SMS: Short Message SPAMs

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Hormel Foods introduced SPAM in 1937. You have to respect a brand that’s been around that long. That doesn’t mean you have to buy or eat it. Certainly, Twinkies were more well regarded than anyone knew until the pulled the plug at Hostess.

SPAM is the butt (rump?) of many jokes. Monty Python portrayed it as inescapable:

Wife: Have you got anything without spam?

Waitress: Well, there’s spam egg sausage and spam, that’s not got much spam in it.

Wife: I don’t want ANY spam!

Any seems harsh? Some SPAM should be ok – or is it? SPAM is also the word we use to describe unwanted, annoying email. Hormel isn’t very happy about that.

This week, Washington state Attorney General Rob McKenna filed a lawsuit against a firm for sending unsolicited text messages to Washington residents. Supposedly, state and federal laws threaten damages of $500 per violation. This may be the first lawsuits by a state attorney general targeting spamming via text message.

The accused is an Orlando, FL company called Dinav Holding. The company was sending out solicitations for payday loans. Even worse, the loans are from institutions outside the state (at least unlicensed by the state). The Attorney General accuses Dinav of violating the federal Telephone Consumer Protection Act; the Washington State Commercial Electronic Mail Act; and the Washington State Consumer Protection Act. At $500 per violation, it could add up almost as fast as SMS fees themselves.

Personally, I love SPAM. That’s why I order the spam spam spam spam spam spam spam baked beans spam spam spam and spam!

Part of the merits of the case is that many people have pay per text plans or a limited number of texts to use, which can make unsolicited text messaging costly for subscribers who go over their limits. I understand and sympathize. However, I don’t think that aspect of the case is really Dinav’s fault. That’s just a poorly designed and stupid (albeit common) way to design a service plan.

I have the right to accept or reject calls. CallerID makes this easier, and I can reject specific calls. But there is no way to accept/reject SMS/text messages selectively. Generally, when there is a usage component to a service, said usage should be controllable by the customer. I can’t think of another example where the usage is determined, without permission, by external third parties.

Remember those silly lawsuits that said if a computer login screen said “welcome,” that it applied to hackers too? That’s why login screens always say authorized users only). I think a mobile number basically says welcome. “Hey, no one authorized you to send a text to that person” just doesn’t make a lot of sense to me.

What is the difference between a welcomed text message and an unsolicited text message? Is a wrong number text unsolicited? Do unsolicited messages have some form of an offer? If so, what’s an offer? “Let’s have lunch?” sounds like an offer.

I certainly don’t mean to defend Dinav. I am sure they are slimy bastards. I don’t want to receive unsolicited crap on my mobile device either. But I think this is a murky and dangerous area. Is a Florida firm really supposed to know the state regulations of each jurisdiction of mobile numbers? Is it based on where the number belongs per North American numbering? Or does it apply to where the phone is currently located? Or perhaps it applies to neither of those, but to the legal residence of the rightful mobile number owner? Does traveling from state to state change the legality of what kind of text messages can be received?

These are tough questions. And a case like this probably needs to work its way thru the courts. Unfortunately, this is the wrong one. The damages seem pretty weak. The case reports Dinav sent texts for two days to Washington residents. There’s no mention of fraudulent offers or other illegal activities. Dinav will cough up a plea and pay $10,000 just to settle the matter.

Perhaps the Washington State AG is just a bit bored since marijuana is suddenly legal there.

If you think Dinav is guilty and should pay $500 per violation, send ‘yes’ to Washington’s judicial text line. Though you may be charged $500 plus standard SMS rates apply.

Dave Michels