open for a short while longer.

And if it closes without anything changing ? well, expect more unpleasant buzzing.

PHOTO:?Illustration picture shows Nokia logo on used cell phones, in Zurich, April 30, 2012. ? REUTERS/Christian Hartmann

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