Political Robocalls Here to Stay Despite Effect on Voter Participation, Misinformation: Experts

Political robocalls made to cellphones are prohibited without the called party’s prior express consent under the Telephone Consumer Protection Act. Political robocalls aren't prohibited when made to a landline phone without consent. Americans received about 852 million political robocalls and 18.5 billion political robotexts in 2020, according TelTech's RoboKiller. The company estimated consumers received nearly 94 million robocalls and more than 2 billion text messages in November 2020 related to the presidential election.

The number of robocalls and robotexts sent during the 2020 election cycle reached “record levels,” said Giulia Porter, RoboKiller vice president-marketing, in part because much of the technology behind political texting “really wasn’t around as much and as prominently” in earlier cycles. Most robocalls the company saw were sent with prerecorded messages, Porter said.

In the week leading up to the 2020 presidential election, the FCC received more than 500 consumer complaints, according to documents we obtained and reviewed through a Freedom of Information Act request. One New York consumer complained about receiving a prerecorded call from an unidentified person and hadn't given consent. An Ohio consumer reported receiving a prerecorded call from a blocked caller despite being on the National Do Not Call Registry. Porter said RoboKiller received user feedback during the election cycle about people unsubscribing from a robocaller but continuing to receive calls.

An FCC spokesperson said Chairwoman Jessica Rosenworcel “supports robust citizen participation,” but the FCC “does not target political calls specifically.” If robocalls “happen to be political in nature and violate our robocall or spoofing rules, those rules would be applied in our enforcement actions, regardless of the nature of the call,” he said. All prerecorded voice message calls, campaign-related and otherwise, must clearly state at the beginning of the prerecorded message the identity of the individual or entity initiating the call. They must also provide the telephone number of the calling party either during or after the message.

Some political calls and texts consumers complained to the FCC about during the 2020 election cycle probably weren't made with an autodialer, and therefore don’t require prior express consent, said Mac Murray & Shuster's Michele Shuster: “It’s perfectly legal to make telephone calls if you don’t use a prerecorded message or an automatic telephone dialing system (ATDS)” (see 2204220042).

If a consumer received a robocall or text that's governed by TCPA, it may be because the consumer gave consent when signing up for messages from another organization that may have listed entities it would share data with on its consent form, Shuster said. It “happens all the time,” she said, but organizations can transfer lists of phone numbers without having prior consent if calls aren’t being made using ATDS.

Although most consumers reported unsolicited robocalls from political candidates or organizations about the 2020 election, many said they also received unwanted robotexts. One Arkansas consumer reported receiving 22 texts from a political party despite asking for them to stop. A North Carolina consumer said texts about whether and how they voted were “an extreme invasion of privac[y].”

Robotexts are treated as calls under TCPA and subject to the same prohibitions as robocalls to wireless phones. Rosenworcel circulated an NPRM in October that “proposed requiring mobile wireless providers to block illegal text messaging” and "update commission policies to stop more unwanted robotexts,” a spokesperson said, and she “hopes to see swift action from her colleagues on this item.” An aide told us it's likely the item will move slowly.

The severity of robocalls and robotexts’ impact on voter intimidation is “prevalent in the ecosystem,” said David Brody, Lawyers’ Committee for Civil Rights Under Law managing attorney-digital justice initiative, but it’s “extremely difficult to quantify.” The “one-on-one communication” of a robocall or robotext is also “invasive and impacting" because “it’s difficult to trace and attribute the call,” he said.

Intimidating robocalls and robotexts about elections or voting are usually sent anonymously or “in a way where it’s really difficult to figure out where it came from,” Brody said. It’s difficult to “identify people who received the call and who were injured by it,” he said, and these kinds of robocalls make it more difficult for the “legitimate stuff to get the attention it deserves.” Robotexts including misinformation during the 2020 election were “highly targeted” to specific people and states or regions, Porter said.

Legal Action

The FCC has taken some action on suspected illegal political campaign-related robocalls in recent years. The Telephone Consumer Protection Act gives the FCC authority to issue a notice of apparent liability without issuing a citation first, and it did so in 2021 against John Burkman and Jacob Wohl for making 1,141 unlawful prerecorded calls to wireless phone numbers without prior express consent (see 2108240082). The commission proposed a $5 million fine after an Enforcement Bureau investigation found Burkman and Wohl sent prerecorded messages to potential voters that said their personal information would be used by law enforcement and credit card companies if they voted by mail.

The Lawyers’ Committee filed a lawsuit against Burkman and Wohl in October 2020 under the Voting Rights Act and Ku Klux Klan Act. A U.S District Court for the Southern District of New York granted the group a temporary restraining order that prohibited the two men from sending any additional robocalls or robotexts without written express consent throughout the rest of the 2020 election.

“Because of the vastly greater population they can reach instantly with false and dreadful information, contemporary means of voter intimidation may be more detrimental to free elections than the approaches taken for that purpose in past eras,” wrote Judge Victor Marrero in his October 2020 order, calling Burkman and Wohl's actions "electoral terror using telephones, computers, and modern technology." The case, no. 1:20-cv-08668, is ongoing, as the Lawyers' Committee and National Coalition on Black Civic Participation are in a discovery phase for more information about the robocall campaign.

Not all political calls and texts are harmful, Brody said, and can “be really good, useful … information” about how to register to vote or where a person’s polling place is. It’s “worth considering … the role that data brokers play in this,” he said. Not having a fully staffed FCC and FTC “significantly impairs their ability to take action on these problems,” Brody said, saying Congress should pass privacy legislation.

With the 2022 midterm election cycle underway, RoboKiller is watching to see whether the use of political texts will continue to grow in the same direction as it did in 2020, Porter said. If it does, that may indicate that the trend “is here to stay for the foreseeable future, and probably … for the next presidential election,” she said.