Practice Management

Spam on your cell phone?

It’s bad enough that our inboxes are bulging with new spam email day after day, despite our best efforts to filter them out.  How bad is it?  According to 2007 statistics aggregated by Postini, one of the world leaders in email virus and spam cleansing, 10 out of 12 messages (81%) are spam and 1 in 14 (7%) messages is virus infected.  To this point, our cell phones have been blissfully exempt from this annoyance.  But our bliss may be about to end.

Recently, frequent texters and American Idol fans were angered by AT&T for sending text-message spam. The New York Times said AT&T did not charge recipients and noted a simple opt-out method, but the controversial matter is whether AT&T had the right to send messages in the first place.

Following up on this, I found a very informational article on Wireless Week.  Entitled “Spam on Your Mobile Phone: What Are the Rules?” this article explains how our protections are provided currently by the Telephone Consumer Protection Act (TCPA) and the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act).

The article  explains that the TCPA, enacted in 1991 and known to most people because of the national do-not-call registry promulgated by it, restricts unsolicited phone calls, faxes and also text messages. It is enforced by the FCC. Businesses that violate the TCPA may be liable for $500 per violation, which can be multiplied by potentially thousands of recipients.

The CAN-SPAM Act, enacted in 2003 because of public outcry against spam e-mail, prohibits false representations in e-mail, or e-mailing addresses obtained using automated means.  It is enforced by the FTC. Advertisers that violate the CAN-SPAM Act may be subject to prosecution, with liability of up to $6 million. Therefore, the statute has the potential to reduce spam by serving as a threat to spammers.

Myspace was awarded an unprecedented $234 million on May 12, 2008, under the CAN-SPAM Act in an action against two notorious spammers who used myspace.com as a vehicle for spamming.

So why should we worry about spam on our cell phone?   Aren’t we adequately protected by this existing legislation?  As the author of the article explains, “as increasing competition drives down the prices carriers charge for voice communication, there is increasing pressure for them to look to other forms of revenue, including advertising over the data networks they have  created. Furthermore, as more consumers access the Internet from their mobile phones, ‘off deck’ or direct from the Internet mobile content and service offerings will proliferate . . .”

Given that economic motives drive the current proliferation of spam, viruses and spyware, I agree that this additional frontier could eventually fall prey to the same incursions.  Lesson?  When you receive your first spam, and every time you receive unsolicited advertising on your cell phone, you should immediately send your service provider a clear message that you will not accept such trash on your cell phone.  Threaten to switch carriers. 

Hopefully the potential loss of customers will outweigh any anticipated economic gain from allowing advertisers access to their network of registered cell phones.

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Full post as published by Law Practice Management on January 17, 2009 (boomark / email).