After Fake News, Facebook Starts Crackdown on Spammy Ads

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Facebook has rolled out a new update that seeks to cut down on spammy ads on users’ news feeds.

The announcement came just over a month after the social media site clamped down on fake news and disinformation.

“With this update, we reviewed hundreds of thousands of web pages linked to from Facebook to identify those that contain little substantive content and have a large number of disruptive, shocking or malicious ads,” the blog post, written by Jiun-Ren Lin and Shengbo Guo, said.

This is not a new policy, of course, as engineers at the social media site have been trying to weed out low quality or “disruptive” content from its pages since last year. Tabloid-style headlines, deceptive ads, sexual images, and shocking content are either pushed back down in the feeds or erased altogether.

Facebook utilized machine learning to study the blueprint and models used by spammy ads. With the new algorithm in hand, its AI systems then comb through the billions of posts to find similar patterns.

One of the reasons for Facebook’s aggressive approach toward spammy ads, fake news, and disruptive content was the blowback that Mark Zuckerberg received from critics who accused the social media company of influencing the U.S. elections last November.

Zuckerberg initially hedged, but immediately introduced measures to insulate the platform from being a harbinger of fake news and disinformation. In February, the billionaire released a manifesto where he reiterated the company’s original vision of building a community to bring the world closer together.

In this manifesto, he revealed that they were working on machine learning to flag videos and photos that are deemed to be controversial. The Facebook team will then review the content before allowing it to be seen on users’ news feeds. “Today I want to focus on the most important question of all: Are we building the world we all want?” Zuckerberg wrote.

Greg Marra, the company’s product manager for news feed, said the system is not perfect, but the initial results have been encouraging. Below are some of the criteria Facebook’s machines are looking at to categorize a specific content as low-quality or disruptive:

  • Does it have a “significant amount of original content?”
  • Are there pop-up ads on the landing pages?
  • Are the ads shocking or sexual?

Marra said their algorithms will skip over some ads if they are “high-quality” enough that people wouldn’t mind seeing them when they do click on a sponsored content in their news feeds.

The post After Fake News, Facebook Starts Crackdown on Spammy Ads appeared first on WebProNews.

May 15th 2017 Facebook, Social Media, spam

YouTube Defeats Another Remove-and-Relocate Case–Darnaa v. Google

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YouTube has been sued a few times for removing a video based on its spam policies and then relocating it to a new URL because remove-and-relocate breaks in-bound links (and any associated marketing investments) and resets the view counter. This particular case is by the singer Darnaa over the removal-and-relocation of her video “Cowgirl” (I’ve previously linked to it; once is enough). The last time I blogged the case, Judge Whyte (in one of his last opinions before retirement) partially rejected Google’s Section 230(c)(2) defense. Still, the case got whittled down so that the only active claim was a breach of the implied covenant of good faith and fair dealing. That’s a difficult claim to win in any circumstance, especially when it’s the only cause of action. Predictably, the claim finally fails.

Google invokes the limitation of liability clause in its terms of service, which reads:

IN NO EVENT SHALL YOUTUBE … BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM … (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES … [OR] (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT … WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY….

Darnaa only sought damages for the implied covenant breach, and the court says the limitation of liability clause moots her damages claim. Darnaa argued that a California statute prevented the limitation of liability in fraud cases, but that didn’t help:

Darnaa, LLC’s claims simply stem from Google’s interruption of service and resetting the view count on the “Cowgirl” video, which it did pursuant to a term in the agreement (namely, the prohibition of systems that artificially inflate view counts). As pled, this simply states a claim for breach of the implied covenant of good faith and fair dealing, and Section 1668 does not protect such a claim from the limitation-of-liability clause found in Section 10 of the terms of service agreement. Darnaa’s claim, which seeks only damages, is precluded.

In a footnote, the court said that Darnaa was further boxed in by Section 230(c)(2):

To the extent Darnaa, LLC, would seek to recharacterize its contract claim as sounding in tort, the claim only survived the prior motion to dismiss, based on the Communications Decency Act, because Judge Whyte held it did not sound in tort. Darnaa, LLC, cannot rescue its claim with this shell game.

Onto the appeals court, I presume.

Overall, Google has to be pleased with this outcome. It’s a textbook example of how skillful litigators can box in a plaintiff through iterative motions to dismiss, each time narrowing the case until there’s nothing left. Still, it was frustratingly obvious from the first complaint that Darnaa would not win, so the fact that this case went through 3 complaints and nearly 3 years is still a loss in my book. If Section 230(c)(2) worked as a robust safe harbor, perhaps it might have helped dismiss the case earlier…or, better yet, kept the case from being filed at all.

I think this ruling nicely complements Google’s recent win in the e-ventures case, which upheld Google’s right to de-index what it considered to be a “pure spam” website. Regardless of what legal doctrine the court ultimately relies upon, plaintiffs who are suing Google for responding to what it thinks is spammy activity face very long odds in court.

Case citation: Darnaa, LLC v. Google Inc., 2017 WL 679404 (N.D. Cal. Feb. 21, 2017). The original complaint.

Related Posts:

* Google Loses Two Section 230(c)(2) Rulings–Spy Phone v. Google and Darnaa v. Google
* Section 230 Protects YouTube’s Removal of User’s Videos–Lancaster v. Alphabet
* YouTube Wins Another Case Over Removing And Relocating User Videos (re Lewis v. Google)
* Can YouTube ‘Remove And Relocate’ User Videos Capriciously?–Darnaa v. Google
* Section 230(c)(2) Gets No Luv From the Courts–Song Fi v. Google
* Venue Clause in YouTube Terms of Service Upheld–Song Fi v. Google

February 25th 2017 spam

Google gets better at flagging apps trying to fake their way into the Play Store’s top charts

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google-play Google today announced it’s rolling out a new detection and filtering system on the Play Store to crack down on those developers who use illegitimate means to boost their apps’ rankings in the store’s top charts. This will affect apps that use methods like fraudulent installs, fake reviews, and incentivized ratings, the company noted. While Google already had technology it… Read More

November 1st 2016 Android, Google, Mobile, spam

A Tale of Two Spokeos

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Screen Shot 2016-05-19 at 9.13.39 AMThe Supreme Court provided important guidance about Article III standing, especially what constitutes an injury sufficient to satisfy Article III, in the Spokeo v. Robins ruling from May 2016. At the time, it was unclear whether the ruling was more helpful to plaintiffs or defendants. Both sides expressed triumph. Reflecting that murky assessment, post-Spokeo standing rulings appear to be somewhat mixed. I have not surveyed the cases, but I would venture to guess that on balance they probably lean slightly towards plaintiffs. Two recent cases highlight the split:

Hancock v. Urban Outfitters: This case alleges a retailer wrongfully collected personal information in conjunction with a credit card transaction (Washington DC’s version of the Song-Beverly credit card act). The question is whether merely asking for (and collecting) such information created an sufficient injury to confer standing. The lower court dismissed on the merits, saying that a zip code is not an “address” and thus not covered by the statute. (Compare with Pineda v. Williams Sonoma, a case from the California Supreme Court coming to a different conclusion under the California statute.) Second, the court held that plaintiffs did not allege that the transactions would not have been completed absent the requested information.

On appeal, the D.C. Circuit remanded the case for dismissal, saying that plaintiffs failed to satisfy article III standing in the first instance. The court focused on the “bare procedural language” from Spokeo and said that the Court mentioned some examples of disclosure that would not support standing. Here, the plaintiffs’ complaints were one step removed—they were complaining about collection, and not even disclosure or misuse:

If, as the Supreme Court advised, disclosure of an incorrect zip code is not a concrete Article III injury, then even less so is Hancock and White’s naked assertion that a zip code was requested and recorded without any concrete consequence. Hancock and White do not allege, for example, any invasion of privacy, increased risk of fraud or identity theft, or pecuniary or emotional injury. Cf. Spokeo, 136 S. Ct. at 1549 (A “risk of real harm” or an “intangible” harm may satisfy Article III’s requirement of concrete injury.). And without any plausible allegation of Article III injury, the complaint fails to state a basis for federal court jurisdiction.

[For more on the potential social and legal differences between collecting, sorting and using data, see Eric’s article, Data Mining and Attention Consumption.]

Mey v. Got Warranty: This is a TCPA case where the plaintiff alleged that the defendant placed calls using auto-dialing equipment. Defendant moved to dismiss for lack of subject matter jurisdiction. The court stayed the case pending resolution of Spokeo. The court says Spokeo did not change the law and break new ground. The key question is whether unwanted calls cause “concrete harm” and the court emphatically (and in an 18 page order!) says yes. Such calls could cause monetary injury by depleting minutes or expend battery power. It constitutes an invasion privacy, which is a tort that has common law roots. It also could constitute a trespass. Interestingly, the court even goes as far to say that unwanted calls can constitute future harm:

Unwanted calls . . . cause a risk of injury due to interruption and distraction.

[Sidenote: if distraction is injury, sign me up for disability asap!]

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Given the split rulings, it’s tough to draw definitive conclusions about the effects of Spokeo on future cases. Spokeo will likely be a useful tool for defendants in information security and privacy cases. We’ve seen a slew of these types of cases (Song-Beverly Credit Card Act; Shine the Light statutes; data breach cases) grapple with standing because the plaintiffs object to the defendants’ technical statutory violation but cannot show any consequence of that breach to them. Given the absence of any meaningful harm to consumers from those technical breaches, some judges will use Spokeo to clear their dockets. Plus, the D.C. Circuit is an influential court, so the Hancock ruling should get some mileage. On the other hand, for a TCPA case, Spokeo is unlikely to help.

Mey v. Got Warranty, Inc., 2016 WL 3645195 (N.D.W.V. June 30, 2016)

Hancock v. Urban Outfitters, 14-7047 (D.C. Cir. July 26, 2016)

Related posts:

Will the Spokeo v. Robins Supreme Court Ruling Favor Plaintiffs Or Defendants? Uh…

9th Circuit Says Plaintiff Had Standing to Sue Spokeo for Fair Credit Reporting Violations

Court Revisits and Dismisses Fair Credit Reporting Act Lawsuit Against Spokeo — Robins v. Spokeo, Inc.

Court Allows Fair Credit Reporting Act Claims Against Spokeo to Move Forward — Robins v. Spokeo

Court Dismisses Class Action Against Spokeo for Lack of Standing — Robins v. Spokeo

“Manufactured” TCPA Suit Fails For Lack of Standing

Seventh Circuit: Data Breach Victims Have Standing Based on Future Harm

California Supreme Court Rules That a ZIP Code is Personal Identification Information — Pineda v. Williams-Sonoma

Ninth Circuit Turns Out The Lights on California ‘Shine the Light’ Case

July 31st 2016 Marketing, spam

Twitter May Be Liable for Sending Texts to Recycled Cellphone Numbers–Nunes v. Twitter

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Screen_Shot_2016-07-18_at_7_50_49_AM-This is a TCPA lawsuit against Twitter. The claims are based on text messages sent to phone numbers where the subscriber was a Twitter user and signed up to receive text updates but later the phone number got recycled to a new subscriber. As a result, the person now receiving Twitter’s SMS updates did not opt-in to receive them.

Twitter raised two possible defenses. First, it did not “make the call,” as that phrase is used in the TCPA. Second, it’s not responsible for the underlying content and thus immune under Section 230. The court rejects both defenses.

Did Twitter make the call within the meaning of the TCPA? The court says that Twitter converts its tweets into text and (as alleged by plaintiff) uses an auto-dialer. The only other possibilities for “who made the call” are the tweet’s author or the person who opted in originally. The court says the tweet author “can’t possibly” be the maker because this user has no control over who receives his or her tweets and does not even know who is signed up to receive text alerts. Thus, he or she has no idea whether they are even making the call. Similarly, the court says that the person who initially opted-in can’t be the maker of the call because all that person did was to sign up to receive tweets via text message:

[The idea that this person is the maker of the call is] contrary to the ordinary meaning of the word “make” – when someone signs up to receive a call from someone else in the future, he is not ‘making that call when it comes in.

[Eric’s comment: it makes me wonder if it’s possible *no one* was a “maker” under the statutory definition? The judge didn’t seem to consider that possibility.]

Because the plain language of the statute does not, in the court’s view, support Twitter, the court looks to a 2015 FCC ruling that addressed the issue of a platform’s liability for text messages initiated by users. The FCC looked at two apps, TextMe and YouMail. With respect to TextMe, the agency said that a user who invites people on his contact list to join the service is the one who initiates the call as he is picking among various contacts to determine who is invited. This is slightly different from both the subscriber of the previous number or the person sending the tweets—neither of them are actively sending the texts. YouMail similarly sends text messages based on the user’s preference. And the FCC relies on the app user’s “involvement in the process of creating and sending the messages in response to received calls,” in finding that the app user and not YouMail was the person who made the call.

The court also says the FCC’s interpretation of the goals and purposes of the TCPA favors the plaintiff. Commenters noted the recycled number problem to the FCC and argued that the previous owner of a recycled number should be considered the “called party”; so to the extent this party consented, callers who had received consent should be off the hook. The FCC rejected this approach, noting that one of the purposes of the TCPA is to protect consumers from unwanted calls, and the approach urged by the commenters would leave consumers unprotected. The court says that Twitter’s suggestion is at odds with the FCC’s interpretation of the TCPA and its purposes.

Twitter also argued that an adverse ruling would cause Twitter to reconsider providing text updates at all, but the court is not persuaded by this:

Finally, a few words in response to Twitter’s arguments about the potential consequences of this ruling. At oral argument, Twitter insisted that if it were deemed the “maker” of the calls by which tweets are sent to recycled cell phone numbers, it would have no choice but to stop sending those tweets. The implication seemed to be that this result would be unbearable. But even if Twitter made good on its promise to stop sending tweets by text message, Twitter users would be able to view tweets in all sorts of other ways: by checking their timelines on Twitter’s website or in Twitter apps, by enabling push notifications from their Twitter apps, or by signing up for email notifications from Twitter. It’s not at all clear, particularly in light of the FCC’s ruling about recycled numbers, why the need to disseminate tweets in this particular way (that is, by text message) should prevail over the need to protect owners of recycled numbers from getting unwanted texts.

Twitter also cited to the possibility of Southwest airlines being exposed to liability when it provides flight information updates via text message, but the court says this is unlikely. While there are multiple ways in which Southwest can update its customers, the update feature requires passenger input at the time of making a reservation.

Is Twitter Entitled to Section 230 Immunity: Twitter also argued it was entitled to protection under Section 230 because it did not author the tweets in question. Seems hard to dispute and an easy enough conclusion, right? Not so fast, says the court. Citing to Barnes, the court says that Twitter is not being treated as a publisher because “publication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content.” The court also says that the precise content of the messages is not the asserted basis of liability (it’s the form of the communication rather than its content).

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This is not the end of the road for Twitter. As the court notes, it could still successfully argue that it did not use an autodialer and thus escape TCPA liability. Yahoo won summary judgment in a TCPA case involving a re-assigned number on this basis. Unfortunately, the Third Circuit sent the lawsuit back for a second look at the autodialer issue. (See “Third Circuit Revives TCPA Case Against Yahoo”.)

Recycled numbers are a long-standing problem. As the court notes, the FCC grappled with aspects of it and came to an imperfect solution. A dissenting commissioner (cited by the court) made good points regarding how plaintiffs have capitalized on texts to recycled numbers. This case, along with the one from last week, are good data points for lobbyists who are looking to get the attention of a legislator. As for the recycled number problem, one possible middle ground solution would be to give a company one free message, provided it includes an opt-out mechanism. That message, while unwanted, would not be the basis for TCPA liability, but future messages can be presumed to be consented to since the recipient did not take the simple step of opting out?

Finally, the court’s section 230 ruling falls into the “WTF Is Going On With Section 230?” category. (See Eric’s post from last month, collecting cases). The court cites to Barnes for the proposition that publication involves review and editing, but it takes a bizarro-world approach. The whole point of section 230 is that since the intermediary did not create the content, it should not be held liable for it, regardless of whether it made editorial decisions regarding it, or, in the exercise of its editorial discretion, declined to do so.

Eric’s comments: Yuck. So much to dislike in this opinion.

Perhaps what bothers me most is the court’s (and the FCC’s) denigration of people who choose to receive tweets via text. There’s a tinge of hubris when the court presumes that people should not need texts because they have other ways to receive the tweets–especially in light of how many folks, especially millennials, strongly prefer text communications above other options. Judges (and the FCC) aren’t able to easily evaluate what’s the best medium for people to receive content; that’s why we prefer marketplace mechanisms to sort out questions like this. Furthermore, shutting down a communicate-by-text option may circumscribe information flows in ways we can’t anticipate or understand. In light of number portability where the volume of recycled numbers is already pretty small, I’m guessing that the percentage of texts sent to people who receive unwanted Twitter texts because the predecessor phone number subscriber opted-in is trivial–I’d be shocked if it were even 10%, but I’d expect it to be 1% or less. As a result, the net effect of this ruling is that legal protection for a minuscule minority trumps the communication desires of a majority of Twitter users who opt-into text messages. That’s just bad policy.

It also makes me wonder about the text message exceptionalism of regulating text messages as a medium. As I discussed in my Coasean Analysis of Marketing paper from over a decade ago, the TCPA is a weird opt-in outlier compared to other communication media. Rulings like this highlight its flaws. By giving the minority veto power over the media, rulings like this turn the TCPA into a plaintiff’s dream and doom text messaging as a fully-functional communications media.

The Section 230 analysis is indeed bizarre because it gets the analysis precisely backwards. Section 230 is supposed to mean that intermediaries aren’t liable for third party content whether or not they exercise editorial discretion. They can edit, or not, and the legal outcome is supposed to be the same. Indeed, Section 230’s real innovation was providing the immunity even for intermediaries that exercise editorial discretion; the default common law has always been that intermediaries that don’t exercise editorial discretion lack the necessary control to take liability (i.e., they face less liability because they act as “passive conduits”). Section 230 eliminated the distinction between active editors and passive conduits. Yet, here, the court turns all of this on its head and says that Twitter loses Section 230 because it doesn’t exercise editorial control and acts as a passive conduit. The judge says:

Twitter does not “review” the content of tweets. It does not “edit” the content of tweets. It does not make decisions about whether to send out a tweet.

Agreed! Yet, by listing all of these ways Twitter acts as a “passive conduit,” the judge is proving to himself why Twitter shouldn’t be liable. So…WTF?

As part of its reasoning, the court then calls Twitter’s text messages a “nuisance” and tried an offline nuisance analogy that I can’t bring myself to discuss. I directly addressed–and, I’d like to think, provided persuasive arguments against–the attempts to analogize marketing to “nuisances” in my Coasean Analysis of Marketing article. As a result, it’s disappointing to see a judge embrace this tired and analytically lacking analogy in 2016.

Eric’s Note about Judge Grewal:

This opinion also got some attention because of Judge Chhabria’s lengthy shout-out to Judge Grewal, a rare judge who tweeted and who recently departed the bench for a job at Facebook:

Take, for example, erstwhile Magistrate Judge Paul Grewal, who recently left the bench to work for one of Twitter’s competitors. Apparently 964 people are interested in what Judge Grewal has to say [including me!], because that’s how many Twitter followers he has. In early June 2016, during his last two days on the bench, Judge Grewal posted nine tweets. For example, he said: “Anyone looking for a screaming deal on a slightly-worn judicial robe? I’ve got one ready to move.” In another example (one he was regretting until Game 5 but now is very proud of), Judge Grewal said the following about the NBA Finals: “Here comes @KyrieIrving. Count on it.” On his final day, he said: “Last claim construction issued; it’s time to go. Thank you N.D. Cal. from the bottom of my heart.”

The gratitude Judge Grewal feels towards the Northern District pales in comparison to our appreciation of him. In a few short years, due to his expertise in intellectual property law and his overall judgment and wisdom, Judge Grewal became not merely one of the most important members of the Northern District, but one of the most important members of the federal judiciary. He will be sorely missed.

All of this praise is richly deserved, but I wonder: how much will (former) Judge Grewal still tweet now that he’s working for the competition?

Case citation: Nunes v. Twitter, 14-cv-02843-VB (N.D. Cal. July 1, 2016) [pdf]

Related posts:

“Manufactured” TCPA Suit Fails For Lack of Standing

Does Two-Factor Authentication Violate the TCPA?–Duguid v. Facebook

TCPA Claim Against Non-Sender Fails

Third Circuit Revives TCPA Case Against Yahoo

Court Rejects TCPA Claim on the Basis of Implied Consent

Recent FCC Order Helps Shopkick Defeat TCPA Claims

TCPA Claim Against Taco Bell Fails For Lack of Agency

TCPA Claim Over Yahoo!’s IM to SMS Messaging Survives Summary Judgment

Confirmatory Opt-out Text Message Not Actionable Under the TCPA — Ryabyshchuck v. Citibank

Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell

Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

Group Text Services Grapple with TCPA Class Actions

Court Rejects Constitutional Challenge to TCPA Based on Vagueness in “Prior Express Consent” Exception — Kramer v. Autobytel, Inc.

Ghostwritten Attorney Newsletter is an “Ad” for TCPA Junk Fax Law Purposes–Holtzman v. Turza

Another Court Finds that TCPA Applies to Text Messages — Lozano v. Twentieth Century Fox Film Corp.

Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense — Abbas v. Selling Source, LLC

Ninth Circuit Revives TCPA Claim–Satterfield v. Simon & Schuster

Cellphone Spam Violates TCPA–Joffe v. Acacia Mortgage

Will the Spokeo v. Robins Supreme Court Ruling Favor Plaintiffs Or Defendants? Uh…

Sixth Circuit Says Informational Fax Isn’t an “Ad”–Sandusky v. Medco

July 19th 2016 Marketing, spam

“Manufactured” TCPA Suit Fails For Lack of Standing

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Screen Shot 2016-07-08 at 12.19.25 PMThis is a TCPA lawsuit over unsolicited calls. Although plaintiff resided in Pennsylvania, she purchased 35 pre-paid phones with Florida area codes. The area codes were selected because they are comparatively economically depressed and thus more likely to get collection calls.

Discovery revealed that she bought the phones with the goal of receiving unsolicited calls and then filing TCPA lawsuits. Plaintiff was asked about this during her deposition, and her testimony is damning. The court quotes extensively from it, but a sampling is below:

q. Why do you have so many cell phone numbers?
a. I have a business suing offenders of the TCPA business — or laws.
q. And when you say business, what do you mean by business?
a. It’s my business. It’s what I do.
q. So you’re specifically buying these cell phones in order to manufacture a TCPA? In order to bring a TCPA lawsuit?
a. Yeah.

q. So is there another purpose that you use these cell phones for other than –
a. No.
q. — to — no. So the purpose is to bring a TCPA lawsuit?
a. Correct.
q. Does anyone you know ever call you at these phone numbers?
a. No, ma’am.
q. Did you ever use any of these phone numbers to call anyone?
a. No, ma’am

Based on this, the defendant (Wells Fargo) asserted defenses including: consent, that she invited the injury and assumed the risk. The consent defense does not satisfy the technicalities required under the TCPA. The court says, citing to the most recent FCC rules, that the defenses of assumption of risk and invitation of the injury do not apply to the TCPA. During the FCC proceedings, a commenter had specifically requested a bad faith defense in the scenario where a plaintiff manufactured a lawsuit, by waiting to notify the calling party about a number re-assignment, but the Commission rejected this request. While not directly on point, the court says that this means assumption of risk and invitation of injury are inapplicable to the TCPA.

Finally, the court settles on standing and says that plaintiff has not suffered injury in fact. Her testimony reflected that she did not suffer a violation of privacy when receiving the calls. As an alternative to privacy harm she argued that she suffered economic harm, but the court says she cannot allege this either. Citing to the data breach cases and Clapper, the court says that she cannot claim standing based on her loss of phone minutes or the money she expended to purchase the phones. Interestingly, Spokeo only merits a passing reference in the ruling.

Even assuming plaintiff has constitutional standing, the court says she does not have prudential standing. One of the elements of prudential standing is that the litigant’s interests are within the “zone of interests” sought to be protected by the statute, and that’s not the case here. In enacting the TCPA, Congress sought to protect those who suffered the nuisance of receiving unwanted calls, and as someone who purposefully bought phones and sought out calls, she does not qualify.

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Ouch, this is bad. The plaintiff’s deposition testimony could not have been worse. Pro-tip: I don’t think you ever want to admit that your are in the business of filing lawsuits.

The plaintiff’s scheme feels very similar to Gordon v. Virtumundo, where the court slammed the plaintiff for manufacturing the claim in question. Another case that falls into this genre is Beyond Systems, where spam emails were routed through out-of-state servers to take advantage of the other state’s spam laws. The courts in these cases relied on slightly different theories, but reached the same result.

I wonder if cases like this will be the proverbial straw that breaks the TCPA camel’s back. It’s the type of case that could get the attention of a legislator who was interested in revising and reforming the statute.

Legal doctrines aside, courts always find a way to turn away plaintiffs who manufacture claims. I wonder if defendant will seek a fee-shifting ruling.

Case citation: Stoops v. Wells Fargo, No. 3:15-83 (W.D. Pa. June 24, 2016)

Related posts:

Does Two-Factor Authentication Violate the TCPA?–Duguid v. Facebook

TCPA Claim Against Non-Sender Fails

Third Circuit Revives TCPA Case Against Yahoo

Court Rejects TCPA Claim on the Basis of Implied Consent

Recent FCC Order Helps Shopkick Defeat TCPA Claims

TCPA Claim Against Taco Bell Fails For Lack of Agency

TCPA Claim Over Yahoo!’s IM to SMS Messaging Survives Summary Judgment

Confirmatory Opt-out Text Message Not Actionable Under the TCPA — Ryabyshchuck v. Citibank

Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell

Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

Group Text Services Grapple with TCPA Class Actions

Court Rejects Constitutional Challenge to TCPA Based on Vagueness in “Prior Express Consent” Exception — Kramer v. Autobytel, Inc.

Another Court Finds that TCPA Applies to Text Messages — Lozano v. Twentieth Century Fox Film Corp.

Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense — Abbas v. Selling Source, LLC

Ninth Circuit Revives TCPA Claim–Satterfield v. Simon & Schuster

Cellphone Spam Violates TCPA–Joffe v. Acacia Mortgage

Will the Spokeo v. Robins Supreme Court Ruling Favor Plaintiffs Or Defendants? Uh…

Sixth Circuit Says Informational Fax Isn’t an “Ad”–Sandusky v. Medco

July 9th 2016 Marketing, spam

Preemption Dooms Suit Over LinkedIn Group Spam

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Screen Shot 2016-07-05 at 7.59.10 AMThis is a lawsuit over spam sent to the member of a LinkedIn group. The common sense failings underlying the claims speak for themselves, but the court ends up dismissing on preemption grounds.

Plaintiff was a member of the “C, Linux and Networking Group” on LinkedIn. He alleged that he received 86 emails advertising various domain names such as “linkedininfluence.com,” “paidsurveyauthority.com,” and “takesurveysforcash.com,” among others. The emails were sent by seemingly fictitious persons, or at least people with names that sounded like they were fake (“Whitney Spence,” “Arelia Rosales,” and “Nona Paine”) (no offense to people who really have those names!). The emails were all sent through LinkedIn’s domain name, as they had to be.

Plaintiff asserted violations of California’s spam statute, which prohibits (1) the use of a third party domain name without permission; (2) falsified, misrepresented, or forged header information; and (3) misleading subject lines. Claims for misleading emails under the statute have to allege more than just mere inaccuracy, in order to escape federal preemption. See Gordon v. Virtumundo. The court rules that the allegations here do not suffice.

The court says the arguments raised by plaintiff are a variant of the arguments rejected in Virtumundo. Moreover, cases following Virtumundo have held that neither the “from” line nor the domain name in question are subject to an accuracy requirement. Nor do they have to readily identify the advertiser or sender in question.

As characterized by the court, Plaintiff did not attempt to meaningfully address preemption via Virtumundo, but tried to rely on Balsam v. Trancos, a California appellate court case where the court said that using a domain name that neither identifies the sender nor can be readily looked up via WHOIS can be misleading under California’s spam statute. The court distinguishes Balsam because the plaintiff didn’t allege the email headers were non-traceable and false.

Finally, Plaintiff contended that he had to open an email to determine the identity of the actual sender, but this argument is also foreclosed by relevant case law. Several cases have held that the identity of the sender need not be ascertainable from the from line or header—i.e., senders can force recipients to open commercial emails to figure out who they are from.

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Despite the waning interest level over spam cases, this dispute is worth noting. Most importantly, it is another case that rejects plaintiff’s attempt to nitpick over “from” line attributes. Plaintiffs consistently try these arguments and they have consistently failed, and they were bound to fail here as well.

For plaintiffs, spam litigation based on CAN-SPAM has been a bust following Virtumundo. Plaintiffs turned instead to California law and achieved some success in cases such as Trancos. But application of a robust preemption doctrine, as in this case, limits the viability of state law claims.

The fact that the claims here were over spam sent to a LinkedIn group are worth noting. Any group of this nature is bound to become overrun with spam over time, whether in the nature of off-topic messages or outside commercial emailers. This is a problem that LinkedIn is in a better position to try to address. (And under federal law unlike under California law, only the ISP is given standing to bring anti-spam claims.) But members of the group should not be litigating these claims. They have a ready non-legal solution at their disposal…hello, unsubscribe button!

Case citation: Silverstein v. Keynetics, 16-cv-00684-DMR (N.D. Cal. June 27, 2016)

Related posts:

Two Recent Spam Cases Look at Falsification of Origin and Subject Line Claims

No Spam Lawsuit When Plaintiff Asked For The Emails–Beyond v. Kraft

California Anti-Spam Law Doesn’t Require Sender’s Name In The ‘From’ Line or Domain Name

Shopkick Unable to Shake Text Spam Complaint — Huricks v. Shopkick

Lawyer’s Suit Over “Professional Recognition” Spam Flops

Path May Be Liable for Text-Spamming Users’ Contact Lists

CAN-SPAM Preemption Doesn’t Apply To Fraud…And More

Advertiser May Have Claims Against SEO Firm Using Undisclosed Spammy Practices

Court Accepts Narrow View of CAN-SPAM Preemption but Ultimately Dismisses Claims – Davison Design v. Riley

Spam Arrest’s Sender Agreement Fails Because Email Marketer’s Employees Lacked Authority–Spam Arrest v. Replacements (Forbes Cross-Post)

July 6th 2016 Marketing, spam

Does Two-Factor Authentication Violate the TCPA?–Duguid v. Facebook

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Plaintiff sued Facebook alleging TCPA claims on behalf of a putative class. Facebook sends text messages when someone logs in to their account via a new or unrecognized device. Plaintiff was a non-Facebook user who received these messages. Unfortunately, despite his efforts to get Facebook to stop sending such messages, including responding to the messages with opt-out requests, and contacting Facebook through other means, the messages did not stop.

The key question is whether plaintiff adequately alleges use of an “automatic telephone dialing system” (ATDS). The court says it’s often difficult for plaintiff to make specific allegations about the use of ATDSs, because the plaintiff would not have any information regarding the specific systems utilized by a TCPA defendant. Some courts give plaintiffs leeway in satisfying their pleading obligation, but courts are slightly more permissive when the allegations suggest the sending of mass texts, in contrast to what plaintiff alleged here. Where a plaintiff’s allegations suggest more “direct targeting,” as plaintiff did here, courts often find insufficient an unsupported pleading that an ATDS was used. Plaintiff tried to rely on a 2003 FCC order that the capacity to produce or store random or sequential numbers is not a necessary feature of an ATDS, but the court rejects this argument.

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The TCPA is a strict statute that many companies have paid for running afoul of. As Eric notes below, the messages here are useful, and can hardly be characterized as marketing messages. That did not stop plaintiff from suing. Plaintiffs have gone so far as to sue over confirmatory opt-out messages, but as the court notes here, the majority of courts find those are not actionable.

Drafters sought to define the universe of actionable texts by reference to the equipment used to send it, but that definition turned out to be clunky at best. Courts have recently gone back and forth at the pleading stage on the topic of whether a plaintiff adequately alleges the use of an ATDS, and this is the most recent example.

Eric’s Comment: This case never mentions two-factor authentication, but that’s the clear implication of the case. Facebook’s text message sought to increase the security of Facebook accounts by sending a login notice to a physical item–the cellphone–presumably in the accountholder’s possession. (The fact that the notification got misdirected in this case may raise other issues about the efficacy of Facebook’s implementation). If the TCPA makes it illegal to send those kinds of security notices, it could undermine some of the most widely used two-factor authentication techniques. Fortunately, the court rejects the effort; unfortunately, the TCPA’s poor drafting and massive footprint in the mobile world means we probably haven’t heard the last word on this topic. So I see this as an indication of how an overreaching sloppy attempt to protect “privacy” like the TCPA may ultimately hamper much-needed and socially beneficial security measures.

Case citation: Duguid v. Facebook, 2016 WL 1169365 (N.D. Cal. Mar. 24, 2016). The complaint.

Related posts:

TCPA Claim Against Non-Sender Fails

Group Text Services Grapple with TCPA Class Actions

Debt Collection Text May Result in Liability under the Telephone Consumer Protection Act — Gutierrez v. Barclays Group

Another Competitive Keyword Advertising Lawsuit Fails–Infogroup v. DatabaseLLC

Shopkick Unable to Shake Text Spam Complaint — Huricks v. Shopkick

Lawsuit Against Adware Vendor Fails–Halperin v. Text Enhance

Path May Be Liable for Text-Spamming Users’ Contact Lists

Sending a “DTF?” Text Message Supports Restraining Order — Finigan v. Weinberg

Court: Customer Consents to Receive Texts by Providing Phone Number to Pharmacy – Pinkard v. Wal-Mart Stores, Inc.

Confirmatory Opt-out Text Message Not Actionable Under the TCPA — Ryabyshchuck v. Citibank

Courts Allows Text Spam Class Action Against Voxer, a Cell Phone Walkie-Talkie App — Hickey v. Voxernet

Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell

Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

Text Spam Class Action Against Jiffy Lube Moves Forward – In re Jiffy Lube Int’l, Inc., Text Spam Litigation

Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent — Ryabyshchuk v. Citibank

March 29th 2016 Marketing, spam

YouTube Wins Another Case Over Removing And Relocating User Videos (Forbes Cross-Post)

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Photo credit: RELOCATE word written on wood block // ShutterStock

Photo credit: RELOCATE word written on wood block // ShutterStock

I recently blogged about a lawsuit against YouTube for taking down a user’s video and relocating it to a different URL. Users get upset when their videos are removed-and-relocated because the process strips the video of its view count and any user comments, breaks any inbound links and potentially makes the user look like he or she did something wrong. However, aggrieved YouTube users aren’t finding much success in court, as a recent California appeals court ruling highlighted.

Jan Lewis ran a YouTube channel called “bulbheadmyass”, where she posted videos of her band “Remington Riders.” YouTube deleted her channel in 2012, saying it thought she had spammed other YouTube users in violation of the no-spamming clause in YouTube’s terms of service/TOS. (The actual TOS provision says “You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.” I’m using the euphemism “spam” as a shorthand). YouTube eventually restored Lewis’ account access, which allowed her to restore her videos at new URLs.

The appeals court rejects Lewis’ two primary legal arguments. First, YouTube’s TOS contained a lengthy limitation of liability clause that successfully eliminated Lewis’ claims for any damages:

the limitation of liability clause encompassed Lewis’s claim that YouTube wrongfully failed to include her videos, the number of views of these videos, and the comments on the videos by other YouTube visitors on its Web site….By claiming that YouTube wrongfully deleted her videos, the number of views of the videos, and the comments on the videos, Lewis is claiming that YouTube failed to do as it should by omitting content on its Web site.

Second, Lewis sought to compel YouTube to restore the old URLs, comments and view counts. The court says YouTube’s TOS never promises that:

there is no provision in the Terms of Service that requires YouTube to maintain particular content on the Service or at a particular location on the Service. There is also no provision in the Terms of Service pursuant to which YouTube is obligated to display view counts or comments associated with videos. There is nothing in the Terms of Service even suggesting that YouTube is a storage site for users’ content.

For these reasons, the court dismissed her claim.

While the court’s opinion never uses the term “spam,” it appears that Lewis and other similarly-situated plaintiffs are being caught in what I’ll characterize as YouTube’s anti-spam crackdowns. Ultimately, other YouTube content suppliers and users want YouTube to discourage spammers from overrunning YouTube and undermining the credibility of its systems. It’s a little unclear if YouTube’s anti-spam efforts are over-inclusive and thus inadvertently ensnaring legitimate activity. It’s entirely clear, however, that YouTube won’t be legally liable for its anti-spam initiatives even if it’s being overzealous.

Case citation: Lewis v. YouTube LLC, 2015 WL 9480614 (Cal. App. Ct. Dec. 28, 2015)

January 5th 2016 spam

TCPA Claim Against Non-Sender Fails

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Plaintiffs sued American Eagle Outfitters and Experian, alleging claims under the TCPA for unwanted text messages. American Eagle is the retailer, and Experian provides marketing services. But neither of these entities actually pressed the “send” button. We’ve seen disputes over whether the defendants used an “automatic telephone dialing system” but this particular dispute turned on who actually sent the messages in question.

No direct liability as senders

Plaintiffs implicitly acknowledged Archer, a non-party who had declared bankruptcy, actually sent the messages. The allegations were specific about who did what leading up to the actual sending, but the court notes uses the passive voice for the last step:

1) AEO provides Experian with the campaign request form; 2) AEO deploys to Experian a list of numbers to which texts will be sent (“Campaign Ready File”); 3) Experian sends the information to Archer USA, Inc.’s (“Archer”) texting platform; 4) Experian schedules text messages to be sent; and 5) text messages are sent. [emphasis added]

The text of the statute and cases interpreting it have found that the party who “actually sent the message” can be directly liable.

Plaintiffs argued, citing to the most recent FCC ruling, that a person who does not actually hit send can be so involved in the process that they can be held directly liable. The court disagrees. The FCC’s interpretation is offered in the context of a different part of the statute which uses the word “initiate” rather than “make” (and is applicable to sellers).

No vicarious liability

The court assumes that vicarious liability is cognizable under the TCPA, but says plaintiffs failed to allege any facts regarding the nature of the relationship between Experian and Archer:

Significantly absent from Plaintiffs’ allegations, however, is any factual content regarding the relationship between Experian and Archer. Plaintiffs seem to suggest that the allegations that Experian “had the right to control the sending of the texts” and “in fact controlled and even scheduled the sending of each segment of the texts” are sufficient to plead Experian’s vicarious liability for Archer’s actions. Pls. Opp’n at 12. Indeed, Plaintiffs argue, without support, that “[w]hether Experian Marketing sent the texts via Archer’s messaging platform or whether Archer sent the texts after Experian Marketing directed it to do so is irrelevant to the issue of vicarious liability.” Id. But to plead vicarious liability under the TCPA in accordance with traditional tort principles, Plaintiffs must allege some facts regarding the relationship between an alleged principal and agent (or an alleged agent and sub-agent) and cannot simply allege general control in a vacuum.

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Courts seem to be taking a closer look at TCPA cases. This is a good example of a court taking an unsympathetic view of what looks like a run-of-the-mill TCPA claim. The plaintiffs here are not suing over confirmatory texts or a single text that preceded an opt-out.

This case raises the question of whether the sender, the platform, or the entity advertised should be held liable for unwanted commercial texts. We’ve seen this issue come up in the group text platform and spam/email scenarios, among others.

The court is fairly strict here, and despite the numerous allegations that Experian was the driving force behind the texts, lets it off the hook. The court takes a pretty restrictive view of the path to liability for Experian. While we haven’t seen many rulings delve into the agency issue, the Ninth Circuit issued one from 2014 involving Taco Bell that comes to mind. (“TCPA Claim Against Taco Bell Fails For Lack of Agency”.) And it makes me think this one is appeal-worthy.

Case Citation: Melito v. American Eagle Outfitters, Nos. 14-CV-02440 (VEC), 15-CV-00039 (VEC), 15-CV-02370 (VEC) (S.D.N.Y. Nov. 30, 2015)

Related posts:

Group Text Services Grapple with TCPA Class Actions

Debt Collection Text May Result in Liability under the Telephone Consumer Protection Act — Gutierrez v. Barclays Group

Another Competitive Keyword Advertising Lawsuit Fails–Infogroup v. DatabaseLLC

Shopkick Unable to Shake Text Spam Complaint — Huricks v. Shopkick

Lawsuit Against Adware Vendor Fails–Halperin v. Text Enhance

Path May Be Liable for Text-Spamming Users’ Contact Lists

Sending a “DTF?” Text Message Supports Restraining Order — Finigan v. Weinberg

Court: Customer Consents to Receive Texts by Providing Phone Number to Pharmacy – Pinkard v. Wal-Mart Stores, Inc.

Confirmatory Opt-out Text Message Not Actionable Under the TCPA — Ryabyshchuck v. Citibank

Courts Allows Text Spam Class Action Against Voxer, a Cell Phone Walkie-Talkie App — Hickey v. Voxernet

Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell

Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

Text Spam Class Action Against Jiffy Lube Moves Forward – In re Jiffy Lube Int’l, Inc., Text Spam Litigation

Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent — Ryabyshchuk v. Citibank

December 23rd 2015 Marketing, spam