Legal Commentary

Ed Hasbrouck Takes on Amex Over its New Robocall Policy

By Professor University of Miami School of Law

Ed Hasbrouck, aka The Practical Nomad, blogs an Urgent warning to American Express cardholders:

If you have an American Express card, you need to take action now: Unless you cancel your card and close your account, or unless AmEx is persuaded to withdraw changes it has announced (effective 2 April 2009) to the terms of its agreement with cardholders, you will be deemed to have given your consent to receive calls including robocalls, and SMS text messages, from AmEx, in perpetuity, at any number you ever use to contact AmEx, including cell phones. That could be costly, damaging to your relationships with friends, family, and business associates whose phones you might need to use to call AmEx in an emergency, and put you in severe danger of having your information broadcast to strangers (if, for example, a robocall plays a recorded message to the receptionist at a hotel where you’ve already checked out, or another guest at the direct-dial number for the the room that you had once stayed in).

Before ATM’s were so widespread, I used to recommend carrying an American Express card as a check-cashing card when travelling abroad. More recently, although their practices have prompted me to threaten to cancel my card, I’ve kept it as an emergency backup. This latest proposal, however, will definitely be the last straw for me if AmEx doesn’t back down.

He also includes the full text of a great letter he sent Amex. I especially like this part:

I have an American Express card to use while travelling, primarily while travelling internationally. Of necessity, I use a variety of telephones and numbers to contact American Express while travelling, including telephones at the homes of friends and in the offices of business associates, friends’ mobile phones, hotel phones, and public phones. When I use my own mobile phone abroad, it is typically at an extremely high “international roaming” tariff.

Even if I were willing to agree to terms like these for myself, I have no authority to consent to have the friends, business associates, and others whose phones I use to contact you receive calls (including robocalls) and text messages – in perpetuity! — from you. Consent for such calls and text messages could come only from them. Were I to purport to consent on their behalf, as you have proposed, I would subject myself to potentially severe liability to them.

Because the phones I use while travelling typically are not my own, but are shared with and primarily used by other people, automated calls or text messages from you to those numbers are likely to be received by someone other than myself. As a result, such calls or messages are likely to result in the broadcasting of my personal information to third parties, and thus to facilitate invasion of privacy and identity theft. I cannot afford to take such a risk.

Return calls or text messages from you to the phone numbers I use while travelling could be prohibitively expensive to me (or to the third parties whose phones I have used). International roaming on a mobile phone often costs US$5/minute, sometimes more.

As we know from the DNS wars, Ed is tenacious.

Full post as published by Discourse.net on February 23, 2009 (boomark / email).