FCC Crackdown on Robocalls Would Also Target Anonymous Communication

​“Hi … Stacy … This is the Social Security Administration. We will be suspending your Social Security Number because we found some suspicious activities on your Social Security Number …
 
“If we do not hear from you, we will have to file a case against you and your assets will be frozen. Please call back immediately.”
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The above transcript is a scam – the Social Security Administration never sends phone messages like this – from a real robocall script posted in a warning from the Federal Trade Commission. Even when such calls are not fraudulent, they are always intrusive and bothersome.
 
Little wonder that Americans are understandably frustrated by scam calls, spoofed numbers, and relentless solicitations that invade daily life and often pressure people into buying products, disclosing sensitive information, or taking actions they otherwise would not take. Businesses do not have a First Amendment right to anonymously bombard consumers with unwanted commercial solicitations. Reasonable regulation of robocalls is both necessary and constitutional.
 
At the same time, some critics worry that aspects of the FCC’s proposed response could go too far and unintentionally burden lawful speech and legitimate anonymous communication. Mike Pearl at Gizmodo reports that the FCC’s proposed cure “might be worse than the disease” when it comes to broader civil liberties concerns.
 
The commission reportedly plans to require telecom providers to adopt stringent “Know Your Customer” rules. According to telecom law firm Wiley, the proposed changes could require customers to present government IDs and provide physical addresses, legal names, and alternate phone numbers. “High-volume” customers could face additional scrutiny, including disclosure of IP addresses and statements regarding the intended use of their phones.
 
Critics are particularly troubled by the idea that large-volume callers could be required to explain their “intent” before obtaining access to a communications device or service. This may not be a sketchy outfit selling solar panels that don’t exist or insurance you don’t need. It could be a public interest organization seeking to generate grassroots support to change a law, a candidate seeking to reach voters, or some other expression that impacts core First Amendment rights. While the government collects information related to certain types of political advocacy for campaign finance reporting, this broadscale exploration of “intent” expands the government’s interest from campaign finance law into the monitoring and oversight of viewpoints.
 
There is an important distinction between regulating anonymous commercial robocalls and preserving the ability of ordinary people to communicate anonymously for lawful reasons. Anonymous commercial solicitations can legitimately be restricted because they are intrusive and frequently deceptive. The government certainly has a legitimate interest in tracking behavior – such as cyberstalking, child pornography, and extreme forms of harassment – that is clearly unlawful. But anonymous communication itself is legal. It has long played an important role in American civic life (consider The Federalist Papers). Political advocacy, whistleblowing, journalism, religious outreach, and unpopular or dissenting speech have often relied on the ability to communicate without fear of retaliation or public exposure.
 
Americans generally do not have to justify in advance why they wish to speak, organize, advocate, or associate with others. Requiring telecom providers to collect statements about intended use risks creating vague standards that could chill lawful speech or discourage controversial but constitutionally protected expression.
 
As Ken Macon wrote for Reclaim the Net, the FCC’s proposal could create “an identity-verification regime covering one of the last semi-anonymous communication tools available to ordinary Americans.” While the government plainly has authority to target fraud, scams, and abusive robocalling practices, regulations should be carefully tailored so that they do not burden lawful anonymous speech protected by the First Amendment.
 
The challenge is finding the right balance. Americans deserve meaningful protection from robocalls and phone scams. Regulators should aggressively pursue fraudsters and deceptive telemarketers. But efforts to stop bad actors should avoid creating broad rules that sweep in lawful communications or require citizens to disclose and justify their intended speech activities in advance.
 
We can combat robocalls without undermining longstanding American principles protecting anonymous expression and freedom of association.

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