Are you there, voter? It’s me, Emily
OCTOBER 28, 2020
Yes, that political campaign text message is from a real person. At least, that’s what it says.
For months, Californians have been bombarded with text messages from multiple political campaigns pleading for money and votes. But many recipients question whether these texts are sent by bots or are even legal. As with so much law surrounding voting issues, the answer isn’t entirely clear.
Under the Telephone Consumer Protection Act of 1991, sending robocalls or using automatic telephone dialing systems (ATDS) to send unsolicited calls or texts is illegal. Recipients must give “express consent” before being contacted by robocalls or texts. That means recipients must be aware of the text and any charges associated with it before agreeing to receive more.
However, the Federal Communications Commission, which regulates the act, says there is one way political campaign text messages are exempt from that rule. A real person must manually dial the phone number–or, in this case, hit “send.” “So when you get those texts saying, ‘Hey, it’s Emily with this campaign,’ it’s a person,” said Emily DaSilva, the CEO of Outvote, an app that assists campaigns with text banking.
Text banking is the new equivalent of traditional phone banking. Campaigns create databases using voter registration files and recruit volunteers who hit “send,” again and again, to reach individual voters. Typically, the language of the texts doesn’t change, although senders may add their own names to personalize the communication.
This avoids the ban on automatic telephone dialing systems and allows campaigns to reach a broader base of voters. “If I used software to create 50 different lists, and I gave those 50 different lists out for hand dialing, those calls are not in an ATDS,” said Chris Hoofnagle, a professor of law and technology at UC Berkeley Law.
Easy as it is to work around the law, breaking it seems to be popular with both parties. Campaigns by President Trump, Michael Bloomberg and Bernie Sanders, as well as several regional candidates, have all been hauled into court for violating the TCPA and using ATDS.
When it comes to politics, the FCC doesn’t like to get involved. So when recipients bring class action lawsuits, it takes “pressure off of the FCC from appearing too political,” says Hoofnagle. It’s not the candidate getting sued, he adds, it’s the campaign, which might end up settling with the plaintiffs for a small sum.
Steven Rascón is a reporter at UC Berkeley’s Graduate School of Journalism.