Metropolitan News-Enterprise


Tuesday, March 12, 2019


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Ninth Circuit Urged to Restore Robocall Suit Against Facebook

Plaintiff in Would-Be Class Action Claims Automatic Text Messages Warning of Hacking Are Sent to Recipients Who Aren’t Facebook Users and Don’t Stop Even After Protest


By a MetNews Staff Writer


A lawyer yesterday urged the Ninth U.S. Circuit Court of Appeals to reinstate a putative class action against Facebook, Inc. based on its alleged violations of the Telephone Consumer Protection Act by automatically sending a text message to a person it believes to be a user whose account is possibly being hacked, but with the message often going to a person who is not a user.

District Court Judge Jon S. Tigar of the Northern District of California on Feb. 16, 2017, dismissed with prejudice the action brought by Noah Duguid who received repeated text messages warning of the suspected hacking. Tigar reasoned that it had not had not been adequately pled that Facebook utilizes an “automatic telephone dialing system, so as to bring it under the statute.

Connecticut attorney Sergei Lemberg told a three-judge panel, convened in San Francisco, that Facebook’s system “generates text messages, spam that we all hate, and it falls within the statute.”

He asserted that it is a “broken system” because even where the recipient of the texts advises Facebook that he or she is not a user, the messages keep coming.

“You cannot turn it off,” he complained.

Facebook’s Lawyer

Arguing for Facebook, Andrew B. Clubok of the District of Columbia office of Latham & Watkins commented:

“[W]hen Facebook tries to reach someone, even if it does it in error, to warn them that someone, right at this moment, is trying to hack into their account, potentially, and trying to take over their Facebook account…that is supposedly barred speech.”

He said that with two billion Facebook users and people constantly changing their cell phone numbers, sending a text message to the wrong person  “can be expected to happen quite a bit.”

But Clubok insisted that what Facebook does, in seeking to issue a warning, is “nothing like the telemarketing that Congress originally sought to stop.”

McKeown’s Remarks

Circuit Judge M. Margaret McKeown, noting Facebook’s benign intent, invoked the twisted clique, “No good deed goes unpunished.”

Unpersuaded by Clubok’s reading of the statute, she said:

“[T]o infuse common sense into it, we would have to rewrite the statute.”

She expressed difficulty accepting the lawyer’s suggestion that a warning of possible hacking comes under the statute’s “emergency exception.” McKeown questioned whether hacking relates to “health and safety, and asked rhetorically:

“Could I call 911 if someone is hacking my computer?”

Unconstitutionality Alleged

Although Clubok did not press the contention at oral argument, Facebook has contended that the statute is rendered unconstitutional by virtue of an amendment that makes an exception for robocalls by outfits acting on behalf of the government in seeking payment of debts.

The U.S. government has intervened and was represented at the hearing by Lindsey Powell of the Department of Justice’s Civil Division Appellate Staff. She told the judges that the robocalls to Duguid occurred in 2014 and the amendment creating the government-debt exception was not enacted until late 2015.

“There’s no basis for applying the amended version of the statute retroactively,” she said.

  Clubok pointed out that Duguid’s complaint was filed in 2016 and seeks injunctive and prospective relief.

The case is Duguid v. Facebook Inc., 17-15320.

Also argued yesterday was Gallion v. Charter Communications Inc., 18-55667. In that case, the constitutionality of the Telephone Consumer Protection Act is challenged based on “content-based exemptions for favored messages.”


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