I have been
trying to reach you . . .
Trina Rich
. . . about your car’s extended warranty. ๐
Noah Duguid decided to do something about unwanted contact and his annoyance with not being removed from a contact list.
Facebook, Inc. v. Duguid (https://www.supremecourt.gov/opinions/20pdf/19-511_p86b.pdf)
Noah Duguid was fed up with receiving unwanted contact from Facebook security regarding unauthorized logins to a Facebook account that he did not create and never created an account on Facebook. Duguid tried to stop the contact and was unsuccessful. Duguid filed a putative class action against Facebook alleging that Facebook violated the Telephone Consumer Protection Act (TCPA). The case was filed in the U.S. District Court for the Norther District of California. Facebook moved to dismiss the case and the U.S. District Court agreed and dismissed with prejudice.
Duguid appealed to the Ninth Circuit Court of Appeals who
reversed the dismissal and found the arguments compelling and applicable to Facebook
and their contact system. Facebook appealed to the U.S. Supreme Court and the
court agreed to hear the case.
The issue in this case is based on the reading of the following portion of the Telephone Consumer Protection Act of 1991 (TCPA).
47 U.S.C. § 227
(a)(1) states the following:
“(a) Definitions.—As used in this section—
(1) The term “automatic telephone
dialing system” means equipment which has the capacity—
(A) to store or produce telephone
numbers to be called, using a random or sequential number generator; and
(B) to dial such
numbers.”
Facebook argued that an automatic telephone dialing system
must have the capacity to generate a “random or sequential number generator “ which did not apply to their programming while
Duguid argued that “using a random or sequential number generator” was not a
requirement and that grammar rules and punctuation meant this part did not apply.
The crux of this argument in lay terms is grammar and punctuation matter and can
change the meaning of a sentence.
The U.S. Supreme Court heard the case on April 1, 2021 (not
an April Fools joke). The opinion was written by Justice Sotomayor. The Supreme
Court analyzed the information before the court and the disagreement between the
U.S. District Court and the Ninth Circuit Court of Appeals. The U.S. Supreme Court opined in depth regarding the grammar of the statute, the applicable
grammar rules, and the natural reading of the statute. Feel free to read the opinion in depth to learn more about these rules.
My favorite example from the opinion regarding how sentences with similar structures should be read is as follows:
“Imagine if a teacher announced that 'students
must not complete or check any homework to be turned in for a grade, using
online homework-help websites.' It would be
strange to read that rule as prohibiting students from completing homework
altogether, with or without online support.” Facebook, Inc. V. Duguid, 19
U.S. 511 (2021)
The U.S. Supreme Court agreed with Facebook regarding the reading of the statute, reversed the finding of the Ninth Circuit Court of Appeals, and remanded the case for further proceedings consistent with the opinion.
Questions to Answer:
- With two different courts reading the statue two different ways, which reading do you agree with and why?
- With the statute effective in 1991, should Congress reconsider the definition to include more modern technology?
- Finally, if you were Duguid, what would you do next?
After reviewing this appeal, I know I will not look at grammar
the same way. Reading statutes, rules, policies, and more all require
some analysis beyond grammar rules including consideration of the intent and the normal reading of the sentence. Until
all writing is perfect, the argument over words and their intended or actual
meaning will continue both in and out of court.
As much as it pains me, I have to agree with facebook here. I think getting *too* hung up on grammar and sentences structure is a bad way of interpreting law. I think considering what the law is trying to do is far more important than how the meaning may change by moving a comma a word or two to the left or right.
ReplyDeleteI also think that Congress needs to either (a)come up with a way of writing laws to make them more evergreen, or (b) build in an automatic review process for laws--especially those dealing with technology. Given how rapidly things change, it seems reasonable to review things at least every 5 years. I realize this will likely never happen because of the huge burden it would impose, but it would be so helpful if it did.
Finally, if I were Duguid, I'd probably just give it up at this point. It's just a part of my life that I get a bunch of unwanted phone calls (the "IRS" called me from an Australian number the other day to advise me of a problem with my most recent tax return, which gave me a chuckle). My policy is to not answer if it's an unfamiliar number, and bank on the fact that if it is important the person will leave me a message.
It’s hilarious that a case like this exists and I agree with the Supreme Court's opinion. By Duguid's interpretation, all cellphones would fall under the same scrutiny since they have the capability to store and dial telephone numbers, including systems that notify faculty, staff, and students of an active shooter in the area. Because Facebook’s notification system doesn’t generate random or sequential numbers, I agree that it’s not considered an autodialer. I think Duguid’s intention was to protect consumer privacy and prevent robocalls, but in reality Facebook’s notification system was legitimately trying to reach someone with a compromised account. I assume there was an error in Facebook’s records. I'm sure that after litigation, Facebook fixed Duguid's issue (at least I hope); otherwise, I would accept the daily annoyance like everyone else or utilize Google Assistant to screen the calls before answering.
ReplyDeleteI followed a similar case a few years ago regarding punctuation. Flickinger v. Oakhurst Dairy, 2006 ME 69, 899 A.2d 784 was regarding overtime pay for employees.
ReplyDeleteThe canning, processing, preserving, freezing, drying, marketing, storing, ๐ฝ๐ฎ๐ฐ๐ธ๐ถ๐ป๐ด ๐ณ๐ผ๐ฟ ๐๐ต๐ถ๐ฝ๐บ๐ฒ๐ป๐ ๐ผ๐ฟ ๐ฑ๐ถ๐๐๐ฟ๐ถ๐ฏ๐๐๐ถ๐ผ๐ป ๐ผ๐ณ:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods.
The court ruled that it was not clear whether the law exempted the distribution of the three categories that followed, or if it exempted packing for the shipment or distribution of them.
Those employees did get their overtime thanks to focusing on the punctuation.
I disagree with Megan in siding with Facebook. I think if FB is going to engage in that behavior, it better use its resources to ensure they are following both the spirit and the ๐น๐ฒ๐๐๐ฒ๐ฟ ๐ผ๐ณ ๐๐ต๐ฒ ๐น๐ฎ๐.
It is unbelievable to me that our supreme court justices are caught up in deciding the rules of punctuation. Punctuation is critical, but I agree with Megan, the problem should have been addressed at the time the statute was constructed. Let's hire an English teach to fix the punctuation on statutes. I know one from my high school years.๐
ReplyDeleteI agree with the ruling of the Supreme Court. If Duguid is looking for revenge, he could cancel his FaceBook account . . .or find someone with more FaceBook savvy than he has to help him fix his account. As Ariel noted, the calls coming from FaceBook, while recorded calls were meant for him, not random.
Unfortunately, this lawsuit doesn't meet the criteria for grammatical and punctuation errors. If facebook shared a false statement about another that unjustly harmed a customer's reputation according to the law of defamation (published, false, injurious, and unprilveaged), then go for it! Grammatical and punctuation errors do not harm anyone, and facebook simply can fix or provide some clarifications. This is a piece of cake to a solution.
ReplyDeleteIf I am were Duguid, I would not continue this trial, and it would be embarrassing and a waste of money on the lawsuit.
"Until all writing is perfect, the argument over words and their intended or actual meaning will continue both in and out of court." I think Trina's summation hits the nail on the head. And this will be the case until the end of time.
ReplyDeleteI don't think Duguid had any case in the first place and should certainly terminate any proceedings. Facebook notices and robocalls are not even in the same category. They're both annoying and I think have serious legal questions. Still, I don't believe the 9th circuit nor the Supreme Court should have listened to this case. And it doesn't look like any realistic guiding opinion will prove helpful other than this issue is still a problem.
This case reminds me of something my eyes have been opened to since starting this program. The intent behind cases can get pushed to the back burner due to procedural distractions and they then become about something else entirely. While the crux of the case began with unwanted phone calls and Duguid’s need to get them to stop, the defense ended up being something procedural that didn’t address the real issue at all. So, with that in mind, I have to reluctantly agree with the court’s decision. What I curious about, is why the Supreme Court decided to hear this case in the first place. Of the thousands of cases they are asked to grant certiorari to, this one doesn’t seem to merit their limited time.
ReplyDeleteI do think that Congress needs to update the definition to include newer technology. I graduated from high school in 1991 and if someone were to tell me that the internet and social media would be such a big force later on in life, I wouldn’t believe them. It just wasn’t something that existed or could be imagined. It’s time to address it.
If I were Duguid, I would cut ties with Facebook and go on with my life. If he feels so strongly about it, maybe he should be an active participant in helping draft legislation addressing this specific issue. He could become an advocate that educates the public about the data social media companies actually do have access to and push for change in a way that is productive.
This is an interesting case Trina. Thank you for sharing it. I also really liked the caption drawing into the subject as the extended warranty calls are of nuisance. I can see why Duguid would want to take suit.
ReplyDeleteAs for the court rulings, sadly I would have to agree with Facebook for the reasons listed above. I also believe that there should be more current legislation around technology. If I was Duguid, I think that is what I would spend my time refocusing on, though it was good for him to bring suit and draw attention to the issue. Sometimes that is enough to get companies to shift their course, even if the ruling is in their favor. A lot of times they may make adjustments to not take further risk.
I like Stephanie's thought of being an advocate and educating others. In thinking about some of the cases we have read, and hearing the statutes used, I wonder if there are some more creative approaches that may end in the same result Duguid was seeking.
For me, this case highlights the difficulty of navigating the US legal framework. In particular, I think of people with limited English proficiency and their navigation of such a complex system where grammatical errors can mean life or death (sorry, grandma).
ReplyDeleteThis post also made me think of the More Perfect's podcast episode from Season 3, Episodes 1 and 3. The third episode of Season 3 goes into Amendments 9, 10, and 11 and the podcast explains that these amendments "mean more than they say, and what they say is often extremely confusing." It was interesting listening to the presenters explain how the word "privacy" is not mentioned anywhere in the constitution but the ninth amendment alludes to it... definitely more abstract than punctuation.
On the other hand, episode 1 talks about the overall structure of the Bill of Rights. Specifically how the First Amendment has the six Rights sequenced. The Second Amendment also is interesting as the three commas have caused quite a stir in the gun rights communities.
Thank you for sharing this post. I do think the world of legality is particularly shaped by the comma, semi-colon, and even the m dash.
I am late to chime in - but what an interesting and thought provoking case. The complexities of grammar, punctuation and the Supreme Court is mind-blowing. I concur with Sue and Megan on this one. I like to cut to the chase and get to the root of the issue. So many times in the legal arena we focus on the little fish when its the big fish that really matters. If I were Duguid, I'd likely be proud of the battle I fought, but would concede and terminate my Facebook account. There are so many social media arenas today, we have options just as we have the right to not answer unsolicited calls from numbers we do not recognize. Thank you for this very interesting post!!
ReplyDelete