So next month a bunch of you will stand in line to vote for either a lady who couldn’t pass the bar or a guy who let his followers try to overthrow our government and plans to pardon them for it.

*enter thumbs up emoji here*

Have fun with that.

Between now and then, however, a ton of political SMS messages will be sent to the nation’s cell phones trying to convince them that one side or the other is the greater threat to “democracy”–whatever that means these days. Most of these messages will go sailing through our nations text aggregators although many of the messages are sent without consent.

While The Campaign Registry serves as a brake for political speech–you have to register your campaign message with a foreign entity before you can send messages (seriously)–for the most part of the aggregators and carriers look the other way when it comes to political messages (at least as opposed to commercial messages, which they routinely block without cause even when the message is consented to.)

As a result if you live in Tampa you may not receive an important hurricane update from you electric company but you WILL receive 30 texts a day from Kathy Castor.

But what is the law regarding the restrictions on political messages?

It is, and always has been, the TCPA.

So first, the TCPA DOES apply to political speech same as any other speech. And that actually makes the statute more constitutional for some reason (don’t ask, too long of a story to tell right no.)

Second, the same general restrictions apply– no prerecorded, artificial or AI voice messages without express consent to a cell phone and no autodialed calls or texts to a cell phone without express consent.

In this context, however, express consent is pretty easy to show. If you gave your phone number to a candidate, campaign, or political party at pretty much anytime you probably consented– and revoking that consent can be a massive game of whack-a-mole given the labyrinthine models deployed by campaigns, parties and PAC infrastructure to hide money and evade election campaign finance laws. Wait… yeah, no that’s right.

While many of you receiving messages likely did consent at some point in your 20s when you used to care about politics many of you never consented and you are still receiving messages.

Why?

Well, the US Supreme Court in Facebook issued a ruling that somewhat limited the ATDS definition in the TCPA, and that opens up a hole for political text and callers to use to contact you without consent.

The truth is, however, very few people actually understand the current TCPA ATDS definition. (In fact some pretty knowledgeable lawyers are going to be debate me on the topic at the big DNC TCPA Summit in Florida in December and it will actually be pretty interesting.)

But here are a few things to keep in mind:

1. A system can be an ATDS even if there is human intervention used to send the message. So a “click-to-dial” or “peer-to-peer” system can ABSOLUTELY be an ATDS, depending on how the system is configured.
2. Conversely, a “blast” text platform may NOT be an ATDS even if it sends thousands of messages at a time, again depending on how the system is configured.
3. In some courts even systems meeting the Supreme Court’s definition of an ATDS will NOT be treated as an ATDS because different courts have narrowed the definition even further and require the system to actually create random phone numbers.

Those of you in the political messaging game be cautious of anyone who tells you their system is “peer-to-peer” or “click-to-send” and that, therefore, their messages are legal. No way. That is not enough information to know whether an ATDS is used.

And for those of you receiving mass blast text messages from political candidates, believe it or not those messages may be perfectly legal.