Twitter Text Spam Class Action Lawsuit Order Facing Possible Appeal

Twitter Inc. disagrees with a California federal judge’s order that the social media giant is at the top of the text spam food chain.

U.S. District Judge Vincent Chhabria said that Twitter is responsible for hundreds of unwanted tweets sent as text messages.

Phone Number at Issue

Lead plaintiff Beverly Nunes filed the Twitter text spam class action lawsuit after she received text messages from two Twitter accounts.

The text messages were generated from two Twitter accounts that belonged to Jose Perez, who had previously had the phone number now given to Nunes.

When the phone number belonged to Perez’s phone, he had subscribed to SMS-delivered tweets.

Twitter’s Argument

Twitter insists that Judge Chhabria’s ruling goes against a July 2015 FCC guidance on the Telephone Consumer Protection Act (TCPA).

“In addition to resolving a legal question, the court’s ruling regarding who ‘makes’ or ‘initiates’ a text message is unquestionably a controlling one in this case. If Twitter’s interpretation of the FCC order is correct, it cannot be liable for the messages at issue, and the case will be over,” Twitter said.

“The court’s ruling concerns a matter about which reasonable jurists could disagree and have disagreed: whether the FCC’s order shielding intermediary services from liability under the TCPA adopts a generally applicable test for determining whether modern calling technologies initiate the text messages they transmit, or whether the question of initiation for such technologies turns on who receives that message and whether they consented to receive it,” it said.

The question in this Twitter text spam class action lawsuit seems to be whether technology spews the text messages or if the person who subscribes to receiving such text messages is responsible for receiving them, based on the person’s consent to receive such text messages. It seems to be a modern day version of which came first, the chicken or the egg?

Prior to the July 1 order, Twitter insisted it did not create the unwanted text messages and that it was immune under the Communications Decency Act, but Judge Chhabria disagreed on both counts.

The Communications Decency Act refers to liability from content created by a third party. Judge Chhabria said this does not apply to this Twitter text spam class action lawsuit because Nunes’ claims are not tweet-specific, nor are they based on any assumption that Twitter filters tweets.

The Judge’s Viewpoint

“Twitter contends that because the former owner signed up to receive tweets by text in the future, this means the former owner ‘makes’ all the text-message calls to that number in the future,” Judge Chhabria said. “This is, of course, contrary to the ordinary meaning of the word ‘make’ — when someone signs up to receive a call from someone else in the future, he is not ‘making’ that call when it comes in.”

The plaintiff said that not just any user could send those tweets, and that only Twitter has that capability.

The judge agreed that Twitter was “the only conceivable ‘maker’ of any of these calls.”

He added that the person who authors a tweet does not control who subscribes to receive tweets. Therefore, the author of a tweet “can’t possibly be the maker of the call.”

A hearing on the appeal bid of the Twitter text spam class action lawsuit will be held Aug. 18.

The Twitter Text Spam Class Action Lawsuit is Nunes et. al. v. Twitter inc., Case No. 3:14-cv-02843, in the U.S. District Court for the Northern District of California.

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If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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