Originally published at Vox.com on July 19, 2022
Text messaging — with their markedly high “open rates” — is an especially potent form of political outreach: Since 2016, texting has become one of the most appealing ways for campaigns to engage voters or supporters, especially as so many have ditched their landlines.
But as part of a broader effort to crack down on the fast-growing problem of spam calls and texts, mobile carriers like AT&T, T-Mobile, and Verizon have been rolling out a new policy that affects any business, nonprofit, union, or campaign that intends to send at least 3,000 messages per day.
It means that political campaigns and advocacy groups have fewer rights to text you, if you haven’t affirmatively opted in to receive the messages — and it’s causing distress among those groups ahead of the midterms.
The changes — known as “10DLC” for the 10-digit long codes that high-volume businesses and apps use to text local numbers — will require organizations to register with the Campaign Registry, a subsidiary of the Milan-based communications firm Kaleyra. Carriers will impose higher messaging fees and slower delivery rates for any group that fails to register, and in some cases block them from delivering messages altogether.
Every registered group must also limit their texts only to users who have opted-in to receive them, a massive change from the status quo. Progressive groups warn this new requirement will yield dire democratic consequences — particularly for the most marginalized who are typically ignored by elites and politicians. Others suggest these groups have grown too reliant on unsolicited texting, and that it’s not essential to successful mobilization.
Campaigns had a preview of what the future might look like if they fail to comply with the new 10DLC rules. Last month, a Democratic National Committee texting campaign, meant to notify voters that it was primary day, provide them with information on making a voting plan, and invite them to attend a free virtual training on mobilizing others, was suspended after at least five recipients of the roughly 50,000 registered complaints about the unsolicited blasts.
Recipients of the DNC texts had been invited to opt-out of future messages by texting back “stop,” and the DNC said their records indicated that everyone they texted had expressed interest in receiving the messages either by opting in or having affirmatively engaged with the committee before in other ways. Still, the handful of complaints triggered an audit, and the committee’s ability to send messages from that particular number is still suspended.
“This shutdown … is nothing less than the silencing of core political speech at the hands of a private company pursuant to an ambiguous, unwritten policy,” DNC executive director Sam Cornale wrote in a letter to the CEOs of AT&T and T-Mobile. “As we have explained, in the wake of unprecedented voter disenfranchisement efforts, text messages have become a critical tool in combatting misinformation and attempts to disenfranchise in real time. … The health of our democracy demands you act now to change this harmful policy.”
Scott Goodstein, who led Barack Obama’s pioneering texting program during the 2008 cycle and was the lead digital adviser to Bernie Sander’s 2016 campaign, said the Democratic committees’ defense of unsolicited messages is short-sighted.
“The DNC has no incentive to think about this differently,” he told Vox. “Spamming fundraising donor lists works and helps politicians raise a few extra bucks, but spamming low-turnout voters may not help these politicians communicate with this transient but critical portion of the electorate. What if we went into these communities and held different events to get opt-in? It’s a lot more work but that’s the point. They’re thinking short-term and not long-term.”
10DLC is the mobile carrier solution to spam text messaging
There’s little question anymore that people are being flooded with unsolicited texts: Aside from just being annoying, government agencies say the increased spam is leading to higher rates of fraud. In 2020, criminals stole at least $86 million through frauds originating in spam texts — with examples like targeting seniors on Medicare, claiming to offer extended warranties for cars, or impersonating Covid-19 contact tracers. The median amount customers lost was $800.
In 1991, Congress passed the Telephone Consumer Protection Act (TCPA) to stop robocalls and auto-dialers that contacted individuals without their consent. But organizations that send texts have been able to operate in a legal gray area, by having individuals press “send” on mass-texting tech platforms — thus blurring the line between automated and human outreach.
Mobile carriers say their new 10DLC policy is a response not only to customer dissatisfaction but also to a political climate that’s been urging more serious intervention.
Sen. Richard Blumenthal and Rep. Raja Krishnamoorthi, both Democrats, wrote separate letters to the Federal Communications Commission over the last year urging greater attention and action on the issue of spam calls and texts.
The 10DLC policy was supposed to be rolled out last year but was delayed following requests from members of Congress to wait until after the 2021 elections. The changes took effect in March.
Mike Donoghue, the co-founder and CEO of Subtext, a company that connects media organizations, artists, and other creators with audiences over text, said his company has welcomed 10DLC and thinks it will help build and retain trust with the public.
“A lot of other players have tried to ignore it or pretend it’s not going to happen but it’s already happened and we’re not going back,” he told Vox.
Goodstein, who now runs a progressive digital marketing agency called Catalyst Campaigns, says he doesn’t actually believe the 10DLC regulations will be effective in controlling political spam texts, in part because the penalties are so weak and there’s little stopping a company from just contacting individuals who complain or opt-out from a different long-code number.
“It’s just whack-a-mole with 10DLC until there’s real pain,” Goodstein said, noting that with CAN-SPAM, a 2003 federal law passed to block unsolicited email, violators faced hefty fines, prosecutions, and even jail time. “Which is why you didn’t get spam from Pizza Hut,” he added.
Advocates warn 10DLC will lead to voter suppression
Progressive advocacy groups and Democratic campaign leaders have been working for over a year to try and convince mobile carriers to exempt them from 10DLC rules. Democratic lawyers have thus far urged federal campaigns to not register, in part to avoid conceding the point that 10DLC should include political groups.
In a letter sent to the CEO of AT&T, Congressional Black Caucus PAC chairman Rep. Gregory Meeks argued that the proposed 10DLC policies “will lead to the disenfranchisement of minority voters across the country” by limiting their ability to do voter education outreach.
And in February, in joint letters to T-Mobile and AT&T’s CEOs sent by the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee, the Democratic Governors Association, the Democratic Legislative Campaign Committee, and the DNC, the executive directors collectively urged against implementing the opt-in requirement for political texts.
Doing so “would have catastrophic implications for the ability of political parties, candidates, and other political committees to engage with their volunteers to communicate regarding voter education, GOTV messaging, and other essential political speech,” they wrote. “You are proposing to drastically curtail political expression at the core of our democratic system, speech that is at the very heart of First Amendment protections.”
The executive directors pitched what they saw as a compromise plan, where political campaigns and committees would still register with the Campaign Registry, but not be subject to any opt-in requirement so long as they give individuals the option to opt-out. Requiring opt-in “would undermine our democratic process and hinder access to the polls,” they wrote.
Five months later, on July 12, Anthony Russo, vice president of legislative affairs for T-Mobile, wrote back rejecting this idea, saying requiring opt-in is essential to protecting customers. “There is no confusion about this requirement — simply unwillingness to abide by it,” Russo wrote. “While many political, civic-oriented, and other non-profit organizations have the laudable intentions, T-Mobile’s primary concern is for its customers and ensuring they receive only those messages they want to receive.”
Elvin Bruno, the director of mobile fundraising at Grassroots Analytics, a firm that helps Democratic candidates raise money, told Vox the rollout of 10DLC has had a dramatic impact on campaigns so far, especially smaller campaigns on the local and statewide level.
“The regulations have been inconsistent, poorly communicated, and all the deadlines and dates have changed,” he said. “I can’t stress enough how bureaucratic and unclear it has been to navigate, even for folks like us who are working with the largest political operations in the country.”
Republican campaigns haven’t made as much noise against the proposed regulations, though they say 10DLC is part of a larger threat rooted in the power of technology companies to discriminate.
“From Google suppressing Republican GOTV and fundraising emails to mobile carriers censoring and policing political speech, Big Tech is blatantly trampling on First Amendment rights,” said Emma Vaughn, a spokesperson for the Republican National Committee. “Republicans will continue leading the fight to protect our rights against Big Tech billionaires. For them, it’s all about power and control — if they can silence political candidates, they can silence you.”
Mobile carriers, and their trade association, CTIA, say they’ve continuously engaged with political groups and collected feedback throughout the process, but stand by 10DLC and enforcing industry best practices.
“We believe customers should be able to control which entities send them bulk text messages, which is why we’re requiring bulk message senders to acknowledge they have recipients’ consent before participating in our program as a registered sender,” said Alex Byers, a spokesperson for AT&T. “This approach enables customers to receive messages they want and protects them from unwanted robotexts.”
When asked about the concern about blocking get-out-the-vote text messages ahead of the November election, Byers noted that customer complaints are the primary metric carriers would look at to determine if a message is unwanted or spam. “Our experience is that informational texts like these would be highly unlikely to generate many complaints,” he said.
Donoghue of Subtext thinks the professed concern that 10DLC will inhibit voters from learning things like changes to their polling location are largely smokescreens, and most political groups simply resent the idea that they should get consent before texting.
“If you randomly sampled 10 text messages from a given campaign, I suspect the vast majority are going to be asking people to do something, like signing a petition or making a donation,” Donoghue said. “But campaigns shouldn’t want to send messages that people find annoying. I think a lot of folks are starting to realize that.”
The FCC has flipped-flopped on the issue, though more federal intervention may be coming
Back in 2012, Goodstein and his firm Revolution Messaging petitioned the FCC to clarify that the Telephone Consumer Protection Act did not distinguish between emails that turned into texts, and regular texts. This was a texting loophole popular at the time, and Goodstein saw his crusade as a consumer protection mission, given that individuals pay for the cost of receiving text messages, unlike receiving political flyers in the mail, or emails. Even if your phone plan includes unlimited texts, senders are not privy to that information ahead of time.
In late October 2012, just before the presidential election, a Virginia marketing firm that had represented Republican candidates began sending out anonymous texts with attacks against Barack Obama. “If re-elected, Obama will use taxpayer money to fund abortion. Don’t let this happen,” read one of the messages. “Medicare goes bankrupt in 4000 days while Obama plays politics with senior health,” read another. By using the email-to-text loophole, the marketing firm was able to bypass the TCPA requirement for opt-in consent. When reporters eventually figured out who was behind the unsolicited texts, the founder of the firm claimed they were exercising their First Amendment rights.
In 2015, then-FCC chair Tom Wheeler finally ruled on the petition, and clarified that “consumers are entitled to the same consent-based protections for texts as they are for voice calls to wireless numbers.” It was a win for Goodstein and those who believed political texts without opt-in consent were TCPA violations and simply unethical.
But in 2018, the P2P Alliance, a coalition of providers and users of peer-to-peer (P2P) text messaging, filed a new petition with the FCC, asking for exemption from TCPA’s rules. In June 2020, the FCC, chaired by Ajit Pai, issued a ruling affirming P2P was distinct from autodialing, a win for campaigns and advocacy groups that wanted assurance they could contact people without opt-in consent.
Goodstein says the FCC must reverse this decision and close the loopholes that allow political spammers to run amok. The new 10DLC rules, he believes, won’t be enough to stop bad actors. The P2P Alliance spent over $130,000 lobbying in 2021, and over $50,000 this year.
Representatives from the Democratic political committees welcome the FCC’s attention in this area, but they say expecting action ahead of the 2022 elections is unrealistic.
Will Wiquist, an FCC spokesperson, pointed to a proposal the agency’s chairwoman, Jessica Rosenworcel, circulated to her colleagues last October. Rosenworcel proposed launching a rule-making process to require mobile wireless providers to block illegal text messaging. If adopted, the rule-making would explore steps like network level blocking and applying caller authentication standards to text messaging.
“The item has yet to be adopted and remains up for a vote by the full Commission,” said Wiquist.
Heading into November, some progressive advocates and Democratic leaders say the 10DLC rules pose an existential threat to a free and fair election. Restrictions on text messages will enable more voter suppression, they warn, and opportunities for misinformation to spread, unchallenged. Goodstein says the opposite is true, that allowing unsolicited political texts to flow freely will annoy people to the point where they just tune out everything.
“Just like sending hundreds of robocalls a few days before elections, some portion of these undecided voters are going to become disenfranchised,” he said. “They’ll be confused on what to believe, and less motivated to engage.”