A few days ago, I noted that Ben Hall’s campaign was planning on blasting the cell phones of over 100,000 Houstonians with text message updates of the campaign. Further, it appeared that this would be done without the consent of those contacted, in violation of the law.
Shortly after this occurred, KRIV noted that one such recipient of these messages, a non-Houston resident named Joe Shields, had initiated a Federal, class-action lawsuit against Hall for the messages. They key dispute boiled down to whether Shields, and many others like him, had actually “opted-in” or “consented” to the text messages, as is required under Federal Law.
Mike Morris at the Houston Chronicle also wrote upon this topic extensively this morning, and I will highlight a few paragraphs in particular that deal with the relevant laws:
Federal rules prohibit unsolicited, prerecorded sales calls to landline phones, but exempt political calls of that type, known as “robocalls.” The rules for cellphones are more restrictive: To receive cellphone calls or text messages a person must give “express prior consent” or the situation must be an emergency, said Richard Alderman, dean of the University of Houston Law Center.
Politikast gathers some of its own user information and buys the rest from third parties such as Netflix and FreeCreditReport.com, according to an online presentation about its work. Alderman said he would be more comfortable if voters opted in directly with a campaign – texting a number announced at a rally, or entering their cell number on a campaign website, as often is done – rather than having the “opt in” come from an unrelated website.
“To legally send you text messages based on your consent, they must prove that you expressly agreed to receive the messages,” Alderman said. “I do not believe a broad consent satisfies the statutory requirement that the person ‘expressly agree.'”
These conditions are in stark contrast to what the Hall campaign uses as their cover. Hall, speaking through press secretary Julia Smekalina, notes that if the individuals had opted into receiving political messages at some point in the past, it would suffice. Even if the recipients had not expressly opted into Hall’s campaign specifically.
Morris then interviewed a lawyer on this topic thereafter, who felt that the actions were not especially justified under the law.
For the record, Shield, the recipient of the text message who filed the lawsuit, lives in a suburb (Friendswood) and thus will not even be eligible to vote in the election. From what I understand, most recipients of these text messages were not Houston residents as well. Just like the Facebook page troubles, this is an expensive disaster for the campaign that will not engage any undecided voters.