Anonymous text messages containing disturbing content — such as claiming Black Americans had been “selected to pick cotton” — were sent the day after Election Day, targeting recipients in more than 20 states.
These types of threatening, racist messages should have never been able to be sent. Unfortunately, our country doesn’t have strict data privacy protections for citizens’ cellphone numbers and has continued to loosen federal wireless gateway spam rules. It was only a matter of time before someone spewed hate-filled messages through these channels.
It didn’t used to be this way, and it doesn’t have to be.
In 2008, broadcast text messaging was a new form of communication that was strictly governed and spam-free. That year, I had the privilege of sending some of our nation’s first text messages for civic engagement. It took months to set up Barack Obama’s unique shortcode, a five-digit phone number authorized to send text messages citizens had to affirmatively opt in to receive. The opt-in was the primary, but not the only, safeguard for the experience. Shortcodes, as is the case today, must be provisioned through a single, national registry, approved by each mobile carrier and monitored on an ongoing basis.
In 2008 this was all the more important because U.S. consumers were paying premium pricing for text messaging packages. Texting was a clean network, with a nearly 100 percent read rate and zero spam. During this golden era of text messaging, politicians universally agreed that spamming citizens was bad. The 1991 Telecommunications Consumer Protections Act and the Federal Trade Commission’s CAN-SPAM Act of 2003 prevented anyone from sending out massive amounts of unwanted spam messages and gave the industry authority to self-govern. These laws came with enormous per-message penalties and even jail time.
Unfortunately, by 2012, the innovation pendulum had swung, as it inevitably does, from good to evil. Bad actors figured out ways to use text messaging to suppress voters and spread anonymous hate.
Within four years from Obama’s first text messages that helped turn out a new generation of voters, nefarious operatives were working to skirt the Telecommunications Consumer Protections Act. Right-wing groups used email-to-text-message spam to broadcast hate-filled mistruths and disinformation to suppress voter turnout. These texts were pushed to targeted voters in late October with messages that stated, “Obama supports homosexuality and its radical agenda” and “If re-elected, Obama will use taxpayer money to fund abortion.
I was enraged to watch these anonymous spam messages be used to confuse voters and cause chaos, so I petitioned the Federal Communications Commission to close any loopholes that allowed this type of spam to be spewed to millions of voters. After three years, the FCC finally issued a declarative ruling in my team’s favor, strengthening the laws against such activity.
For a brief moment, the messaging gateway was again protected. The courts were prosecuting violators and even sent a known messaging spammer to 27 months of jail time in 2016. The Federal Trade Commission did its part and forced Uber to pay $20 million for violating the Telecommunications Consumer Protections Act and sending unwanted text messages in 2017.
So, what has happened since?
Like all things in DC, policy can shift with an administration change and a little lobbying. After the 2016 election, the 10-digit text message platforms formed an association. They lobbied to loosen the rules for political campaigns and allow 10-digit phone numbers to send “peer-to-peer” messages under the new Trump administration. It’s this loophole that has blown up your, mine and every other American’s phone inbox every election cycle since.
Peer-to-peer text platforms dominate the text messaging abuse that’s grown from commonplace to cancerous. Making matters worse, the Supreme Court ruled against Telecommunications Consumer Protections Act protections in 2021 in the case of Facebook v. Duguid, changing the definition of “auto-dialer” and opening up the ability to allow more text spam to flow.
In 2023, the current FCC under President Biden addressed some issues surrounding known scam text messagers but left the peer-to-peer loophole untouched. Unfortunately, and as we have all learned, politicians of all parties like uploading their donor lists and blasting them with funding requests.
It does not have to be this way. Whether last week’s hate messages were coming from a nefarious source inside or outside the U.S., they should not have been able to register so many phone numbers, upload private cellphone data, or reach the massive scale of recipients in 20 states without being stopped.
Here are simple fixes to end most of the unwanted text spam in the USA:
- The carriers should immediately shut down the ability to send massive message traffic without proper registration via a shortcode or 10 digit long-code registry. There are two such registries in place: Campaign Verify (exclusively for U.S. political campaigns and PACs), and Campaign Registry (for all such traffic). Both can be circumvented. Campaign Verify and Campaign Registry confirmed these post-Election Day racist messages were not sent through phone numbers registered on either system they operate. This is no surprise. — spammers tend not to follow policy. These messages travel a route exclusively allowed by the carriers and, as such, carriers can stop them at the relative flick of a switch and close the unregistered text spam highway.
- The cell phone industry (carriers and operating system providers) can do more to protect customers from unwanted spam. Google Voice blocks many of these messages, and each carrier can do similar. While this “open market” solution doesn’t solve the issue for all citizens, maybe if one carrier steps forward, the consumer demand will be there for the others to follow suit.
- The FCC needs to get serious about spam protection and require everyone to adhere to a strict Do Not Text Message List with consequences for violations.
- Congress should legislate fines for selling, sharing, and uploading cellphone data. This will quickly force the entire ecosystem to think twice before selling data and sending spam messages.
Scott Goodstein was the external online director for Barack Obama’s 2008 presidential campaign and oversaw the campaign’s social media platforms, mobile technology and lifestyle marketing. He was a lead digital strategist on Bernie Sanders’s 2016 campaign and is the founder of CatalystCampaigns.com.
