(Reuters) – If it were possible for the U.S. Supreme Court simply to declare a statute obsolete, Justice Samuel Alito said during oral arguments Tuesday in Duguid v. Facebook, the 1991 Telephone Consumer Protection Act would be a likely candidate. Justice Clarence Thomas elaborated on the same point: When the TCPA was enacted in 1991, he said, pagers were in wide use, cellphones were “the size of a loaf of bread,” and consumers had to pay extra for caller ID.
The law has become “almost anachronistic, if not vestigial,” the justice said. “At what point,” Thomas mused, “do we say this statute is an ill fit for current technology?”
Of course, the justices can’t simply ditch the statute at the heart of a case they agreed to hear in order to decide whether defendants can be liable for sending unwanted text messages to cellphone numbers stored in automated dialing systems. But the Supreme Court seemed worried Tuesday about the consequences of attempting to interpret a law written to address problems in the world of 1991 to facts of the world in 2020. In particular, Justices Sonia Sotomayor and Neil Gorsuch fretted that every cellphone user could end up tagged with civil or criminal exposure under the TCPA – an argument that Facebook has advanced but that lower appellate courts have called overblown.
The justices’ questions about the real-world consequences of their holding in the case – and their frustration with the exercise of applying an old law to new facts – suggested that they do not regard the case as a strict matter of grammar or statutory construction. Some background on that. In 1991, Congress was concerned about telemarketers that used random number generators to jam certain phone lines – including cellphone lines – with robocalls. Lawmakers drafted the TCPA to impose liability for nonconsensual calls from automated dialing systems with the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator.”
Those random number generators have become obsolete as phone tech and usage have changed. TCPA litigation, as I’ve written, now more often focuses on automated calls or texts from companies’ databases of stored phone numbers. Those numbers are usually supplied by consenting consumers – but companies get sued under the TCPA when they send calls or texts to phone line owners who haven’t consented, often because the phone number was reassigned from a previously consenting owner. That’s what apparently happened in the Duguid case, in which Duguid received security alert texts from Facebook even though he did not have a Facebook account and had not consented to receive the messages.
Facebook and the Justice Department contend that the statutory phrase “using a random or sequential number generator” applies to both the verbs “store” and “produce,” so defendants are not liable for placing automated calls to stored numbers unless those stored numbers were produced by a random number generator. The TCPA plaintiff Noah Duguid argues the contrary interpretation: The “random number generator” phrase applies only to the verb “produce,” so defendants are liable for using an automated system to call stored numbers without consent.
All three of the lawyers who argued Tuesday: Facebook counsel Paul Clement of Kirkland & Ellis; Jonathan Ellis of the Justice Department, which backs Facebook; and legal lexicographer Bryan Garner, who represents Duguid, told the justices in their introductory statements that their interpretations of the statute flow ineluctably from the rules of grammar and the canons of construction. (That fact alone is a strong hint that neither grammar nor statutory interpretation offer ineluctable answers to the puzzle.)
Some of the justices engaged on the grammatical nitty-gritty. Justice Elena Kagan, for instance, offered Clement the hypothetical of a law that said it was illegal “to stab or shoot another person using a firearm.” Would she be covered by the law, Kagan asked, “if I stabbed somebody with a knife?” (Clement said there’s not a similar “logical inconsistency or linguistic impossibility” in the TCPA’s language about storing numbers generated by an automated device.) Kagan also pressed Garner, the author of a shelf of books about legal writing, to admit that he was positing an ungrammatical reading of the statute. (Garner insisted that under his reading, the key sentence was “awkward” and “unusual,” but not ungrammatical.)
Justices Kagan and Alito asked Clement and DOJ’s Ellis why, if Congress’ concern was only the use of random number generators, lawmakers needed to prohibit both the production and storage of the numbers. Alito asked whether there were automated systems at the time that produced random numbers only to be stored, not dialed. Ellis and Clement both drew an analogy to electric systems that generate and store power, arguing that Congress meant to cover both dialing and storage of randomly generated numbers.
But Chief Justice John Roberts jousted with Duguid counsel Garner about using fancy linguistic rules to interpret the statute. “You agree, don’t you, that our objective is to settle upon the most natural meaning of the statutory language to an ordinary speaker of English, right?” the chief justice asked. “We don’t assume that the ordinary speaker is applying those canons or rules of syntax at all, right?”
Garner argued repeatedly that his statutory interpretation was not only consistent with the canons of construction but was also consistent with Congress’ intent of protecting privacy. That was a key theme of his presentation: Unwanted texts from automated phone dialing systems like Facebook’s are precisely the sort of intrusion that Congress intended the TCPA to prohibit.
But Justices Gorsuch, Alito, Sotomayor and Amy Coney Barrett seemed concerned about what Justice Sotomayor called the “logical consequence” of Garner’s position: “Every cell phone owner would be subject to the harsh criminal and civil penalties of the TCPA.”
Garner insisted that phone systems are not automated under the TCPA if they involve “human intervention.” But Justice Alito pointed out that every computer process requires some degree of human intervention, if only to launch the process. Justice Barrett raised the issue of the automatic reply feature that’s standard on most cell phones. If she programmed her phone to send automatic replies when she was driving, she said, might she be liable under the TCPA? Garner said not if her recipients had consented. Similarly, he told Justice Sotomayor that email blasts and group texts and Zoom invitations are “not a problem. The difficulty is when people’s privacy is being invaded. That’s what the statute was driving at.”
TCPA plaintiffs’ lawyer Sergei Lemberg, who represented Duguid in the lower courts and brought in Garner to argue the case at the Supreme Court, said in an email that he thought the argument went well for his side. “At bottom, Facebook is arguing that Congress wrote a stupid law,” he said. “While some justices appeared to swing this way or that, I believe we will prevail, because the text, history and logic of the law is on our side.”
Facebook emphasized in an email statement that the case did not involve marketing robocalls but security alerts designed to inform consenting Facebook users that their accounts had been accessed without authorization. The TCPA, Facebook said, “aims to stop robocalls and randomized spam calls, not targeted security alerts.”