Facebook Texts: Spam or Emergency Communication?

Back in March, we told you about a lawsuit filed against Facebook, Inc. over its “spam” text messages. The lawsuit was filed by plaintiff Noah Duguid after he repeatedly received Facebook’s safety alert text messages, designed to let users know when someone else tried to access their account.

Duguid had never given Facebook permission to message him – and claimed that some people even received the messages despite not having Facebook accounts. The suit alleges that Facebook’s messages violate the Telephone Consumer Protection Act (TCPA) – a federal law that prohibits companies from contacting customers without express permission to do so.

The proposed class action is seeking more than $5 million in damages, a number based on the heavy fines levied for every violation of the TCPA. Now, though, Facebook is fighting back – and rather than denying the messages were sent – the company is arguing that the texts are exempt from the TCPA because they qualify as emergency communications.

Facebook has filed a motion to dismiss, essentially questioning the basis of the class action and arguing that the case should not proceed. Their argument is an interesting one: applying the TCPA to their “emergency” texts would, representatives said, violate the First Amendment. Their logic? The content of the messages is non-commercial and is therefore afforded greater protection than advertisements and commercial communications.

Duguid wasted no time responding to – and completely rejecting – the company’s claims, filing his own response to the motion in which he argued that Facebook’s stance “turned First Amendment law on its head:”

“The emergency purposes exception exempts some automated messages based on their ‘purpose.’ It says nothing about the content of the messages themselves.”

Dugid’s response continues:

“Examples of automated calls qualifying for the emergency purposes exception include warnings of power outages, alerts from the President of the United States, alerts regarding terrorist threats and AMBER alerts. Facebook cannot plausibly claim its text messages were made necessary by a situation affecting life or limb…Far from addressing a ‘situation affecting the health and safety of consumers,’ Facebook’s messages were meant to notify consumers when access to their Facebook account was attempted from a new location. Moreover, Facebook’s calls were not “necessary.” [ ...] Indeed, the Plaintiff has no Facebook account, thus the messages were not only unnecessary they were completely irrelevant and harassing. The same is true for the class members, who, like Plaintiff, received Facebook’s messages despite (1) never giving Facebook their cell phone number, or (2) specifically requesting that Facebook’s messages stop.”

In short, Facebook’s attempt to use the emergency exception fails to grasp why the exception was created in the first place: for messages sent with a very specific purpose, rather than any message that is not inherently commercial. Messages alerting customers to imminent dangers or power outages may be exempt, but alerts about log-ins – especially log-ins to sites were the individual has no account – are not.

The case is being heard in the U.S. District Court for the Northern District of California. The plaintiff’s response was filed on June 26 and the judge’s decision has not yet been announced.