Facebook, Inc. v. Duguid: The Challenges of Regulating Rapidly Changing Technology

HANNA BURT—The Supreme Court’s recent decision in Facebook, Inc. v. Duguid highlighted the growing gap between law and technology and revealed how the Court’s narrow interpretation of regulatory statutes can exacerbate this divide.

The rapid advancement of technology contrasts sharply with the slow evolution of law. As a result, it is estimated that law is about five years behind developing technology. To a certain extent, lag is inevitable. Only a small minority of lawmakers have technical training and their often rudimentary understanding of the complex field they are attempting to regulate hampers efforts to pass effective legislation. Furthermore, even when lawmakers do possess the requisite understanding of existing technology, Congress cannot predict future developments, so they must respond to new technologies as they arise.

But while drafting specific legislation regulating future technology may be impossible, the issue could be mitigated if the Court interpreted existing statutes broadly enough to encompass new technological advancements. Courts could focus on the target of the statute, the result attempting to be regulated, rather than the specific means by which that result is achieved. Unfortunately, the Supreme Court rejected this approach in Facebook, Inc. v. Duguid.

Facebook, Inc. v. Duguid, looked at whether the Telephone and Consumer Protection Act of 1991 (“TCPA”), which restricts abusive telemarketing practices, barred Facebook from sending thousands of unsolicited automatic text messages. Noah Duguid, who has never created a Facebook account, received numerous unsolicited text messages from the company regarding login activity on an account linked to his phone number.  Duguid contacted Facebook and requested an end to the text messages, but his attempts to end the activity were unsuccessful, ultimately leading him to sue.

When it was enacted, the TCPA effectively limited unsolicited robocalls to landlines and prohibited automated or prerecorded phone calls or text messages to cellphones. Looking at the impact of the consumer protections under the TCPA, Facebook’s automated text messages would appear to fall within the activities the Act deterred.

However, the Supreme Court focused not on the behavior being regulated but on the equipment being used to achieve that behavior. Specifically, the TCPA restricts the use of automatic telephone dialing systems that “store or produce a random or sequential number generator.” Thus, the Court held that the TCPA did not apply to Facebook in this instance because Facebook’s notification system did not use a random or sequential number generator.

But this technology, as defined by the 1991 Act, is largely outdated. Companies like Facebook increasingly achieve the same result, sending mass automatic messages and calls, using systems that do not store a random or sequential number generator. And as a result of this ruling, the National Consumer Law Center predicts that companies that are still using the old technology will remodel their systems to mirror Facebook’s in order to avoid the reach of the TCPA, in practice eliminating the consumer protections the Act instituted.

In response to criticism that the ruling would render the Act obsolete, the Court stated that it “cannot rewrite the TCPA to update it for modern technology.” However, the Court could have acknowledged the reality of the challenges of regulating constantly changing technology without rewriting the existing statute. For example, the Court could have followed the Ninth Circuit’s broader interpretation of the law, which held that Facebook’s notification system fell within the definition of an auto dialer because it stored numbers to be called and dialed such numbers automatically.

Alternatively, the Court could have followed Duguid’s interpretation of the statute that focused on an ambiguity in the text, which made it unclear whether “using a random or sequential number generator” qualified both “store” and “produce.” Duguid reasoned that the phrase applied only to “produce,” which was directly before it. Thus, he argued Facebook’s system did not need to use a “random or sequential number generator” when it stored phone numbers and sent automatic text messages in order for the TCPA to apply.

The Supreme Court’s rejection of both above arguments restricts the lifespan of the statute’s effectiveness. Given the rapid pace of technological innovation and Congress’s inability to predict future developments, the Court should interpret statutes such as the TCPA more broadly, so that companies, such as Facebook, are not allowed to use changes in tech as a regulatory loophole. As it stands now, the Supreme Court’s adherence to a narrow statutory interpretation creates yet another barrier to the challenge of regulating technology in a rapidly changing world.