THIS IS A TEST: Presidential Alert Probably Didn’t Violate TCPA (Probably) but did it Violate Common Law Privacy Rights or those Afforded by the First and Fourth Amendment? New York Plaintiffs Test it Out.

three person holding smartphones

Photo by rawpixel.com on Pexels.com

Last Wednesday, most of us received a jarring alert on our cellphones at approximately 2:18 p.m. (EST) It read, “THIS IS A TEST of the National Wireless System. No action is required.” This was a test of the Wireless Emergency Alert (“WEA”) system, commonly known as the “Presidential Alert.” It was sent to the majority of mobile devices in the United States in a format similar to Amber Alerts for missing children and Severe Weather Notifications. WEA works by sending emergency alerts to every cell phone carrier in the country, which then pushes the alerts to every cell phone tower in the affected area – or the entire country in the case of a Presidential Alert.

In contrast to the TCPA regime of requiring prior consent for certain types of calls and texts, the FCC’s framework for WEA explicitly states that the subscribers of all participating wireless carriers are automatically opted in to receive all WEA alerts sent from the Federal Emergency Management Agency (“FEMA”) to the wireless carriers for dissemination, regardless of whether the cost of the call or text is borne by the recipient. This alert system is distinct from that of commercial mobile text messaging as it relies upon a designated federal government entity, FEMA, acting as the gateway to authenticate the alerts and then submitted to wireless carriers for distribution to subscribers. Additionally, according to FEMA, the alert is not a text message but an audio and text warning similar to other emergency messages. However, unlike those messages, cell phone users cannot turn off or opt-out of the Presidential Alerts.

Given the ubiquitous nature of cell phones, the Presidential Alerts are an effective way for the government to reach Americans to convey emergency warnings – but there is an argument to be made that this particular test Presidential Alert was not sent out as an emergency warning, but rather was just a “test” for potential emergency alerts – bothering many Americans. And if this test alert doesn’t fall within an emergency exception, could the Presidential Alert perhaps run afoul the TCPA? Maybe, but probably not.

The reasons are several. First, the alert is probably not a “call” that was “made” to a telephone number assigned to a wireless carrier, since it was blasted to all carriers for delivery to all numbers. Then again, text messages and ringless voicemails have been considered calls because they are “attempts to communicate by phone,” which the Presidential alert certainly does as well. Next, the alert was probably sent with “express consent” of a “called party” since wireless subscribers are deemed to agree that these messages can be sent as a condition of cell phone subscribership (see above), but there might be instances when a non-subscriber is using the phone, which begs the question of whether the subscriber’s consent is valid to allow calls to a third-party “regular user.” Finally,  the government is probably not a “person” subject to the Act after the FCC’s Broadnet ruling back in 2016. Then again the FCC is set to reconsider Broadnet in connection with its new Public Notice so maybe, just maybe, the alert did violate the TCPA. What a class settlement that could yield!

Setting aside the legality of the text from a TCPA perspective, many people were confused, offended or annoyed by the “test” alert and #PresidentialAlert quickly became a trending topic on Twitter. Some were annoyed because of political posturing centered around the alert system, some confused as to whether it was another mistake alert similar to the one sent out earlier this year by the Hawaii Emergency Management Agency, while others simply complained that it interrupted their matinee movie showing.

Just before the alert was sent out, Judge Katherine Polk Failla, rejected three self-represented New Yorkers’ request for a preliminary injunction to halt the test of the Presidential Alert system, apparently finding Plaintiffs’ claims “too speculative.” The New York Plaintiffs had filed its lawsuit, Nicholas v. Trump, case number 1:18-cv-08828, on September 26, 2018 in the Southern District Court of New York against Donald Trump and the head of FEMA, arguing that the new system violates First and Fourth Amendments of the U.S. Constitution.

In their complaint, the Plaintiffs proclaim that they are “American citizens who do not wish to receive text messages, or messages of any kind, on any topic or subject, from Defendant Trump.” Citing the Carpenter v. United States decision we discussed here on TCPALand a few months back, Plaintiffs allege that these messages allow the government “to trespass into and hijack” cellular devices without explicit consent, which violates the “Fourth Amendment right to privacy in their cellular devices.”

They further allege that the alerts turn cell phones into “Government loudspeakers” that violate the “substantive First Amendment right to be free of Government-compelled listening.”

“Just as a pamphleteer cannot compel a passerby to accept a screed, so, too, government cannot send messages to peoples’ cellular devices without being invited to do so,” the Plaintiffs state in their complaint.

In 2016, President Obama signed the law requiring FEMA to create a system that lets U.S. Presidents send wireless emergency alerts regarding public safety issues. The law states the “system shall not be used to transmit a message that does not relate to a natural disaster, act of terrorism, or other man-made disaster or threat to public safety.”

The Plaintiffs, however, allege that the guidelines are “unconstitutionally vague” and the “presidential alerts” would subject them to government propaganda and represent a misuse of the 2016 law. “Without more specific definitions…officials — including President Trump — are free to define ‘act of terrorism’ and ‘threat to public safety’ as they see fit, potentially broadcasting arbitrary, biased, irrational and/or content-based messages to hundreds of millions of people,” the complaint asserts.

Though it is only speculation that the president may misuse the alert system and nothing substantiates the idea that FEMA will allow the president to do so, the idea that the government has the ability to deliver an unblockable message, that one may not want, has sparked privacy concerns across the nation. Whether the government could or would abuse the system is perhaps less concerning, than the fact that under the law, all cell phone subscribers in the country are subject to these Presidential Alerts, whether consented to or not.

The Presidential Alert was sent by FEMA in coordination with the FCC and the FCC said it does not collect any data based on the test. So Wednesday’s test Presidential Alert may hardly seem intrusive to many, being nothing more than a vibrating klaxon from their cell phone. While to others, it is a clear invasion of one’s privacy rights.

It will be interesting to see if the New York Plaintiffs’ arguments that these Presidential Alerts are a violation of First and Fourth Amendment rights have any merit and whether any further lawsuits will ensue as a result of the recent Presidential Alert.

Categories: Uncategorized

Leave a Reply