San Francisco Chronicle: Court says class-action suit over Facebook robocalls may move forward

Court says class-action suit over Facebook robocalls may move forward

By Bob Egelko, June 13, 2019

A federal appeals court has reinstated a class-action lawsuit against Facebook for allegedly using an auto-dialing system to send unwanted robocalls, a practice barred by federal law.

The Ninth U.S. Circuit Court of Appeals in San Francisco rejected Facebook’s arguments that the ban did not apply to the text messages its equipment sent to a non-Facebook user, and that the law, passed in 1991, violated freedom of speech.

The court went a step further Thursday by declaring unconstitutional a 2015 congressional amendment that allowed uninvited robocalls whose purpose was to collect a debt owed to, or guaranteed by, a federal agency.

“An unconsented, non-emergency robocall thoroughly invades personal and residential privacy, whether it is placed to collect government debt or for some other purpose,” Judge M. Margaret McKeown said in the 3-0 ruling.

She said the exemption — which would include auto-dialed calls to collect mortgages or student loans backed by the government — was unconstitutionally based on the content of the calls. Another federal appeals court, in Richmond, Va., reached the same conclusion in a separate case in April.

Facebook also argued that its text messages, warning customers that someone had accessed their account, were not meant to be prohibited by a law against unwanted robocalls. But the court said the purpose of the law — “protecting privacy by restricting unsolicited, automated telephone calls” — applies to the texts cited in the lawsuit, which somehow were sent to the cell phone of a non-Facebook member.

The ruling is “an important decision that protects consumer privacy,” said Sergei Lemberg, lawyer for the plaintiff, Noah Duguid of Stevensville, Mont. The case was heard by a judge in San Francisco because Facebook is headquartered in Menlo Park.

There was no immediate comment from Facebook or its lawyers. In court filings, the lawyers said the 1991 law was not intended “to hold companies like Facebook liable to the tune of potentially hundreds of millions of dollars for their efforts to protect their users’ privacy and security.”

Duguid said he received the first text messages in January 2014, saying someone had accessed his Facebook account, an account that did not exist. He said he emailed a complaint to Facebook three months later and got an automated response. In October 2014, he said, he replied to another message by texting the word “off,” and Facebook responded that its texts were now off, but the messages resumed later that day.

His suit seeks damages of $500 per call, an amount specified in the law, for anyone who had not given Facebook their cell phone numbers but received unsolicited messages in the four years before April 2016, when he filed the current version of his suit.

U.S. District Judge Jon Tigar of San Francisco dismissed the suit, agreeing with Facebook that its phones did not meet the law’s definition of an auto-dialer. The appeals court disagreed, saying the Facebook system described in the suit — using equipment that can store phone numbers and then dial them automatically, in numerical order or at random — was covered by the law.

Facebook also argued that its messages were protected by a provision of the law exempting robocalls made for “emergency purposes,” which the Federal Communication Commission has interpreted as covering “any situation affecting the health and safety of consumers.” But the court said the exemption would not apply to someone like Duguid, who has repeatedly told Facebook that he is not a customer.

Original story: At the San Francisco Chronicle