Robocall

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. Some robocalls use personalized audio messages to simulate an actual personal phone call.

Canada

Main article: Robocall scandal

Robocalls can be and are legitimately used by mainstream political parties in Canada to reach voters. Controversy surrounded the use of robocalls during the Canadian federal election, 2011, leading Elections Canada and the Royal Canadian Mounted Police to investigate claims that robocalls were used in an attempt to dissuade voters from casting their ballot by falsely telling them their poll stations had changed locations. Elections Canada traced the origin of the automated calls to a disposable cellphone registered to a fictional name "Pierre Poutine" at a phony address from 450 area code of Joliette, Quebec, and issued a subpoena to the cellphone provider that produced a list of outgoing calls from the same number. One of the calls was to the toll-free number used by customers of 2call.ca, a subsidiary of Edmonton-based Internet Service Provider RackNine, to phone in and record their outgoing messages. RackNine has a contract not to do business with any party other than the Conservative Party. The burner cell phone belonging to "Pierre Poutine" was used to contact the owner of Racknine at his personal unlisted number and gave the name "Pierre Jones". This burner phone initiated a series of automated robocalls mostly in Guelph but with a few dozen in other ridings, that targeted mostly non-Conservative voters with false voting location changes. Some voters attended what they had been led to believe were their voting locations, and sometimes destroyed their voter registration cards in anger.

In November 2011, the investigator served RackNine with a production order for records and had the account holder associated with the bogus calls quickly identified. Investigators have also examined the Conservative Party's CIMS voter database and showed that "Pierre Poutine" used the Conservative voter database to select who to call. Investigators have blank entries for one specific login, leading to speculation that evidence has been deleted. PayPal has also surrendered their records to investigators since "Pierre Poutine" has used a PayPal account to pay for the bill for the automated calls. The cost for these May 2, 2011, calls was $162.10, Elections Canada said in court filings. This expenditure was never reported to Elections Canada, as required for legitimate political spending.

Prime Minister Stephen Harper and the Conservative Party of Canada have denied any knowledge or involvement. A Conservative party staffer resigned soon after the scandal was reported but has since come forward stating that he was not involved. Elections Canada has made a statement and reported to Parliament, that the fraud was extensive, affecting 200 ridings in all ten provinces plus Yukon Territory. The Council of Canadians, a left of centre activist group, has asserted that the robocalls may have been enough to swing the result by 4%, enough to win a number of ridings in very close races. A court challenge has been initiated by this group to overturn the results of the election in seven ridings, and initiate by-elections for the respective seven House of Commons seats.

After reviewing the investigation of the "Pierre Poutine" scandal in 2013, Federal Court Judge Richard Mosley found that election fraud had taken place in six ridings across the country but found no evidence that the Progressive Conservative party or candidates were involved. He also did not find sufficient evidence to support charges in ridings other than Guelph. As well, he indicated that the "robocalls" had not affected the outcome of the 2011 election in any riding.

After a lengthy investigation of the circumstances of the scandal, Michael Sona, the former director of communications for the Progressive Conservative candidate in the Guelph (Ontario) riding was charged on June 2, 2014 with "wilfully preventing or endeavouring to prevent an elector from voting". Sona was found guilty on November 14, 2014 and was sentenced to nine months in jail plus twelve months of probation. Sona was released from jail on bail after serving twelve days, pending his appeal of the sentence. However, Sona did not appeal the conviction. During the trial, Justice Hearn agreed with the Crown allegation that Sona had likely not acted alone.

United States

Political calls

Robocalls are made by many political parties in the United States, including but not limited to both the Republican and Democratic parties as well as unaffiliated campaigns, 527 organizations, unions, and individual citizens. Political robocalls are exempt from the United States National Do Not Call Registry. The Telephone Consumer Protection Act of 1991 (TCPA) and Federal Communications Commission (FCC) regulations prohibit anyone (including charities, politicians and political parties) from making robocalls to cell phone numbers without the recipients' prior consent. The FCC permits non-commercial robocalls to most residential (non-cellular) telephone lines.

The federal Telephone Consumer Protection Act of 1991 (TCPA) regulates automated calls. All robocalls, irrespective of whether they are political in nature, must do two things to be considered legal. Federal law requires all telephone calls using pre-recorded messages to identify who is initiating the calls and include a telephone number or address whereby the initiator can be reached.

Some states (23 according to DMNews) have laws that regulate or prohibit political robocalls. Indiana and North Dakota prohibit automated political calls. In New Hampshire, political robocalls are allowed, except when the recipient is in the National Do Not Call Registry. Many states require the disclosure of who paid for the call, often requiring such notice be recorded in the candidate's own voice. The patch-work of state laws regulating political robocalls has created problems for national campaigns.

California

California prohibits any robocall unless there is an existing relationship. The California Public Utilities Code §§ 2871 et seq. holds political campaigns to the same rules as other organizations making calls with an automatic dialing–announcing device. The guidelines are:

• A person must come on the line before the recording to identify the nature of the call and the organization behind it.
• The recipient of the call must consent to the recording being played.
• The call must be disconnected from the telephone line as soon as the message is over or the recipient hangs up, whichever comes first.

Indiana

Indiana requires introduction of any prerecorded message by a live operator; the message may only be played if the called party grants permission.

Missouri

In September 2008, Missouri Attorney General Jay Nixon alerted political campaigns in Missouri that his office would aggressively enforce federal rules (Telephone Consumer Protection Act of 1991) requiring calls to include identifying and contact information.

North Carolina

Robocalls were made during the 2008 North Carolina Democratic primary, targeting African-American voters in the days leading up to the primary in late April 2008, which essentially told registered voters that they were not registered. According to NPR and Facing South, these calls were made by the organization "Women's Voices Women Vote." Voters and watchdog groups complained that it was a turnout-suppression effort, and the state Attorney General Roy Cooper ordered them to stop making the calls. The group stopped the calls and no further legal action was taken.

South Carolina

Main article: Cahaly v. LaRosa

South Carolina had a law prohibiting most types of unsolicited consumer and political robocalls, but in 2010, campaign consultant Robert Cahaly was arrested by the South Carolina State Law Enforcement Division, being charged for making illegal robocalls to six state house districts. The automated opinion polling system asked whether U.S. Speaker Nancy Pelosi should be invited to campaign with six Democratic candidates for the South Carolina Legislature. Cahaly was arrested despite having a written opinion from the state attorney general stating that he had acted within the law. The charges were subsequently dismissed in October 2012. After the charges were dropped, Cahaly filed a suit against state officials, claiming his constitutional right to free speech had been violated. U.S. district court judge, Michelle Childs ruled that South Carolina's anti-robocall statute was a content-based restriction on speech and therefore unconstitutional.

Proposed additional regulations

California Senator Dianne Feinstein (D-CA) introduced the Federal Robocall Privacy Act in February 2008 at Senate Committee on Rules and Administration hearing. The Act proposed to: 1) Limit robo calls to no more than 2 a day by any one candidate, 2) mandate that candidates have accurate caller ID numbers displayed, 3) mandate that the disclosure of who is paying for the call occur at the start of the call, rather than at the end of the call, 4) mandate that the time of the call occur not before 8 AM or after 9 PM. The bill was read twice, and since it received no further action during the session, it did not become law. Similar bills have been submitted in subsequent years without success.

Shaun Dakin, CEO of Citizens for Civil Discourse, testified at the hearing and described how robo calls impact the lives of voters across the nation. He also wrote an op-ed for the Washington Post calling for a Voter Privacy Bill of Rights in which all voters would have the right to opt out of political robocalls if they did not wish to receive them.

Dakin, a former John Kerry campaign worker, set up a website called Stoppoliticalcalls.org and claimed to allow citizens to opt out of receiving robocalls. However, there is no guarantee that the registry will stop the calls and since there is no law that supports the database it is essentially an Internet petition. As mentioned above, the Robocall Privacy Act failed to become law and neither bill had provisions for a 'do not call registry' for stopping robocalls.

Despite heavy media publicity of the database, only seven politicians in the United States voluntarily pledged to respect the list during the 2008 general election cycle. Of those seven, only three made it to the general election and only Virginia Foxx (R) was successfully reelected in November 2008.

On September 1, 2009, a new regulation of the Federal Trade Commission went into effect, banning most robocalls without written opt-in from the receiver. Political campaigns, surveys, charities, debt collectors, and health care providers are exempt, as are calls to businesses. Calls from banks, insurers, and phone companies are out of the jurisdiction of the FTC. In situations under federal jurisdiction, the federal law will supersede a slightly less restrictive law in the state of California.

Reverse robocalling

In December 2011 reporting described "robocall revenge" where voters can turn the table and send robocalls to politicians and others using online website tools.

Enforcement

2015 Federal Communications Commission

2015 Federal Communications Commission Declaratory Rulings

After receiving more than 215,000 consumer complaints in 2014 alone, the U.S. Federal Communications Commission (FCC) strengthened and clarified its regulations protecting consumers from unwanted robocalls and spam emails and texts. The Commission issued a package of declaratory rulings in June 2015 that clarified the provisions of the Telephone Consumer Protection Act (TCPA) that deal with prerecorded and artificial voice calls received by residential wireline phones as well as wireless numbers.

2009 Federal Trade Commission action against an illegal robocall provider

In May 2009, in response to numerous complaints, the Federal Trade Commission asked a federal court to shut down a telemarketing campaign that has been bombarding U.S. consumers with hundreds of millions of allegedly deceptive robocalls in an effort to sell them vehicle service contracts under the guise that they are extensions of original vehicle warranties. The FTC took action against both the promoter of the phony extended auto warranties, as well as the telemarketing company that it hired to carry out its illegal, deceptive campaign. The FTC contends that the companies are operating a massive telemarketing scheme that uses random, pre-recorded phone calls to deceive consumers into thinking that their vehicle's warranty is about to expire. Consumers who respond to the robocalls are pressured to purchase extended service contracts for their vehicles, which the telemarketers falsely portray as an extension of the manufacturer's original warranty. According to papers the FTC filed with the court, however, the robocalls have prompted tens of thousands of complaints from consumers who are either on the United States National Do Not Call Registry or asked not to be called. Five telephone numbers associated with the defendants have generated a total of 30,000 Do Not Call complaints. Consumers received the robocalls at home, work, and on their cell phones, sometimes several times in one day. Businesses, government offices and even 911 dispatchers have been subjected to the calls.

Those who answer the pre-recorded calls hear a message telling them that their vehicle warranty is about to expire and that they should "extend coverage before it is too late." They are told to "press one" to speak to a "warranty specialist." The "specialists" then mislead consumers into believing that their company is affiliated with the dealer or manufacturer of the consumer's vehicle. They try to sell consumers a service contract for between $2,000 and $3,000, which they falsely portray as an extension of the vehicle's original warranty. The seller of extended auto warranties sued by the FTC allegedly took in more than $10 million on the sale of these deceptively marketed service contracts. In their robocalls, the companies dialed every phone number within a particular area code and prefix sequentially, without knowing whether the consumers called were motorists or owned motor vehicles, or whether those consumers' numbers were on the Do Not Call Registry. Consumers who asked that the calls be stopped often were met with "abusive behavior" or were simply hung up on, according to the papers filed with the court. Some of the defendants used offshore shell corporations to try to avoid scrutiny, and a top officer in the telemarketing company bragged to prospective clients that he could operate outside the law without any chance of being caught by the FTC, the papers stated. This defendant also claimed that he makes 1.8 million dials per day and that he had done more than $40 million worth of dialing for extended warranty companies, including one billion dials on behalf of his largest client, according to the court papers filed by the FTC. In addition to the robocalls, the FTC charged that the company selling the warranties mails out deceptive postcards to consumers, warning them about the imminent expiration of their auto warranties. The postcards are designed to mislead consumers into believing that they are being contacted by their dealer or manufacturer, and the postcards offer consumers the chance to "renew" their original warranties. On May 15, 2009 U.S. District Judge John F. Grady issued the temporary restraining order against the defendants Transcontinental Warranty Inc. and Voice Touch Inc. Grady's orders also applied to Transcontinental CEO and President Christopher Cowart, Voice Touch executives James and Maureen Dunne, Voice Touch business partner Network Foundations LLC and Network Foundations executive Damian Kohlfeld. Besides ordering a halt to the automatic telephone sales calls, Grady's order froze the assets of the two companies. The FTC alleged in its complaints that the calls were part of a deceptive scheme and asked the court to assure the assets will not be lost in case they might be needed to repay consumers who have been victimized. The FTC isn't immediately seeking civil fines against the companies but may do so later, agency officials said. Attorneys general in Arkansas, Indiana and Missouri have taken similar actions over calls offering extended warranties on automobiles.

See also

• Autodialer
• Telemarketing
• Voice broadcasting

External links

• Stopping Fraudulent Robocall Scams: Can More be Done?: Hearing before the Subcommittee on Consumer Protection, Product Safety, and Insurance of the Committee on Commerce, Science, and Transportation, United States Senate, One Hundred Thirteenth Congress, First Session, July 10, 2013